Taylor v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

JESSIE T.,1

Plaintiff,

Case No. 6:20-CV-01365-YY

v.

OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

YOU, Magistrate Judge.

Plaintiff Jessie T. seeks judicial review of the final decision by the Social Security

Commissioner (“Commissioner”) denying her application Supplemental Security Income (“SSI”)

under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f. This court has jurisdiction to review the

Commissioner’s decision pursuant to 42 U.S.C. §§ 405(g) and 1383(g)(3). For the reasons set

forth below, that decision is AFFIRMED.

Plaintiff protectively filed for SSI on October 16, 2017, alleging disability beginning on

October 16, 2017. Tr. 13. Her applications were initially denied on March 1, 2018, and upon

reconsideration on July 18, 2018. Id. Plaintiff requested a hearing before an Administrative Law

Judge (“ALJ”), which took place on August 28, 2019. Tr. 27. After receiving testimony from

1 In the interest of privacy, the court uses only plaintiff’s first name and the first initial of his last

name.

plaintiff and a vocational expert, the ALJ issued a decision on September 18, 2019, finding

plaintiff not disabled within the meaning of the Act. Tr. 22. The Appeals Council denied

plaintiff’s request for review on February 24, 2020. Tr. 1-3. Therefore, the ALJ’s decision is the

Commissioner’s final decision and subject to review by this court. 20 C.F.R. § 416.1481.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if it is based on proper

legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C.

§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the

evidence that supports and detracts from the ALJ’s conclusion and “‘may not affirm simply by

isolating a specific quantum of supporting evidence.’” Garrison v. Colvin, 759 F.3d 995, 1009-

10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). This

court may not substitute its judgment for that of the Commissioner when the evidence can

reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746

(9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational

interpretation, the Commissioner’s decision must be upheld if it is “supported by inferences

reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)

(citation omitted); see also Lingenfelter, 504 F.3d at 1035.

SEQUENTIAL ANALYSIS AND ALJ FINDINGS

Disability is the “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in death

or which has lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to

determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 416.920;

Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180

F.3d 1094, 1098-99 (9th Cir. 1999)).

At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since

October 16, 2017, the alleged onset date. Tr. 15. At step two, the ALJ determined plaintiff

suffered from the following severe impairments: fibromyalgia, anxiety, somatic symptom

disorder, and trauma. Tr. 15. The ALJ recognized other impairments in the record, i.e.,

peripheral neuropathy and chronic fatigue syndrome, but concluded these conditions to be non-

severe. Id.

At step three, the ALJ found plaintiff did not have an impairment or combination of

impairments that met or medically equaled a listed impairment. Tr. 16. With respect to

plaintiff’s mental impairments, the ALJ considered the paragraph B and C criteria. Id.

The ALJ next assessed plaintiff’s residual functional capacity (“RFC”) and determined

she could perform light work as defined in 20 C.F.R. §§ 416.967(b) except she can occasionally

climb ladders, ropes, and scaffolds. Tr. 17. The ALJ also found plaintiff can tolerate occasional

contact with the general public. Tr. 17.

At step four, the ALJ found plaintiff unable to perform past relevant work. Tr. 20.

At step five, the ALJ found that considering plaintiff’s age, education, work experience,

and RFC, she could perform jobs that existed in significant numbers in the national economy,

such as inserting machine operator, electronics worker, and assembler. Tr. 21. Thus, the ALJ

concluded plaintiff was not disabled. Id.

DISCUSSION

I. Subjective Symptom Testimony

Plaintiff contends the ALJ improperly discredited her testimony. Pl. Br. 8.

When a claimant has medically documented impairments that could reasonably be

expected to produce some degree of the symptoms complained of, and the record contains no

affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the

severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.”

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that

the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not

credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12

F.3d 915, 918 (9th Cir. 1993). The proffered reasons must be “sufficiently specific to permit the

reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.”

Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the “ALJ’s

credibility finding is supported by substantial evidence in the record, [the court] may not engage

in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

“While subjective pain testimony cannot be rejected on the sole ground that it is not fully

corroborated by objective medical evidence, the medical evidence is still a relevant factor in

determining the severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari,

261 F.3d 853, 857 (9th Cir. 2001); see 20 C.F.R. § 416.929(c)(2) (“we will not reject your

statements about the intensity and persistence of your pain or other symptoms or about the effect

your symptoms have on your ability to work . . . solely because the available objective medical

evidence does not substantiate your statements”).

Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”)

96-7p, governing the assessment of a claimant’s “credibility,” and replaced it with SSR 16-3p.

See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to

“credibility,” clarifies that “subjective symptom evaluation is not an examination of an

individual’s character,” and requires the ALJ to consider all the evidence in an individual’s

record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must

examine “the entire case record, including the objective medical evidence; an individual’s

statements about the intensity, persistence, and limiting effects of symptoms; statements and

other information provided by medical sources and other persons; and any other relevant

evidence in the individual’s case record.” Id. at *4.

Here, the ALJ found that plaintiff’s “medically determinable impairments could

reasonably be expected to cause the alleged symptoms.” Tr. 19. However, the ALJ concluded

that plaintiff’s “statements concerning the intensity, persistence and limiting effects of these

symptoms are not entirely consistent with the medical evidence and other evidence in the record

for the reasons explained in this decision.” Id.

The ALJ found that plaintiff’s statements were “inconsistent because [her] treatment

records do not show that her impairments are as limiting as she has alleged.” Tr. 18. The ALJ

cited to many portions of the record, including: an October 16, 2017 treatment note that showed

“sensation intact in hands and feet despite subjective feelings of diminished sensation,” and a

prescription for Cymbalta to treat “neuropathy versus fibromyalgia versus rheumatoid

arthritis/osteoarthritis” (Tr. 350); January 2018 treatment records showing plaintiff had “never

been to a Rheumatologist and declines to follow-up at this time,” preferring instead to treat with

“nutrition and lifestyle” (Tr. 419-20); March 2018 records in which plaintiff presented with left-

sided neck pain consistent with tension headaches and received medication for muscle tension

(Tr. 424); an April 2018 treatment note indicating plaintiff declined to take Cymbalta due to side

effects (Tr. 405-06), although records did not reflect there was an issue with side effects when

plaintiff was previously prescribed this medication; records from May 2018 showing plaintiff

completed a “Painwise” course but chose not to try any medications (Tr. 436); a June 2018

nutrition diagnosis that revealed plaintiff had numerous misconceptions about food, leading the

nutritionist to suspect plaintiff’s increasing weakness was related to prolonged inadequate

protein intake and a significant decrease in physical activity (Tr. 442); a slip-and-fall report from

July 2018 that described plaintiff was “difficult to assess” because her “pain is out of proportion

to her exam” (Tr. 471); and a May 2019 rheumatology evaluation that showed moderate

fibromyalgia pain and severe dysfunction and recommended a multimodal treatment approach,

including physical and occupational therapy, psychotherapy, and medication, as well as a daily

exercise program and moving and stretching (Tr. 468, 483). Tr. 18-19.

The ALJ concluded that plaintiff’s treatment records showed “a diagnosis of

fibromyalgia with no active treatment beyond encouragement for exercise,” she “consistently

declines medication and has exaggerated experienced side effects to avoid medication,” she “has

presented with pain out of proportion,” and her “lack of ongoing treatment suggests that her

impairments are not as limiting as she has alleged.” Tr. 20.

Plaintiff argues the ALJ “never identified which testimony [the ALJ] found not credible,

and never explained which evidence contradicted that testimony.” Pl. Br. 12. Plaintiff relies on

Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015), where the ALJ “simply stated her non-

credibility conclusion and then summarized the medical evidence supporting her RFC

determination.” Id. at 494. The Ninth Circuit held that “[t]his is not the sort of explanation or

the kind of ‘specific reasons’ we must have in order to review the ALJ’s decision meaningfully,

so that we may ensure that the claimant's testimony was not arbitrarily discredited.” Id.

