Eakins v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

DALE Z. E., Case No. 6:19-cv-00663-AA

OPINION AND ORDER

Plaintiff,

vs.

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

AIKEN, District Judge:

Plaintiff Dale Z. E.1 seeks judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying his claim for Disability

Insurance Benefits (“SSDIB”). This Court has jurisdiction under 42 U.S.C. §§ 405(g)

and 1383(c). For the reasons below, the Commissioner’s decision is affirmed.

1 In the interest of privacy, this opinion uses only first name and the initial of

the last name of the non-governmental party or parties in this case. Where

applicable, this opinion uses the same designation for a non-governmental party’s

immediate family member.

BACKGROUND

On January 5, 2015, Plaintiff filed an application for a period of disability

and disability insurance benefits, alleging disability beginning on October 9, 2014.

Tr. 15. In his initial disability report, Plaintiff cited the following limiting medical

conditions: “Neck injury with spinal stenosis”, “middle back injury”, “lower back

injury with spinal stenosis”, “arthritis of the back”, “nerve pain going down both

arms with limited motion”, “weakness and limited motion in the right leg”, and

“depression.” Tr. 273.

The application was denied initially and upon reconsideration, and on

Plaintiff’s request, a hearing was held before an Administrative Law Judge (“ALJ”)

on August 24, 2017. Id. On March 22, 2018, the ALJ issued a decision finding

Plaintiff not disabled. Tr. 33. On March 8,2019, the Appeals Council denied review,

making the ALJ’s decision the final decision of the Commissioner. Tr. 1. Having

exhausted all administrative remedies, Plaintiff requested review by this Court.

DISABILITY ANALYSIS

A claimant is disabled if he or she is unable to “engage in any substantial

gainful activity by reason of any medically determinable physical or mental

impairment 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). “Social Security Regulations set

out a five-step sequential process for determining whether an applicant is disabled

within the meaning of the Social Security Act.” Keyser v. Comm’r Soc. Sec. Admin.,

648 F.3d 721, 724 (9th Cir. 2011). If the claimant is found not disabled at any step,

there is no need to continue to the process to subsequent steps. See 20 C.F.R. §§

404.1520; 416.920.

The five steps are: (1) Is the claimant presently working in a

substantially gainful activity? (2) Is the claimant’s impairment severe?

(3) Does the impairment meet or equal one of a list of specific

impairments described in the regulations? (4) Is the claimant able to

perform any work that he or she has done in the past? and (5) Are

there significant numbers of jobs in the national economy that the

claimant can perform?

Keyser, 648 F.3d at 724-25; see also Bustamonte v. Massanari, 262 F.3d 949, 954

(9th Cir. 2001). The claimant bears the burden of proof at steps one through four,

at which the burden shifts to the Commissioner at step five. Bustamonte, 262 F.3d

at 953-54. At step five, the Commissioner must show that the claimant can perform

other work that exists in significant numbers in the national economy, “taking into

consideration the claimant’s residual functional capacity, age, education, and work

experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If the

Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§

404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the

claimant is able to perform other work existing in significant numbers in the

national economy, the claimant is not disabled. Bustamonte, 262 F.3d at 953-54.

THE ALJ’S FINDINGS

The ALJ performed the five-step analysis, ultimately concluding that

Plaintiff was not disabled. At step one, the ALJ found that Plaintiff had not engaged

in substantial gainful activity since the alleged onset date of October 9, 2014. Tr. 17.

At step two, the ALJ found that Plaintiff had the following severe

impairments: degenerative disc disease, degenerative joint disease, kidney disease,

obesity, gout and anemia. Tr. 17. The ALJ found that because Plaintiff’s depression

causes no more than “mild” limitation in any of the functional areas, it is non-

severe. Tr. 21.

At step three, the ALJ found that Plaintiff did not have an impairment or

combination of impairments that met or equaled the severity of a listed impairment.

Id. The ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform

light work with the following additional limitations: he can frequently stoop and

crouch. Tr. 22.

At step four, the ALJ found Plaintiff was capable of performing his past

relevant work as a molecular biologist and microbiologist. Tr. 31. Although the

Plaintiff is capable of performing past relevant work, the ALJ continued to step five

to find additional jobs that Plaintiff can perform. Id. At step five, the ALJ found

that in light of Plaintiff’s age, education, work experience and RFC,

“there are other jobs that exist in significant numbers in the national economy that

[Plaintiff] can perform,” including Biological Specimen Technician. Tr. 32. As a

result, the ALJ found that Plaintiff was not disabled. Tr. 32-33.

