# Luft v. Commissioner Social Security Administration

> District Court, D. Oregon · July 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10396223

## Case

- **Court:** District Court, D. Oregon
- **Decided:** July 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10396223

## How later opinions describe it (automated extraction)

- noting “[w]e may not reweigh the evidence or substitute our judgment for that of the ALJ”
- affirming the ALJ's credibility finding when the plaintiff's testimony of weight fluctuation was inconsistent with the medical record

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

WENDY L.,1 No. 6:22-cv-00515-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,

Defendant.

Betsy R. Shepherd
425 Riverwalk Manor Dr.
Dallas, GA 30132

Attorney for Plaintiff

Kevin Danielson
Executive Assistant United States Attorney
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204

1 In the interest of privacy, this Opinion uses only the 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.
Jacob Phillips
Social Security Administration
Office of the General Counsel
6401 Security Boulevard
Baltimore, MD 21235

Attorneys for Defendant.

HERNÁNDEZ, District Judge:

Plaintiff Wendy L. brings this action seeking judicial review of the Commissioner’s final
decision to deny disability insurance benefits (“DIB”) and supplemental security income (“SSI”).
This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. §
1383(c)(3)). The Court affirms the Commissioner’s decision.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB and SSI on December 10, 2018 and March 5, 2019, respectively,
alleging an onset date of September 3, 2015. Tr. 16.2 Plaintiff’s date last insured (“DLI”) is
March 31, 2018. Tr. 17. Her application was denied initially and on reconsideration. Tr. 77, 104-
06.
On January 12, 2021, Plaintiff appeared with counsel for a hearing before an
Administrative Law Judge (“ALJ”). Tr. 36-76. On March 4, 2021, the ALJ found Plaintiff not
disabled. Tr. 13-35. The Appeals Council denied review. Tr. 1-7.
FACTUAL BACKGROUND
Plaintiff alleges disability based on PTSD, back problems, and depression. Tr. 252. At the
time of her alleged onset date, she was 38 years old. Tr. 248. She has a high school education

2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative
record, filed herein as Docket No. 9.
and past relevant work experience as an electronics technical customer service representative
(Dictionary of Occupational Titles number (“DOT”) 249.362-026). Tr. 29.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if they are 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), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step
procedure. See Valentine v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases,
agency uses five-step procedure to determine disability). The claimant bears the ultimate burden
of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,
140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines
whether the claimant has a “medically severe impairment or combination of impairments.”

Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not
disabled. Id.
In step three, the Commissioner determines whether the claimant’s impairments, singly
or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;
20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.”
20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the
claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to
the Commissioner. In step five, the Commissioner must establish that the claimant can perform
other work. Yuckert, 482 U.S. at 141–42; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the
Commissioner meets their burden and proves that the claimant can perform other work that

exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566,
416.966.
THE ALJ’S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity after her alleged onset date through her date last insured. Tr. 19. Next, at steps two and
three, the ALJ determined that Plaintiff has the following severe impairments: “minor
degenerative disc disease, stenosis, spondylosis, and facet syndrome of the lumbar spine with
radiculopathy; chronic compression fractures and mild spondylosis of the thoracic spine;
sacroiliitis; obesity; an affective disorder (called either major depressive disorder or depression);

anxiety (also called panic disorder by her social worker); and posttraumatic stress disorder
(“PTSD”) (20 CFR 404.1520(c) and 416.920(c)).” Tr. 19. However, the ALJ determined that
Plaintiff’s impairments did not meet or medically equal the severity of a listed impairment. Tr.
20. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform
light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following limitations:
[T]he claimant can occasionally lift/carry 20 pounds and frequently lift/carry ten
pounds. She can stand and/or walk four hours and sit six hours of an eight-hour
workday. The claimant can never climb ladders, ropes, or scaffolds, and she can
occasionally balance, stoop, kneel, crouch, crawl, or climb ramps and stairs. She
can tolerate no exposure to hazards, including machinery with moving parts,
unprotected heights, or operating heavy machinery. Mentally, she is limited to
understanding, remembering, carrying out, and maintaining attention and
concentration on no more than simple tasks and instructions, defined specifically
as those job duties that can be learned in up to 30 days’ time. She can sustain only
ordinary routines and make no more than simple, work-related decisions.