Here, the ALJ first identified plaintiff’s statements in her function report in which she

stated her ability to work was limited by mental effects of her fibromyalgia, she had difficulty

with focus and concentration, she was easily fatigued, and she was in a constant state of pain and

exhaustion. Tr. 17. The ALJ also noted that, “[a]t the hearing, [plaintiff] testified that she is

limited by migraine headaches that prevent her from functioning for 1 to 1.5 days at a time”; her

fibromyalgia causes aching and pain in her body; she has begun experiencing neuropathy in her

hands and drops things frequently; chronic fatigue results in near constant exhaustion; and her

physical conditions impact her mental functioning, including “fibro fog” where she is unable to

learn and retain information. Tr. 17. Then, as described above, ALJ went into great detail as to

why plaintiff’s statements were “inconsistent because [her] treatment records do not how that her

impairments are as limiting as she has alleged.” Tr. 18.

Contrary to plaintiff’s contention, the ALJ did not merely summarize the treatment

records without identifying specific inconsistences. For example, the ALJ observed that plaintiff

testified that her fibromyalgia caused pain, but explained this was undermined by the fact that

plaintiff declined medication, described pain that was out of proportion, and did not engage in

“ongoing treatment.” Also, plaintiff complained of chronic fatigue; however, the ALJ explained

how there was evidence that plaintiff’s fatigue was related to her diet and lack of exercise. Thus,

there is no error based on Brown-Hunter here.

Plaintiff contends the ALJ failed to properly analyze her fibromyalgia-related symptoms

pursuant to SSR 12-2P. Id. at 11. In support, plaintiff cites Revels v. Berryhill, 874 F.3d 648

(9th Cir. 2017), in which the Ninth Circuit held that the medical evidence must be construed in

light of fibromyalgia’s unique symptoms and diagnostic methods, as described in SSR 12-2P.

Id. at 12.

The Ninth Circuit has recognized that fibromyalgia is “a rheumatic disease that causes

inflammation of the fibrous connective tissue components of muscles, tendons, ligaments, and

other tissue.” Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004). Fibromyalgia is

“diagnosed entirely on the basis of patients’ reports of pain and other symptoms,” and “there are

no laboratory tests to confirm the diagnosis.” Id. at 590; see Revels, 874 F.3d at 657 (“[The]

diagnosis of fibromyalgia does not rely on X-rays or MRIs.”). Common symptoms include

“chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of

sleep disturbance that can exacerbate the cycle of pain and fatigue associated with this disease.”

Benecke, 379 F.3d at 590. Individuals suffering from fibromyalgia have “muscle strength,

sensory functions, and reflexes that are normal,” their “joints appear normal, and further

musculoskeletal examination indicates no objective joint swelling.” Revels, 874 F.3d at 656

(internal quotations omitted). “SSR 12-2P recognizes that the symptoms of fibromyalgia ‘wax

and wane,’ and that a person may have ‘bad days and good days.’” Id. at 657 (quoting SSR 12-

2P at *6)).

Plaintiff takes issue with the ALJ’s finding that she consistently declined medication and

did not engage in ongoing treatment. Pl. Br. 12. An ALJ may consider an unexplained or

inadequately explained failure to seek treatment or to follow a prescribed course of treatment in

assessing a claimant’s testimony. Tommasetti, 533 F.3d at 1039; see also Sanders v. Saul, No.

CV-18-0266-TUC-LCK, 2019 WL 2996058, at *4 (D. Ariz. July 9, 2019) (finding the plaintiff’s

choice not to use available prescription medications for fibromyalgia, without explanation, was a

specific, valid reason to find her symptom testimony not fully credible).

The ALJ discounted plaintiff’s testimony because “[t]reatment records from January

2018 show that [plaintiff] had not seen a rheumatologist regarding her fibromyalgia and declined

a referral.” Tr. 18 (citing Tr. 419-20). The ALJ also cited plaintiff’s stated preference not to “be

on pills” and her intention to instead treat with nutrition and lifestyle. Tr. 18 (citing Tr. 419-20).

Indeed, records from January 3, 2018, indicate that plaintiff “has never been to a Rheumatologist

and declines to follow-up at this time.” Tr. 420. In fact, plaintiff did not see a rheumatologist

until May 2019. Tr. 465. The January 3, 2018 records also show that plaintiff declined

Cymbalta because she “does not want to be on pills.” Tr. 419. Instead, plaintiff stated “[s]he

would like to work on nutrition and lifestyle to reduce her pain currently.” Tr. 420.