STANDARD OF REVIEW

An ALJ’s disability determination should be upheld unless it contains legal

error or is not supported by substantial evidence. See Stout v. Comm'r Soc. Sec.

Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); 42 U.S.C. §§ 405(g), 1383(c)(3).

“Substantial evidence” means “more than a mere scintilla but less than a

preponderance.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.

2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).

Additionally, it means “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

The Court must uphold the Commissioner’s decision if it is “supported by

inferences reasonably drawn from the record,” and when the evidence before the

ALJ is subject to more than one rational interpretation, courts must defer to the

ALJ’s conclusion. Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.

2004). “[A] reviewing court must consider the entire record as a whole and may not

affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue,

495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d

880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however,

may not affirm the Commissioner on a ground upon which the Commissioner did

not rely. Stout, 454 F.3d at 1054. Nor may the Court reverse an ALJ’s decision

based on harmless error. Id. at 1055-56.

DISCUSSION

Plaintiff alleges the ALJ erred by (I) improperly rejecting Plaintiff’s

subjective symptom testimony; (II) improperly rejecting medical opinion from Dr.

Faraji and Dr. Roost; (III) improperly assessing non-medical lay witness evidence;

and (IV) failure to incorporate all medical evidence into Plaintiff’s RFC causing

legal error. Without these errors, Plaintiff asserts that the ALJ would find him

disabled.

I. Subjective Symptom Testimony

Plaintiff asserts that the ALJ erred by rejecting the Plaintiff’s subjective

testimony. Defendant responds that the ALJ reasonably discounted Plaintiff’s

testimony as it was inconsistent with Plaintiff’s daily activities, presentation with

the cooperative disability investigations unit (“CDIU”), and the objective medical

record.

To determine whether a claimant’s testimony is credible, an ALJ must

perform a two-stage analysis. 20 C.F.R. § 416.929. The first stage is a threshold test

in which the claimant must produce objective evidence of any underlying

impairment that could reasonably be expected to produce the symptoms alleged.

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). At the second stage of

credibility analysis, absent evidence of malingering, the ALJ must provide clear and

convincing reasons for discrediting the claimant’s testimony regarding the severity

of symptoms. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir.

2008).

To find Plaintiff’s subjective testimony unreliable, the ALJ is required to

make “a credibility determination with findings sufficiently specific to permit the

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

Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). “General findings are

insufficient; rather, the ALJ must identify what testimony is not credible and what

evidence undermines the claimant’s complaints.” Id. (internal quotation marks and

citation omitted). An ALJ may use “ordinary techniques of credibility evaluation” in

assessing a claimant’s credibility, such as prior inconsistent statements concerning

the symptoms, unexplained failure to follow treatment, or a claimant’s daily

activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).

Here, the ALJ found that Plaintiff’s medically determinable impairments

could reasonably be expected to cause the alleged symptoms, but that his

“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.” Tr. 23. “Although lack of medical evidence cannot form the sole basis

for discounting pain testimony, it is a factor that the ALJ can consider in his

credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). However,

“[c]ontradiction with the medical record is a sufficient basis for rejecting the

claimant’s subjective testimony.” Carmickle, 533 F.3d at 1161.

The ALJ found that Plaintiff’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms but 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[.]” Tr. 23.

The ALJ’s conclusion is supported by substantial evidence. First, the ALJ

noted inconsistencies between Plaintiff’s allegations and the medical records. Tr. 23.

“Contradiction with the medical record is a sufficient basis for rejecting the

claimant’s subjective testimony.” Carmickle, 533 F.3d at 1161. In Plaintiff’s

Activities of Daily Living (“ADL”) Report, he claimed that he could not sit more than

10-15 minutes, stand more than 10 minutes, lift a gallon of milk, twist, or bend

without pain. Tr. 293. Plaintiff testified during the ALJ hearing that he required

the use of a cane for support as his right leg goes weak. Tr. 49. Plaintiff also

testified that he has problems with his neck, spine, right arm, and shakiness that

lead to reduced precision in his right hand. Id. Contrary to those claims, medical

providers described Plaintiff as having a normal gait without the use of an assistive

device on multiple occasions throughout the medical record. Tr. 2342, 2398, 2687,

2732-33, 2857, 2866, 3002. Additionally, examinations by two different doctors only

noted an issue for Plaintiff when lifting anything over 20 or 30 pounds. Tr. 3616-25,

2394-95. The record also reflects Plaintiff’s ability to grasp and manipulate items

with his hands without evidence of diminutions. Tr. 2343.