Tr. 23. Because of these limitations, the ALJ concluded that Plaintiff could not perform her past
relevant work. Tr. 29. But at step five, the ALJ found that there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform, such as router clerk (DOT 222.587-
038), storage rental clerk (DOT 295.367-026), and marking clerk (DOT 209.587-034). Tr. 30.
Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 30.
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the
Commissioner’s findings “are based on legal error or are not supported by substantial evidence
in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal
quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (internal quotation marks omitted). The court considers the record as a
whole, including both the evidence that supports and detracts from the Commissioner’s decision.
Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is
susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed.”
Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either
a grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s.”) (internal

quotation marks omitted).
DISCUSSION
Plaintiff argues the ALJ erred by: (1) improperly discounting Plaintiff’s subjective
symptom testimony; (2) incorrectly evaluating the medical evidence; and (3) failing to provide
germane reasons for disregarding lay witness testimony, and (4) failing to include relevant
limitations in questions to the Vocational Expert at step five. This Court disagrees.
I. Subjective Symptom Testimony
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL
5180304, at *1 (Oct. 25, 2017). The ALJ engages in a two-step analysis for subjective symptom

evaluation. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (superseded on other
grounds). First, the ALJ determines whether there is “objective medical evidence of an
underlying impairment which could reasonably be expected to produce the pain or other
symptoms alleged.” Id. (internal quotations omitted). Second, “if the claimant has presented such
evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and
convincing reasons in order to reject the claimant’s testimony about the severity of the
symptoms.” Id. (internal quotations omitted).
When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a
claimant’s testimony by simply reciting the medical evidence in support of his or her residual
functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).
Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and
must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195
(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons
proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ
did not arbitrarily discount the claimant’s testimony.”).
Plaintiff alleged she was unable to work due to back problems, depression, and
posttraumatic stress disorder. The ALJ summarized Plaintiff’s hearing testimony as follows:
[D]ue to her pain, she cannot sit for longer than ten minutes, stand in one place for
long, carry a gallon of milk 20 steps, or maintain any one position for long with
pain; and must lie down with a dangerously hot heating pad to control the pain in
her tailbone. As a result of her anxiety, depression, and PTSD, she has difficulty
performing household chores and grooming herself; experiences nightmares,
flashbacks, hypervigilance, and crying spells; and is unable to deal with stress, take
constructive criticism, or pay attention sufficiently to finish conversations with
others.

Tr. 24
The ALJ found Plaintiff’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms and did not identify evidence of malingering. Tr. 24.
However, the ALJ concluded that Plaintiff’s statements concerning the intensity, persistence and
limiting effects of her symptoms were not entirely consistent with the medical evidence and
other evidence in the record. Tr. 24. Specifically, the ALJ found Plaintiff’s symptom allegations
were inconsistent with the objective medical evidence and treatment history, inconsistent with
Plaintiff’s activities of daily living and that Plaintiff’s conditions improved with treatment.
A. Objective Medical Evidence
The ALJ is instructed to evaluate objective evidence in considering a claimant's symptom
allegations. 20 C.F.R. § 416.929(c)(2) (“Objective medical evidence ... is a useful indicator to
assist us in making reasonable conclusions about the intensity and persistence of your
symptoms[.]”). Indeed, “[w]hen objective medical evidence in the record is inconsistent with the
claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.”
Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022)(emphasis in original); see also Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (affirming the ALJ's credibility finding when the
plaintiff's testimony of weight fluctuation was inconsistent with the medical record). And in
some cases, the ALJ can discount claimant testimony when that testimony is not supported by
the objective medical record. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th
Cir. 2007) (“‘Graphic and expansive’ pain symptoms could not be explained on objective,
physical basis by claimant's treating physician.”); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.
2005) (ALJ could consider mild findings on MRIs and X-rays in discounting the plaintiff's