But, as the ALJ observed, a nutritionist found that plaintiff had “numerous

misconceptions about food.” Tr. 18 (citing Tr. 442). The nutritionist noted, for example, that

plaintiff claimed to have a gluten intolerance, but she ate some types of bread, including

sourdough and white bread, and had tested negative for Celiac disease. Id. (citing Tr. 442). The

ALJ pointed to the fact that plaintiff was diagnosed with “[i]nadequate protein intake” and that

her “nutritionist suspected her increasing weakness was related to prolonged inadequate protein

and a significant decrease in physical activity.” Id. In fact, the nutritionist’s report states that

plaintiff’s “reduction in strength may be related to a decline in skeletal muscle as a result of

prolonged inadequate protein intake, as well as a significant decrease in physical activity,

especially resistance exercises.” Tr. 442. Records dating back to July 2011 indicate that

plaintiff’s “[d]iet may . . . be low in protein,” Tr. 232, and in May 2019, she reported that her

current exercise was “[n]one.” Tr. 466.

In sum, plaintiff rejected the recommendation of medical professionals to see a

rheumatologist and take medication, and instead unsuccessfully pursued an alternative course of

treatment including nutrition about which she had “misperceptions” and exercise that she did not

perform. The ALJ properly discounted plaintiff’s testimony based on her inadequately explained

failure to seek treatment or to follow a prescribed course of treatment. Tommasetti, 533 F.3d at

1039. This was a specific, clear and convincing reason to discount her testimony and is

supported by substantial evidence in the record.2

Plaintiff also claims the ALJ erred in finding that she exaggerated side effects to avoid

taking Cymbalta. The ALJ observed that plaintiff had been prescribed Cymbalta in 2014 but

explained that treatment notes from that time period do not reflect the side effects she reported in

2018. Tr. 18. Records show plaintiff started Cymbalta in August 2014 and was told to let the

provider know how she was doing with the initial 40 mg daily dosage. Tr. 307. In January

2015, she described the Cymbalta was “not so helpful.” Tr. 313. As the ALJ observed, the

records contain no mention that plaintiff complained of any side effects. Other records show she

stopped taking Cymbalta because she “does not want to be on pills” and chose to work on

nutrition and lifestyle to reduce her pain. Tr. 419, 420. The ALJ’s decision is supported by

substantial evidence.

Finally, plaintiff argues the ALJ erred in finding her pain was “out of proportion,”

because “[d]isproportionate pain is typical and characteristic of fibromyalgia.” Pl. Br. 12. In

this regard, the ALJ cited to July 20, 2018 records indicating that plaintiff slipped on some wet

flooring in a department store three days prior. Tr. 19 (citing Tr. 469). Although she landed

only on her right side, she complained it had “flared up her entire body pain” and she could not

“isolate her pain to one spot.” Id. However, an x-ray of her right wrist showed no fracture, Tr.

473, and an exam of that wrist showed full passive range of motion, no erythema, swelling,

deformity, or ecchymosis, and “[p]ain out of proportion to exam.” Tr. 471. A right elbow exam

2 Plaintiff argues that her OHSU Fibromyalgia Clinic records do not indicate a recommendation

for Cymbalta. Reply 4. However, the records indicate that “[i]deally, [plaintiff] needs a

multimodal approach which will include physical and occupational therapy, psychotherapy, and

medications.” Tr. 467 (emphasis added).

showed full active range of motion and no tenderness to palpation, id., and a right shoulder exam

showed full passive range of motion, “5/5 strengths,” and “[p]ain out of proportion to light touch

throughout.” Id. A neck exam also showed “[p]ain out of proportion to light palpitation.” Id.

