Opinion
CV-21-00117-PHX-DWL (MTM)
06-06-2022
Kristofer Whitaker, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT & RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
At issue is the Commissioner of Social Security Administration's (“SSA” or “Commissioner”) denial of Plaintiff Kristofer Whitaker's Applications for Social Security Disability Insurance (“SSDI”) and Supplemental Security Income (“SSI”) benefits under Titles II and XVI, respectively, of the Social Security Act (“Act”). Plaintiff filed a Complaint (Doc. 1) seeking judicial review of the denial and an Opening Brief (Doc. 23). Defendant SSA filed an Answering Brief (Doc. 28), and Plaintiff filed a Reply (Doc. 29). The Court has reviewed the briefs and Administrative Record (Doc. 19) and recommends that the decision be affirmed.
The page numbers of Doc. 19 cited herein refer to the internal page numbers of the administrative record as opposed to the ECF page numbers.
I. BACKGROUND
Plaintiff filed Applications for SSDI and SSI benefits on June 26, 2018, alleging an onset of disability date of May 3, 2016. Doc. 19 at 18. After initial administrative denials, a hearing was held before Administrative Law Judge (“ALJ”) Dante M. Alegre on May 13, 2020. Id. at 34-64. Plaintiff was 36 years old on the date of alleged onset and held relevant previous employment as a customer service clerk. Id. at 27, 69. Plaintiff's Applications were denied in a decision by the ALJ on August 3, 2020. Id. at 18-27. Thereafter, the Appeals Council denied Plaintiff's Request for Review of the ALJ's decision and this appeal followed. Id. at 3-5; Doc. 1.
Because this case involves claims under both Titles II and XVI of the Act, it is because the provision of the Social Security Act pertaining to the Commissioner's removal for cause (i.e., “neglect of duty or malfeasance in office”), 42 U.S.C. § 902(a)(3), is unconstitutional under the separation of powers doctrine. Doc. 23 at 1, 12-14. However, after extensive briefing from SSA on this issue, Plaintiff withdrew this argument in his Reply. Doc. 29 at 2.
After considering the medical evidence and opinions, the ALJ evaluated Plaintiff's disability claim based on “severe” impairments of post-concussion syndrome, thoracic wedge compression, lumbar degenerative disc disease, headache, and obesity. Doc. 19 at 21. While the ALJ noted that Plaintiff's severe impairments limited his ability to perform basic work activities, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform a range of light work, with a number of additional limitations, and thus was not disabled. Id. at 22.
An “impairment or combination of impairments” is “severe” if it “significantly limits [the] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c).
“[R]esidual functional capacity is the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1).
Plaintiff raises three issues on appeal: whether the ALJ properly discounted the opinion of his treating physician, Dr. Silberman, whether the ALJ erred in failing to give clear and convincing reasons to discount his subjective symptom testimony, and whether the ALJ failed to find that Plaintiff met Listing 11.02. Doc. 23. Plaintiff requests this matter be remanded for an award of benefits. Id. The Commissioner argues that the ALJ's opinion is free of harmful error and must be affirmed. Doc. 28. The Court has reviewed the governed by both 20 C.F.R. Part 404 (governing SSDI applications) and 20 C.F.R. Part 416 (governing SSI applications). Because the respective regulations are substantively identical, the Court will cite only to Part 404 for brevity. medical record and will discuss the pertinent evidence in addressing the issues raised by the parties.
Plaintiff also initially argued that he was “deprived of a valid adjudicatory process”
II. LEGAL STANDARDS
An ALJ's factual findings “shall be conclusive if supported by substantial evidence.” Biestek v. Berryhill, 139 S.Ct. 1148, 1153 (2019). The Court may set aside the Commissioner's disability determination only if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. Generally, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). Whether the Commissioner's decision is supported by substantial evidence “is a highly deferential standard of review.” Valentine v. Comm'r of Soc. Sec., 574 F.3d 685, 690 (9th Cir. 2009). In determining whether to reverse an ALJ's decision, the district court reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001).
To determine whether a claimant is disabled for purposes of the Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is presently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. At step four, the ALJ assesses the claimant's RFC and determines whether the claimant is still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she determines whether the claimant can perform any other work in the national economy based on the claimant's RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id.