Moreover, the ALJ noted inconsistencies in Plaintiff’s testimony regarding

his mental health status and the record. Tr. 23. During the hearing with the ALJ,

Plaintiff reported that he “doesn’t like being around people anymore,” and that his

memory and attention span have declined. Tr. 47. This statement contrasted with

Plaintiff’s own earlier statement that he does not have any problems getting along

with family, friends, neighbors, or others. Tr. 298. Additionally, Plaintiff’s attention,

language, and memory were noted within normal limits several times throughout

the record. Tr. 3608, 2807, 3589, 3644, 3656, 3770, 3914, 3916. The Court concludes

that the ALJ reasonably considered these inconsistencies in assessing the Plaintiff’s

subjective symptom testimony and that the ALJ’s conclusions are supported by

substantial evidence in the record.

The ALJ also reasoned that Plaintiff’s testimony was inconsistent with his

examinations and presentation at the CDIU investigation. Tr. 23. Plaintiff testified

at the hearing, that he required the use of a cane for support. Tr. 49. However,

during the CDIU investigation, the investigator noted that Plaintiff walked with no

gait disturbance and without the use of any kind of assistive devices. Tr. 3913.

Additionally, Plaintiff sat for the 40-minute interview without needing to adjust his

position. Tr. 3913. At one point during the interview, Plaintiff bent over and picked

up a small dog without any hesitation nor signs of discomfort. Tr. 3915. Plaintiff

also testified that his memory was worsening. Tr. 48. The CDIU report notes that

Plaintiff had “unremarkable recall” and was able to remember “previous addresses,

acquaintances, their information, his prior employers, dates he worked at each job

and significant things [that] occur[ed] [in] his past.” Tr. 3914. The Court concludes

that the ALJ reasonably considered these inconsistencies in assessing Plaintiff’s

subjective symptom testimony and that the ALJ’s conclusions are supported by

substantial evidence in the record.

Finally, the ALJ relied on conflict between Plaintiff’s activities of daily living

and his alleged limitations. Tr. 23. In Plaintiff’s ADL Report, he answered that he

could no longer lift, run, walk, and hunt due to his injuries. Tr. 294. During the

hearing, Plaintiff testified that he could only go on short walks, no more than 200-

300 yards, once or twice a week. Tr.54. But, the record indicates that Plaintiff

engaged in various physical activities including, hunting, fishing, and going to the

gym four times a week for at least 30 minutes each session. Tr. 20, 25, 3760, 3775,

3780. Plaintiff also reported going on a hunting trip for four to five weeks with his

brothers and friends in September of 2015. Tr. 2591. During the CDIU

investigation, Plaintiff further remarked on this trip, saying that when not in the

air-conditioned trailer, they were tracking and hunting for days on end. Tr. 3915. In

August 2016 Plaintiff reported going camping at the coast and being active.

Additionally, he further reported being more active around the house. Tr. 3688. The

Court concludes that the ALJ reasonably considered Plaintiff’s activities of daily

living in assessing Plaintiff’s credibility.

Given the evidence in the record as a whole, the ALJ’s conclusion about the

Plaintiff’s alleged limitations represents a reasonable interpretation and is thus

sufficient to support the ALJ’s conclusion. For the above reasons, the Court

concludes that the ALJ provided adequate support for discounting Plaintiff’s

subjective symptom testimony and the ALJ’s conclusions are supported by

substantial evidence in the record.

II. Medical Source Opinion

Plaintiff contends that the ALJ erred in weighing the opinions from Pari

Faraji, M.D., and Noah Roost, Ph.D. Defendant responds that the ALJ did not err in

providing specific and legitimate examples when weighing the opinions from Dr.

Faraji and Dr. Roost.

The ALJ is responsible for resolving conflicts in the medical record.

Carmickle, 533 F.3d at 1164 (9th Cir. 2008). “As a general rule, more weight should

be given to the opinion of a treating source than to the opinion of doctors who do not

treat the claimant[.]” Turner v. Comm’r Soc. Sec. Admin., 613 F.3d 1217, 1222 (9th

Cir. 2010) (internal quotation marks and citation omitted.) An ALJ may reject the

uncontradicted medical opinion of a treating of examining physician only for “clear

and convincing” reasons supported by substantial evidence in the record. Bayliss v.