testimony as to her back pain).
The ALJ reasonably discounted Plaintiff’s testimony about her physical limitations for
their contradiction with objective medical evidence in the record. Plaintiff testified that she had
extreme lower back pain and could walk for just three to five minutes and lift only five pounds;
was unable to stand upright long enough to even wash her hands; and needed to lay down with a
heat pad for the majority of each day. Tr. 51, 53, 275. As the ALJ recognized, this testimony
stands in contrast to evidence that Plaintiff walked with a normal gait and had adequate strength.
See, e.g., Tr. 422, 425, 432. The ALJ further explained that diagnostic studies were “described
too modestly to adequately explain the severity” of limitations Plaintiff alleged. Tr. 25. Indeed,

lower back imaging in October 2018 was unremarkable, resulting in a “[n]egative lumbar spine
examination.” Tr. 427. Two years later, in October 2020, X-rays showed only “minor
degeneration at L4-L5,” and her doctor concluded that there were “[n]o acute changes to account
for her pain” and simply recommended “gentle stretching and range of motion exercises.” Tr.
942; see also Tr. 1403 (the October 2020 imaging showing only “Minor L4-5 and L5-S1 disc
degeneration.”). These objective medical records, and many unremarkable physical
examinations, further suggest Plaintiff’s testimony that she felt like somebody had “taken a
sledgehammer to [her] tailbone,” was overstated. Tr. 48. This is a clear and convincing reason,
supported by substantial evidence, for the ALJ to cite to discount Plaintiff’s subjective symptom
testimony.
B. Improvement with Treatment
An ALJ may reject a claimant’s symptom testimony if that testimony is contradicted by
evidence in the medical record. Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1161

(9th Cir. 2008). If the record shows a claimant’s symptoms have improved with treatment, that
improvement is “an important indicator of the intensity and persistence of ... symptoms.” 20
C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). The Ninth Circuit has held that “evidence of medical
treatment successfully relieving symptoms can undermine a claim of disability.” Wellington v.
Berryhill, 878 F.3d 867, 876 (9th Cir. 2017).
Here, the ALJ reasonably concluded that Plaintiff’s conditions improved with
treatment, which undermined her hearing testimony concerning the severity of her symptoms.
Tr. 20-21. As noted above, an ALJ should consider the type and effectiveness of treatment in
weighing the claimant’s allegations. 20 C.F.R. § 404.1529(c)(3)(iv)-(v). For example, the ALJ

found that while Plaintiff described her pain as “not adequately controlled,” Plaintiff’s
functioning improved significantly through physical therapy early in the relevant period to the
point where she was able to carry 20 pounds, reported significant reduction of pain and
increased mobility, and admitted that her pain had improved nearly to where it had been before
her car accident just a few months earlier. Tr. 25, 1040, 1042, 1052, 1064-65, 1067, 1148,
1155. When her physical therapy ended in January 2016, Plaintiff reported she was “able to
bend forward now without pain,” her back pain was “less frequent” with only occasional “flare
ups,” and on average her pain was a “4/10,” and a “6/10” on her worst days. Tr. 1155-56. More
recent records from 2019 and 2020 show that medication also improved Plaintiff’s pain
symptoms and further undermined her extreme claims. In contrast to Plaintiff’s hearing
testimony that her lower back pain felt like somebody was hitting her spine with a
sledgehammer, records show Plaintiff’s symptoms were tolerable and her “[b]ack pain [was]
doing well” on her medication. Tr. 916, 956, 962; see also Tr. 458 (May 2018 showing that
Plaintiff’s only complaint was an acute strain after “lifting a week ago,” that had temporarily

caused occasional radiating pain that was improving); 1307 (stating with respect to Plaintiff’s
foot pain that “[p]ain meds are working and well controlled”); 1373 (“The current medical
regimen is effective; continue present plan and medications”).
The ALJ also reasonably discounted Plaintiff’s reports of mental health symptoms
because they improved with treatment as well. The ALJ cited Plaintiff’s therapy sessions, which
reduced Plaintiff’s anxiety and increased her energy; she was better able to get out; and she was
less avoidant of situations. See, e.g., Tr. 469, 488, 708, 770. In August 2017, she reported having
some increased anxiety around an anniversary but was otherwise “doing well.” Tr. 771. Even
when she had one “triggering event” in 2018, she reported this “did not increase any avoidant