III. ANALYSIS
Plaintiff raises three issues on appeal: whether the ALJ properly discounted the opinion of Dr. Silberman, whether the ALJ erred in failing to give clear and convincing reasons to discount his subjective symptom testimony, and whether the ALJ failed to find that Plaintiff met Listing 11.02. The Court will address each in turn.
A. The ALJ did not err in evaluating the medical opinion evidence.
Plaintiff argues that the ALJ abused his discretion in finding Dr. Silberman's opinion not persuasive. Doc. 23 at 17-20. Plaintiff argues that this error requires the Court to remand his case for an immediate award of benefits. Id. The Commissioner argues that the ALJ provided appropriate reasons to find this opinion unpersuasive. Doc. 28 at 19.
As Plaintiff applied for disability benefits after March 27, 2017, the new set of regulations for evaluating evidence from medical providers applies to this case. See 20 C.F.R. § 404.1520c. These regulations eliminate the previous hierarchy of medical opinions and prohibit the ALJ from deferring or giving any specific weight to a particular source's opinion. 20 C.F.R. § 404.1520c(a) (“We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.”); Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022) (“For claims subject to the new regulations, the former hierarchy of medical opinions-in which we assign presumptive weight based on the extent of the doctor's relationship with the claimant-no longer applies.”). “Instead, an ALJ must consider and evaluate the persuasiveness of all medical opinions or prior administrative medical findings from medical sources.” Steele v. Saul, 520 F.Supp.3d 1198, 1209 (D. Alaska 2021) (citation omitted).
Previously, opinions of treating sources were entitled to the greatest-and, in some cases, controlling-weight; opinions of examining sources were entitled to lesser weight; and opinions of non-examining (reviewing) sources were entitled to the least weight. Woods, 32 F.4th at 789; see 20 C.F.R. § 404.1527; see also Burkart v. Comm'r of Soc. Sec. Admin., No. CV-20-08326-PCT-JJT, 2022 WL 1485753, at *3 (D. Ariz. May 11, 2022) (discussing the impact of Woods on the old regulations).
Under the new regulations, the “ALJ's decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence.” Woods, 32 F.4th at 787. An ALJ meets the “substantial evidence” requirement by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). In doing so, the ALJ considers the following factors: (1) supportability from the objective medical evidence and explanations provided by the source; (2) consistency with evidence from other medical and nonmedical sources; (3) the source's relationship with the claimant, including the length, extent, and purpose of the relationship as well as the frequency of examinations; (4) the source's specialization; and (5) any “other factors that tend to support or contradict” the opinion. 20 C.F.R. § 404.1520c(c)(1)-(5). The first two factors-supportability and consistency-are the “most important factors,” and the ALJ must articulate how he considered them. 20 C.F.R. § 404.1520c(b)(2); see Tanya L. L. v. Comm'r of Soc. Sec., 526 F.Supp.3d 858, 866 (D. Or. 2021). The ALJ is generally not required to explain how the other factors were considered. Steele, 520 F.Supp.3d at 1209 (citation omitted); see 20 C.F.R. § 404.1520c(b)(2) (“We may, but are not required to, explain how we considered the factors in paragraphs (c)(3) through (c)(5) of this section ....”).
Dr. Silberman, D.O., Plaintiff's treating physician, opined that Plaintiff could stand and walk less than two hours in an eight-hour workday; sit for about two hours; and never stoop, crouch, climb, or reach overhead. Doc. 19 at 780-84. He further opined that Plaintiff would need to take unscheduled breaks, would miss more than four workdays per month due to his impairments, and could not carry anything more than ten pounds. Id. The ALJ found Dr. Silberman's opinion unpersuasive, reasoning that it was inconsistent with the medical record, including Dr. Silberman's own treatment notes, and Plaintiff's reported activities and improvement with treatment. Id. at 26.