Thus, the ALJ rejected plaintiff’s subjective symptom testimony based on the opinion of

a medical professional who, despite being aware of plaintiff’s fibromyalgia diagnosis, observed

that plaintiff’s complaint about “entire body pain” was “out of proportion” to the slip-and-fall

injury she had sustained.3 Tr. 469. As noted, the Ninth Circuit has cautioned that those

suffering from fibromyalgia “have muscle strength, sensory functions, and reflexes that are

normal.” Revels, 874 F.3d at 656; see Martin v. Saul, No. 2:18-CV-02911 CKD, 2020 WL

1305619, at *6 (E.D. Cal. Mar. 19, 2020) (finding ALJ erred in rejecting a doctor’s opinion

regarding the plaintiff’s fibromyalgia on the basis that the assessed limitations were “out of

proportion to objective evidence” where there were “findings [of] normal range of motion in all

joints, normal gait, normal motor function, 5/5 muscle strength in the upper and lower

extremities, normal reflexes and intact sensation”). But even if the ALJ committed error here, it

is harmless, as the ALJ proffered other specific, clear and convincing reasons to discount

plaintiff’s subjective symptom testimony.

II. Dr. Karsten Johnson, D.O.

Plaintiff contends the ALJ erred by improperly discrediting examining physician Dr.

Karsten Johnson, D.O. Pl. Br. 13.

Plaintiff filed an application for benefits on October 16, 2017. Under the new

regulations, effective for claims filed on or after March 27, 2016, ALJs no longer “weigh”

3 Dr. Johnson, who performed a musculoskeletal exam on January 20, 2018, also reported that

during the exam, plaintiff’s “pain seemed somewhat out of proportion to the exam with poor eye

contact. It appeared as if everything hurt with every type of range of motion testing.” Tr. 395.

medical opinions, but rather determine which are most “persuasive.” 20 C.F.R. §§ 404.1520c(a)-

(b), 416.920c(a)-(b). To that end, controlling weight is no longer given to any medical opinion.

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5867-68

(available at 2017 WL 168819); see also 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the

Commissioner evaluates the persuasiveness of all medical opinions based on (1) supportability,

(2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors, such

as “evidence showing a medical source has familiarity with the other evidence in the claim or an

understanding of our disability program’s policies and evidentiary requirements.” 20 C.F.R.

§§ 404.1520c(a), (c)(1)-(5), 416.920c(a), (c)(1)-(5). The factors of “supportability” and

“consistency” are considered to be “the most important factors” in the evaluation process. 20

C.F.R. §§ 404.1520c(c), 416.920c(c).

The new regulations require an ALJ to articulate how persuasive the ALJ finds the

medical opinions and to explain how the ALJ considered the supportability and consistency

factors. 20 C.F.R. §§ 404.1520c(a), (b), 416.920c(a), (b); see Tyrone W. v. Saul, No. 3:19-CV-

01719-IM, 2020 WL 6363839, at *7 (D. Or. Oct. 28, 2020). “The ALJ may but is not required to

explain how other factors were considered, as appropriate, including relationship with the

claimant (length, purpose, and extent of treatment relationship; frequency of examination);

whether there is an examining relationship; specialization; and other factors, such as familiarity

with other evidence in the claim file or understanding of the Social Security disability program’s

policies and evidentiary requirements.” Linda F. v. Comm’r Soc. Sec. Admin., No. C20-5076-

MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020). However, ALJs are required to

explain “how they considered other secondary medical factors [if] they find that two or more

medical opinions about the same issue are equally supported and consistent with the record but

not identical.” Tyrone, 2020 WL 6363839, at *6 (citing 20 C.F.R. §§ 404.1520c(b)(2) and

404.1520c(b)(3)).

The court must continue to consider whether the ALJ’s decision is supported by

substantial evidence. See Revisions to Rules, 82 Fed. Reg. at 5852 (“Courts reviewing claims

under our current rules have focused more on whether we sufficiently articulated the weight we

gave treating source opinions, rather than on whether substantial evidence supports our final

decision.”); see also 42 U.S.C. § 405(g).

As an initial matter, the parties disagree about the relevance of Ninth Circuit case law in

light of the amended regulations. Specifically, the parties dispute whether an ALJ is still

required to provide specific and legitimate reasons for discounting a contradicted opinion from a

treating or examining physician. Compare Def. Br. 11 with Reply 5. The Commissioner argues

“[c]ase law creating a hierarchy of medical opinions and requiring ALJs to provide ‘clear and

convincing’ or ‘specific and legitimate’ reasons for rejecting certain medical opinions has been

superseded by the new governing regulations.” Def. Br. 11.