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ may reject the contradicted

opinion of a treating or examining doctor by providing “specific and legitimate

reasons that are supported by substantial evidence.” Id. Additionally, an ALJ may

reject medical source opinion evidence that is inconsistent with other medical

opinions of record, or inconsistent with the objective medical evidence. See

Tommasetti, 533 F. 3d at 1041. (ALJ did not err in rejecting medical opinion that

conflicted with objective medical evidence and other medical opinion of record).

Legitimate reasons for rejecting a physician’s opinion may include its reliance on a

claimant’s discredited subjective complaints. Id.

A. Pari Faraji, M.D.

The ALJ offered two reasons for rejecting Dr. Faraji’s medical opinion of

Plaintiff: (1) Dr. Faraji’s assessment did not provide a function-by-function analysis

of the Plaintiff’s remaining abilities; and (2) Dr. Faraji’s assessment of severe

symptoms is inconsistent with the overall medical record. Tr. 28.

First, the ALJ gave Dr. Faraji’s opinion “some weight” as his letter did not

provide a function-by-function analysis. Id. An ALJ may reject an opinion that does

not provide any specific functional limitations. See Meanel v. Apfel, 172 F.3d 1111,

1114 (9th Cir. 1999) (explaining that a doctor’s “mere statement that [claimant]

experienced some diminution in her concentration skills” falls short of an opinion

with specific findings and was therefore not useful in the disability determination).

Here, Dr. Faraji’s letter opinion vaguely concludes that Plaintiff’s symptoms are

still severe, and that his psychiatric illness adversely impacts his function. Tr. 3908.

Dr. Faraji does not elaborate further nor specify Plaintiff’s limitations. As such, Dr.

Faraji’s statement falls short of an informed opinion that Plaintiff’s major

depressive disorder would significantly interfere with his ability to work.

Second, the ALJ determined that Dr. Faraji’s assessment of severe

limitations is inconsistent with the overall medical evidence record. Tr. 28. A fair

reading of the record reveals that Dr. Faraji’s opinion is inconsistent with the brief,

conclusory opinion of that state agency reviewing physician, who indicated that

Plaintiff had only mild limitations in activities of daily living and no limitations in

social functioning, concentration, persistence, and pace. Tr. 30. Thus, the ALJ was

required to provide specific and legitimate reasons supported by substantial

evidence in the record to reject Dr. Faraji’s opinion. The ALJ gave Dr. Faraji’s

opinion “some weight” because it was inconsistent with the overall medical evidence

record, including unremarkable mental health examinations, good symptom control

with medication, inconsistencies between reported symptoms and Plaintiff’s

presentation at the CDIU investigation, and Plaintiff’s most recent treatment notes

showing Plaintiff engaging in hunting fishing, and participating in competitions. Tr.

28.

Although the record reflects that Plaintiff experienced depression over the

years, the ALJ found that the record is inconsistent with Dr. Faraji’s assessment of

Plaintiff’s severe limitations. The ALJ noted that despite Plaintiff’s mental health

diagnosis, medical providers observed Plaintiff as having an intact memory, Tr.

2807, 3589, 3644, 3656, 3770, 3914, 3916, generally intact attention, concentration,

and focus, Tr. 3589, 3914, 3916, as generally pleasant and cooperative, Tr. 3985,

2915, 2957, 2961, 3589, 3913, and with no indications of problems getting along

with others. Tr. 298, 3652. The ALJ also found it important, notwithstanding Dr.

Faraji’s opinion about Plaintiff’s limitations due to his depression, Plaintiff is

observed socializing more and engaging in his hobbies throughout the record. Tr.

28, 3611, 3652, 3663-64. Finally, the ALJ noted that throughout the record,

Plaintiff’s depression symptoms were strongly affected by extrinsic situational

factors. Tr. 28, 3677-78, 3700-01, 3752, 3762. The ALJ relied on these factors in

assessing Dr. Faraji’s opinion that Plaintiff has severe symptoms which adversely

affect his function.

At best, the doctors’ notes throughout the record are inconclusive as to

Plaintiff’s limitations due to his depression. Where medical reports are inconclusive,

the “[Commissioner] is responsible for determining credibility and resolving

conflicts in medical testimony.” Magallanes v. Brown, 881 F.2d 747, 750 (9th Cir.