Plaintiff first argues that the ALJ did not consider all of the factors required by 20 C.F.R. § 404.1520c when discounting this opinion and that this error requires reversal. Doc. 23 at 17. Specifically, Plaintiff argues that the ALJ was required to consider the (c)(3) through (c)(5) factors: “the medical source's length of treatment, the purpose of the treatment relationship, the extent of the treatment relationship, whether the medical source had an examining relationship with the claimant, the medical source's specialization, and other factors that might make the medical opinion more of [sic] less persuasive.” Id. While Plaintiff is essentially accurate in listing the factors in the regulations, he leaves out some crucial aspects. As a general matter, the ALJ is only required to consider the first two factors of supportability and consistency. 20 C.F.R. § 404.1520c(b)(2) (“We may, but are not required to, explain how we considered the factors in paragraphs (c)(3) through (c)(5) of this section, as appropriate, when we articulate how we consider medical opinions and prior administrative medical findings in your case record.”). The Regulations make clear that the (c)(3) through (c)(5) factors are only required where “two or more medical opinions or prior administrative medical findings about the same issue are both equally well-supported and consistent with the record but are not exactly the same.” 20 C.F.R. § 404.1520c(b)(3). There is no evidence that this portion of the regulation is applicable in this case and Plaintiff does not so argue. Therefore, the Court finds that the ALJ did not err in failing to consider the (c)(3) through (c)(5) factors.
Plaintiff next argues that the ALJ erred in citing to two entire exhibits, rather than specific pages in the treatment note, for the proposition that Dr. Silberman's opinions were unsupported by his treatment notes. Doc. 23 at 18 (citing Doc. 19 at 26). As an initial matter, the Court notes at the location identified by Plaintiff, the ALJ cites to two full treatment records spanning 175 pages. See Doc. 19 at 26 (citing Doc. 19 at 526-643 (Ex. 9F), 838-94 (Ex. 19F)). While this is not ideal, the ALJ did however cite to specific records of Dr. Silberman in other portions of the decision, including records showing the normal findings referenced to find this opinion unpersuasive. For instance, the ALJ cited to a record from Dr. Silberman showing that Plaintiff had improvement with Botox therapy, and that Plaintiff “feels he is capable of working now.” Id. at 25, 848. The ALJ also found that Dr. Silberman's opinion of work-preclusive impairments conflicted with the medical records showing Plaintiff was improving with treatment and medication, citing to specific records to support this conclusion. Id. at 26 (citing id. at 693, 695, 791).
Here, the Court can make the logical connection here between the ALJ's findings and Dr. Silberman's opinion because the ALJ discussed them elsewhere in the decision. Therefore, the Court finds no error here. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (“An error is harmless . . . ‘if the agency's path may reasonably be discerned,' even if the agency ‘explains its decision with less than ideal clarity.'” (quoting Alaska Dep't of Envtl. Conserv. v. EPA, 540 U.S. 461, 497 (2004)); Dupre v. Berryhill, 765 Fed.Appx. 258, 259 (9th Cir. 2019) (“While the ALJ may have explained her decision ‘with less than ideal clarity,' the ALJ's ‘path may be reasonably discerned.'” (quoting Treichler, 775 F.3d at 1099)).
B. The ALJ provided specific, clear, and convincing reasons supported by substantial evidence for rejecting Plaintiff's symptom testimony.
Plaintiff argues that the ALJ did not provide legitimate reasons to discount his testimony, and therefore, that the Court should remand this matter for an award of benefits. Doc. 23 at 20-23. The Commissioner argues that the ALJ properly examined the medical evidence to determine that the record did not support Plaintiff's testimony as to the severity of his symptoms. Doc. 28 at 15-19.
An ALJ must evaluate whether the claimant has presented objective medical evidence of an impairment “which could reasonably be expected to produce the pain or symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). In evaluating a claimant's pain testimony after a claimant produces objective medical evidence of an underlying impairment, “an ALJ may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). However, the ALJ may “reject the claimant's testimony about the severity of [the] symptoms” provided that the ALJ also explains his decision “by providing specific, clear, and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015). The ALJ may also consider “whether the claimant engages in daily activities inconsistent with the alleged symptoms.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007)). “Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment,” id. at 1113, or where they suggest that “later claims about the severity of [the] limitations were exaggerated,” Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009).
Plaintiff testified that he was unable to perform any work due to physical impairments, including leg and back pain, restricted motion in his neck, and tingling in his shoulders. Doc. 19 at 23. Plaintiff stated that he had to sit and elevate his legs in order to alleviate leg pain. Id.