The Ninth Circuit has not yet considered whether the revision of the 2017 regulations

requires re-evaluation of the “specific and legitimate” standard for review of medical opinions.

See Robert S. v. Saul, No. 3:19-CV-01773-SB, 2021 WL 1214518, at *4 (D. Or. Mar. 3, 2021),

report and recommendation adopted, 2021 WL 1206576 (D. Or. Mar. 29, 2021) (collecting

cases). Nevertheless, “[e]ven under the Commissioner’s new regulations, the ALJ must

articulate why he has rejected the opinion” and “the Ninth Circuit’s ‘specific and legitimate

standard’ is merely a benchmark against which the Court evaluates that reasoning.” Scott D. v.

Comm’r Soc. Sec., No. C20-5354 RAJ, 2021 WL 71679, at *4 (W.D. Wash. Jan. 8, 2021); see 20

C.F.R. §§ 404.1520c(a). The court therefore considers whether the ALJ adequately addressed

the persuasiveness, including the supportability and consistency, of the medical opinions.

The ALJ observed that Dr. Johnson, a consultative examiner, performed a comprehensive

musculoskeletal exam in which he concluded that plaintiff should be “limited to standing for no

more than 4 hours during and 8-hour workday and walking for no more than 3 hours during an 8-

hour workday.” Tr. 20 (citing Tr. 387-96). Dr. Johnson also “found limitations in crouching,

crawling, running and in carrying items over 25 pounds,” and noted plaintiff “exhibited pain with

every type of range of motion testing.” Id. The ALJ found “[t]his opinion is not persuasive

because Dr. Johnson fails to articulate if the functional limitations result from [plaintiff’s]

impairments or from her pain allegations.” Id. The ALJ observed, “[i]t appears that the

limitations result from [plaintiff’s] pain allegations because Dr. Johnson’s range of motion table

demonstrates normal range of motion in most areas tested.” Id. (citing (SF/8-9)). The ALJ

concluded, “[i]n light of [plaintiff’s] lack of treatment and full range of motion, the above RFC

does not include postural limitations other than for climbing ladders, ropes and scaffolds.” Id.

Plaintiff argues the ALJ again failed to consider SSR 12-2p and “attempted to draw a line

between Plaintiff's subjective reporting of pain and Plaintiff's normal strength and sensation test

results.” Id. Plaintiff contends that fibromyalgia “is characterized by ‘muscle strength, sensory

functions, and reflexes [that] are normal,’” Pl. Br. 14 (quoting Rollins, 261 F.3d 853, 863), but

the “ALJ did not consider that Plaintiff's underlying disorder sufficiently explained any

discrepancy between observable strength and sensation and Dr. Johnson’s functional

assessment.” Id.

The ALJ limited plaintiff to light work, which is not inconsistent with Dr. Johnson’s

opinion that plaintiff should be “limited to standing for no more than 4 hours during and 8-hour

workday and walking for no more than 3 hours during an 8-hour workday.” See 20 C.F.R. §

416.967(b) (defining light work as “lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pounds” and explaining that a “job is in this category

when it requires a good deal of walking or standing, or when it involves sitting most of the time

with some pushing and pulling of arm or leg controls”). SSR 83-10 provides that “the full range

of light work requires standing or walking, off and on, for a total of approximately 6 hours of an

8-hour workday.” However, while limiting a claimant “to only 3 hours of standing or walking is

inconsistent with ‘the full range of light work,’” it is “not inconsistent with ‘light work.’”

Whitcher v. Saul, No. 1:18-CV-00377-REB, 2020 WL 2771946, at *10 (D. Idaho May 27,

2020); see also Devore v. Comm’r of Soc. Sec., No. 1:14-cv-00663-SAB, 2015 WL 3756328, *4

(E.D. Cal. June 16, 2015) (“the limitation of four hours standing/walking is not necessarily

inconsistent with the ‘light work’ jobs identified by the DOT”); Lewis v. Berryhill, No. ED CV

16-01028-DFM, 2017 WL 3498625, at *5 (C.D. Cal. Aug. 15, 2017) (“there was no conflict”

between a limitation to standing/walking for up to four hours and the DOT description for the

light jobs of electronics worker and bench assembler); Saiz v. Astrue, No. EDCV 11–00290–

MAN, 2012 WL 1155946, at *4 (C.D. Cal. Apr. 6, 2012) (“not all light work jobs

require standing or walking” for six hours out of an eight-hour workday, and therefore there was

no conflict between an RFC precluding a plaintiff from standing for more than four hours and

the light work of bench assembler).