1989). Consequently, when evidence is susceptible to more than one rational

interpretation, the ALJ’s conclusion must be upheld. See Andrews, 53 F.3d at 1041.

As such, Dr. Faraji’s sparse opinion regarding Plaintiff’s limitations, plus its

inconsistencies with the record, establish that the ALJ did not err in assessing Dr.

Faraji’s opinion.

B. Noah Roost, Ph.D.

Plaintiff asserts that the ALJ erred in according “little weight” to Dr. Roost’s

one time examination in January 2017. Defendant responds that the ALJ

reasonably discounted medical source opinion where they were inconsistent with

the record.

As is the case with the opinion of a treating physician, the ALJ must provide

“specific, legitimate reasons…supported by substantial record evidence” for

discrediting an examining physician’s opinion. Lester v. Chater, 81 F.3d 821, 831

(9th Cir. 1995). Additionally, an ALJ may reject an examining, non-treating

physician’s opinion in favor of a non-examining non-treating physician when he

gives, “specific, legitimate reasons for doing so, and those reasons are supported by

substantial record evidence.” Roberts, 66 F.3d at 184.

Here, the ALJ reasoned that Dr. Roost’s opinion does not comport with the

overall medical record. Tr. 28. These inconsistencies include lack of psychiatric

hospitalization, unremarkable mental health examinations, and indications of

psychosocial stressors. Further, there is evidence of good symptom control and

increased socialization and participation in hobbies. Tr. 28-29. These contradictory

opinions created inconclusiveness in determining Plaintiff’s limitations, leaving the

resolution of conflicts to the authority of the Commissioner. Magallanes, 881 F.2d at

750.

Additionally, where a physician’s opinion of disability is premised largely

upon the claimant’s own accounts of his symptoms, limitations may be disregarded

where those complaints have been properly discounted. Morgan, 169 F.3d at 602. In

this case, Dr. Roost’s report relies largely on claimant’s own testimony of symptoms.

Dr. Roost notes that Plaintiff reported the primary effects of his mental health

symptoms as limiting his social relationships and impaired concentration. Tr. 3607.

He also highlighted Plaintiff’s own fear that his irritability would cause arguments

with his supervisor. Id. Dr. Roost’s conclusion is verbatim of the limitation

statements made by the Plaintiff. Combined with the fact that Plaintiff’s testimony

was discounted above, it is fair for the ALJ to weigh Dr. Roost’s opinion as such.

Accordingly, the ALJ’s reasoning concerning Dr. Roost’s opinion is supported

by substantial evidence and is a reasonable interpretation of the record. And the

ALJ did not err in ascribing “little weight” to Dr. Roost’s opinion.

III. Lay Witness Evidence

Plaintiff contends that the ALJ improperly assessed testimony from

Plaintiff’s ex-wife, J.E., and his brother, S.E. Defendant responds that the ALJ

properly rejected the lay witness evidence for the same reasons it rejected the

Plaintiff’s subjective testimony.

Generally, lay witness testimony describing a plaintiff’s symptoms is

“competent evidence that the ALJ must take into account.” Molina, 674 F.3d at

1114. The ALJ need only give germane reasons to discount the statements of a lay

witness. Id. When the ALJ fails to discuss his reasons for rejecting lay witness

testimony, any such error is harmless when the lay witness alleged substantially

the same limitations to those alleged by the plaintiff and the ALJ provided valid

reasons to reject the plaintiff’s testimony. Molina, 674 F.3d at 1122. An ALJ may

use “ordinary techniques of credibility evaluation” in assessing a claimant’s

credibility, such as prior inconsistent statements concerning the symptoms,

unexplained failure to follow treatment, or a plaintiff’s daily activities. Tommasetti,

533 F.3d at 1039.

J.E. provided a third-party function report in February 2015. Tr. 30. She

reiterated the limitations Plaintiff alleged in his initial claim. She stated that

functionally, Plaintiff had difficulty with various activities including lifting,

squatting, bending, standing, reaching, walking, kneeling, stair climbing and using

his hands. Tr. 309-316. Specifically, she reported that Plaintiff can lift less than 10

pounds, cannot reach above shoulder level for one minute, and that his back hurts

when he squats or bends. Id. J.E. also noted that while Plaintiff can prepare simple

meals, drive, and grocery shop, he does not perform any house or yard work. Id.