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to produce the symptoms alleged, but that his statements concerning the intensity, persistence, and limiting effects of those symptoms were not consistent with the medical evidence, including his own statements and testimony regarding activities of daily living. Id. In so finding, the ALJ cited to many specific examples in the record.
Plaintiff first argues that the medical records contain many conflicting views of Plaintiff's symptoms due to a “clerical error,” and that the ALJ should have accounted for these errors. Doc. 23 at 22. For instance, Plaintiff notes that one treatment record states that Plaintiff had “worsening” headaches, while at the same time states that Plaintiff “denies headache, has [headache].” Doc. 19 at 849. Other treatment notes have similar inconsistencies. Id. at 862, 875, 927. Contrary to Plaintiff's arguments here, it is not the case that the ALJ simply used the words “denies headaches” in these records to discount Plaintiff's symptom testimony. Rather, the ALJ discussed the substantive portions of the notes that indicated that Plaintiff reported that his headaches were responding to medications and injection treatments. Id. at 23. Moreover, the ALJ described Plaintiff's reported improvement of his headaches with Botox injections. Id. (citing id. at 512, 1177). The ALJ also noted Plaintiff's reports of improvement in back pain symptoms following medications and physical therapy. Id. at 24 (citing id. at 693, 791, 926). Moreover, the ALJ discussed numerous normal findings appearing throughout the medical record, including normal gait and balance, five out of five strength in all extremities, and normal range of motion and straight leg raise tests. Id. at 24. The Court finds no error here.
As to Plaintiff's activities of daily living, Plaintiff stated that he worked as a school crossing guard, was paid to pick up and drop off scooters that were left around town, worked as a driver for Uber Eats and Lyft, and walked with his wife through antique stores for two to three hours at a time. Id. at 24-25. The ALJ also discussed Plaintiffs statements that he did crafts at home, drove his daughter to school, and did household chores. Id. The ALJ found these activities to be inconsistent with the debilitating symptoms alleged. For instance, as to the job picking up scooters, the ALJ noted that this required transporting scooters from various locations throughout town. Id. Plaintiff is correct that a claimant is not required to be “utterly incapacitated” in order to be found disabled, but it is also true that an ALJ may consider the Plaintiff's daily activities to determine whether they are “inconsistent with the alleged symptoms.” Brown-Hunter, 806 F.3d at 488-89. The ALJ did so here. The Court finds no error in the discussion of Plaintiff's daily activities.
The ALJ also noted that Plaintiff stated on numerous occasions that he wanted to work. Doc. 19 at 527 (“pt feels he can work but with restrictions”); 848 (“patient feels he is capable of working now”). An ALJ may properly consider such statements. See Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009) (“[A]n ALJ may weigh inconsistencies between the claimant's testimony and his or her conduct, daily activities, and work record, among other factors.”).
The ALJ concluded that the examinations in the medical record did not support Plaintiff's claims of disabling limitations, and, therefore, properly found that some of his subjective symptom testimony was not persuasive. While Plaintiff may see this evidence in a different light, the Court cannot second-guess the findings of the ALJ when there is no harmful error in the discussion of the symptom testimony. See Thomas, 278 F.3d at 954 (“Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.”); Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997) (“[T]he key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner's actual finding that claimant is not disabled.”). The Court finds that the ALJ provided specific, clear, and convincing reasons for discounting Plaintiff's symptom testimony. See Brown-Hunter, 806 F.3d at 488-89.
C. The ALJ did not err at step three.
Lastly, Plaintiff argues that his headaches and post-concussion syndrome meet the listing requirements of Listing 11.02 (Epilepsy), and therefore, the ALJ should have found him to be disabled at step three. Doc. 23 at 14-17. The Commissioner argues that the ALJ did not err by failing to consider Listing 11.02 because the Plaintiff made no showing as to how he would have medically equaled this listing. Doc. 28 at 14-15.
At step three of the sequential evaluation, a claimant can establish disability if she shows that her impairment meets or equals the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). “Listed impairments are purposefully set a high level of severity because ‘the listings were designed to operate as a presumption of disability that makes further inquiry unnecessary.'” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (quoting Sullivan v. Zebley, 493 U.S. 521, 532 (1990)). The mere diagnosis of a listed impairment does not establish that a claimant meets or equals a listed impairment. See Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990). Rather, “[f]or a claimant to show that his impairment matches a listing, it must meet all of the specified criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (emphasis added) (quoting Zebley, 493 U.S. at 530). It is the claimant's burden to prove his impairment meets all of the criteria of a listed impairment. Burch, 400 F.3d at 683.