The ALJ rejected Dr. Johnson’s “postural limitations other than for climbing ladders,

ropes and scaffolds.” But, as the Commissioner correctly observes, the jobs identified by the

ALJ at step five do not require climbing, balancing, stooping, kneeling, crouching, or crawling.

Def. Br. 13; see DOT 206.685-018, available at 1991 WL 671755 (inserting-machine operator);

DOT 726.687-010, available at 1991 WL 679633 (electronics worker); DOT 739.687-030,

available at 1991 WL 680180 (assembler, small products II). Therefore, even if the ALJ erred in

assessing Dr. Johnson’s medical opinion, it is harmless. See Simmons v. Colvin, 639 F. App’x

446, 447 (9th Cir. 2016) (finding “any error in failing to incorporate certain postural limitations

into the RFC was harmless because none of the jobs the ALJ identified at step four of the

sequential analysis require climbing, balancing, stooping, kneeling, crouching, or crawling”);

Stubbs–Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (finding the ALJ’s failure to

incorporate all of the postural limitations identified by the claimant’s physicians was harmless

error because it did not erode the number of jobs the claimant could do).

III. State Agency Physicians

Plaintiff argues that the ALJ erred in rejecting the opinions of Dr. Kehrli and Dr. Nisbet,

the state agency physicians, without properly considering SSR 12-2p. Pl. Br. 15. Drs. Kehrli

and Nisbet opined that plaintiff could perform light work but had postural limitations regarding

frequent climbing, stooping, kneeling, crouching, and crawling. Tr. 63, 80-81. Again, as

discussed above, this error is harmless because none of the occupations the ALJ identified at step

five involve those postural limitations.

IV. The Lay Witness Testimony

Plaintiff argues that the ALJ erred in failing to consider the lay witness statement of her

mother. Pl. Br. 17.

For claims filed on or after March 27, 2017, new regulations provide that the ALJs are

“not required to articulate how [they] considered evidence from nonmedical sources.” 20 C.F.R.

§§ 404.1520c(d); 416.920c(d). Consequently, there is an argument the ALJ is no longer required

to provide reasons that are germane to reject lay witness testimony. See Wendy J.C. v. Saul, No.

3:19-cv-01434-AC, 2020 WL 6161402, at *13 n.9 (D. Or. October 21, 2020) (“The new

regulations provide the ALJ is ‘not required to articulate how [they] considered evidence from

nonmedical sources . . . .’ 20 C.F.R. §§ 404.1520c(d) (2019), 416.920c(d). As such, the ALJ is

no longer required to provide reasons germane to lay witnesses to reject their testimony.”)

(alterations in Wendy J.C.); but see Tanya L. L. v. Comm’r Soc. Sec. Admin., No. 3:20-CV-

00078-BR, 2021 WL 981492, at *7 (D. Or. Mar. 16, 2021) (finding that that § 404.1520c(d)

“do[es] not eliminate the need for the ALJ to articulate his assessment of the lay-witness

statements”).

The ALJ did not mention plaintiff’s mother’s statements in the decision. See Tr. 15-22.

But plaintiff’s mother’s statements were similar to plaintiff’s own subjective complaints. Thus,

to the extent the ALJ gave a clear and convincing reason supported by substantial evidence to

discount plaintiff’s subjective complaints, and plaintiff’s mother’s testimony repeated plaintiff’s

complaints, any error by the ALJ in failing to consider plaintiff’s mother’s testimony is harmless.

See Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (holding that “[w]here lay witness

testimony does not describe any limitations not already described by the claimant, and the ALJ’s

well-supported reasons for rejecting the claimant’s testimony apply equally well to the lay

witness testimony,” the failure to address the lay testimony may be deemed harmless).

ORDER

The Commissioner’s decision is AFFIRMED.

DATED January 3, 2022.

/s/ Youlee Yim You

Youlee Yim You

United States Magistrate Judge