S.E. also provided testimony regarding his brother’s abilities in the form of

an undated letter. S.E. testified that his brother’s mobility has decreased to the

point where he can only participate in hunting activities for short distances, and he

stopped playing sports. Tr. 357. He additionally noted that Plaintiff’s attention span

has decreased, and he will drop things more often and complains how unsteady he

is. Id. Per S.E.’s letter, Plaintiff also seems more emotionally withdrawn, “not

wanting to be around people” and often “forgetting things” as if he is preoccupied.

Id.

The ALJ gave little weight to the lay witness statements as to Plaintiff’s daily

activities and alleged limitations and capabilities. Tr. 30. The ALJ determined that

the testimonies were “not consistent with the overall medical record,” nor with the

“Plaintiff’s presentation to the CDIU investigator”. Tr. 30-31. The ALJ pointed to

more specific reasons for attributing little weight, such as treatment notes which

showed “mostly no strength [deficits], [no] sensory or reflex deficits and a normal

gait,” “no surgical treatment undertaken for his spine or neck,” “treatment notes

demonstrating the claimant hunting, fishing, and going to the gym,” and

consultative examination and presentation inconsistencies where “no issues with

pain, range of motion or gait were noted.” Id.

The ALJ rested her decision on the inconsistencies between the Plaintiff’s

testimony and the medical evidence, which is an appropriate and germane reason to

discount Plaintiff’s testimony. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The

ALJ also pointed to the similarities between Plaintiff’s discredited testimony and

the testimony of Plaintiff’s brother and ex-wife. When lay witness testimony

regurgitates the Plaintiff’s discredited testimony, that is sufficient reasoning to

discount lay testimony. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694

(9th Cir. 2009). The Court determines that the ALJ did not err in rejecting the lay

witness testimony from Plaintiff’s ex-wife and brother, where the ALJ reasoned that

the lay witness testimony regurgitated Plaintiff’s discredited testimony.

IV. Residual Functional Capacity Finding

Plaintiff contends that the ALJ erred by failing to incorporate medical

findings into his residual functional capacity (“RFC”). Defendant responds that the

ALJ did not err in incorporating the properly supported limitations into Plaintiff’s

RFC.

The RFC defines what a claimant can do in light of their limitations and

includes all credited limitations that are supported by substantial evidence in the

record. See Bayliss, 427 F.3d at 1217. But an ALJ’s RFC assessment is proper when

the ALJ considers those limitations for which he can find record support. Id. Where

the ALJ credits the opinion of a physician, the ALJ must translate the claimant’s

condition as described in the physician’s opinion into functional limitations in the

RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).

Here, Plaintiff contends that the RFC fails to include all the functional

limitations established by his medical record, Plaintiff’s own testimony, and the lay

witness testimony. However, as discussed above, the ALJ did not err in discounting

that evidence, and therefore was not required to include the discounted limitations

when addressing the RFC.

For example, the ALJ specifically discussed how the Plaintiff’s alleged

debilitations due to his depression were not supported by the objective medical

evidence where results from Plaintiff’s medical evaluations were largely

unremarkable, hospitalization was not required, and where Plaintiff experienced

symptomatic exacerbations due to situational stressors, and thus were not

accounted for in the RFC. Tr. 18-19. While the ALJ stated that the Plaintiff does

suffer from the alleged impairments, the ALJ found that the record did not reflect

the severity of the limitations as alleged by Plaintiff. Tr. 31. As such, the ALJ

appropriately incorporated Plaintiff’s supported limitations into the RFC, limiting

him to light work with the ability to frequently stoop and crouch. Tr. 17-31.

Additionally, the ALJ specifically excluded Plaintiff’s unsupported alleged

limitations because they premised on his discounted subjective limitations. Tr. 31.

Therefore, in this case, the RFC includes all limitations credited by the ALJ

and sufficiently supported by substantial evidence within the record. Britton v.

Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015). Accordingly, the ALJ’s reading of the

record is a reasonable interpretation, and the ALJ did not err in reasonably

assessing Plaintiff’s residual functional capacity.

CONCLUSION

The ALJ’s findings, and the Commissioner’s final decision regarding

Plaintiff’s disability status, are AFFIRMED.

IT IS SO ORDERED.

Dated this _2_8_t_h_ day of __F_e_b_r_u_a_r_y____ 2023.

________/_s_/A__n_n_ _A_i_k_e_n_______

Ann Aiken

United States District Judge