“If a claimant fails to prove that she meets a particular listing but is able to provide sufficient medical findings of equal or greater significance and relating to the same impairment, then the ALJ is to consider the issue of equivalence.” James v. Apfel, 174 F.Supp.2d 1125, 1129 (W.D. Wash. 2001). An unlisted impairment or combination of impairments is equivalent to a listed impairment if medical findings equal in severity to all of the criteria for the one most similar listed impairment are present. Zebley, 493 U.S. at 531; see 20 C.F.R. § 404.1526; SSR 83-19 (stating that an impairment is “equivalent” to a Listing only if claimant's symptoms, signs, and laboratory findings are “at least equivalent in severity” to the criteria for the listed impairment most like claimant's impairment). A determination of medical equivalence must rest on objective medical evidence. Lewis, 236 F.3d at 514 (stating a “finding of equivalence must be based on medical evidence only” (citing 20 C.F.R. § 404.1529(d)(3)).
Here, Plaintiff acknowledges that there is no Listing for headaches or postconcussion syndrome. Doc. 23 at 15. Rather, Plaintiff argues that his headaches and related symptoms are medically equivalent to the Listing for Epilepsy, and thus that the ALJ should have found Plaintiff to have met this Listing. Id.
Listing 11.02B requires dyscognitive seizures occurring at least once a week for at least three consecutive months despite adherence to treatment. Certain severe headache disorders may meet a Listing, even though there is not a separate listing for headache disorders. SSR 19-4p (“While uncommon, a person with a primary headache disorder may exhibit equivalent signs and limitations to those detailed in listing 11.02 (paragraph B or D for dyscognitive seizures), and we may find that his or her MDI(s) medically equals the listing.”).
Here, the ALJ did not consider whether Plaintiff's headaches met the Listing for Epilepsy, but rather, determined that Plaintiff's headaches and post-concussion syndrome were severe impairments. Doc. 19 at 21. Plaintiff argues it was harmful error for the ALJ to not address this issue because “the medical record demonstrates that [Plaintiff's] post concussion syndrome and headaches meet or equal Listing 11.02B.” Doc. 23 at 16. Moreover, Plaintiff argues that he “equals Listing 11.02B which requires dyscognitive seizure occurring at least once a week for three consecutive months despite adherence to prescribed treatment. [He] reports daily headaches and two migraines per week despite exhausting all treatment options.” Doc. 29 at 5. The Court disagrees.
Even assuming the ALJ did not consider Listing 11.02B, any error is harmless because Plaintiff has failed to meet his high burden of supplying medical evidence to support a medical equivalence here. The ALJ found Plaintiff's headaches and postconcussion syndrome to be severe impairments which limited his ability to work. Doc. 19 at 21. These severe impairments were factored into the RFC determination, which concluded that Plaintiff had the ability to work, notwithstanding his severe impairments. Id. at 22-27. As discussed above, the Court has found no error in the examination of the medical evidence or the determination of the RFC for light work in this matter, and therefore, it follows that Plaintiff's headaches and post-concussion syndrome would not have medically equaled the much higher bar of a listing. See Kennedy, 738 F.3d at 1176 (“Listed impairments are purposefully set a high level of severity because ‘the listings were designed to operate as a presumption of disability that makes further inquiry unnecessary.'”). To this extent, any error in the ALJ's failure to expressly consider Listing 11.02B was harmless. See Treichler, 775 F.3d at 1099 (“An error is harmless if it is “inconsequential to the ultimate nondisability determination.'” (citation omitted)).
Plaintiff has not met his burden of establishing, through the production of medical evidence, that he met the medical equivalency of Listing 11.02. Therefore, Plaintiff has not established that the ALJ committed reversible error at step three.
IV. CONCLUSION
The ALJ properly considered the medical opinion testimony; properly discounted Plaintiff's symptom testimony with specific, clear, and convincing reasons supported by substantial evidence; and did not err at step three. Accordingly, IT IS RECOMMENDED that the decision of the Commissioner be affirmed and that the Clerk of Court be directed to terminate this action.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.