behavior” and she was able to return “with no issues.” Tr. 476. In April 2019, she reported doing
well on Percocet and she had no issues with depression. Tr. 847-48. Therapy notes from June
2020 state that “[o]verall [Plaintiff] reports that she is doing well . . . .” Tr. 949. This evidence
showing that Plaintiff’s mental health symptoms improved undercut her claims of debilitating
mental limitations.
C. Daily Activities
The ALJ also reasonably discounted Plaintiff’s subjective symptom testimony about her
mental and physical limitations because it was inconsistent with her reported daily activities. Tr.
21-22, 26. Activities of daily living can form the basis for an ALJ to discount a claimant’s
testimony in two ways: (1) as evidence a claimant can work if the activities “meet the threshold
for transferable work skills”; or (2) where the activities “contradict [a claimant’s] testimony.”
Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
At the hearing, Plaintiff testified to significant back pain, depression, anxiety, and PTSD,
Tr. 51-52, which the ALJ reasonably concluded conflicted with her other testimony about

activities of daily living. Even when they do not show transferable work skills, daily activities
“may be grounds for discrediting the claimant’s testimony to the extent that they contradict
claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir.
2012). Here, the ALJ contrasted Plaintiff’s reports of debilitating pain and mental health
symptoms with evidence showing that Plaintiff joined a lodge, entered billiard tournaments, and
played cards and bingo. Tr. 454, 477, 751-52, 761. She went on vacations and camping trips, Tr.
59, 456, 458, 472, 517, 756, and was even looking forward to rafting a river with her friend, Tr.
454. And she was able to drive to the post office and to go shopping. Tr. 273.
The ALJ reasonably found that these activities, while limited, undermined Plaintiff’s

allegations of disability and supported the ALJ’s decision to discount her allegations. Evidence
that Plaintiff could go camping, travel, and drive was at odds with her claim that even on a good
day, she could sit for only ten minutes and most days could sit for only three to five minutes, Tr.
50, 270, or that her pain was so severe that it was “really hard to actually focus . . . on pretty
much anything,” Tr. 57. These activities also weakened Plaintiff’s testimony that she left her
home “maybe three to five times a week” simply to check mail and go shopping, Tr. 56, or that
her depression would prevent her from interacting with people in a workspace, Tr. 60. The ALJ
also reasonably cited Plaintiff’s relatively normal presentation at the hearing undermined her
claims that her conditions prevented her from concentrating or staying on task, even when
talking. Tr. 57.
In sum, the ALJ offered three clear and convincing reasons for discounting the severity of
Plaintiff’s symptom testimony regarding her mental and physical limitations. Although Plaintiff
offers an alternative interpretation of her activities, the Court must uphold the ALJ’s findings if

inferences reasonably drawn from the record support them, even if evidence may be susceptible
to more than one rational interpretation. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,
1193 (9th Cir. 2004). That is the case here.
II. Medical Opinion Evidence
Plaintiff argues the ALJ failed to provide legally sufficient reasons for finding the
opinion of Plaintiff’s treating therapist, Hollie Lolhmann, unpersuasive. For claims filed on or
after March 27, 2017, ALJs are no longer required to give deference to any medical opinion,
including treating source opinions. Rules Regarding the Evaluation of Medical Evidence, 2017
WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. Instead,

the agency considers several factors. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). These are:
supportability, consistency, relationship to the claimant, specialization, and “other factors.” 20
C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The “most important” factors in the
evaluation process are supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2),
416.920c(b)(2).
Under this framework, the ALJ must “articulate . . . how persuasive [they] find all of the
medical opinions” from each doctor or other source. 20 C.F.R. §§ 404.1520c(b), 416.920c(b)(2).
In doing so, the ALJ is required to explain how supportability and consistency were considered
and may explain how the other factors were considered. 20 C.F.R §§ 404.1520c(b)(2),
416.920c(b)(2). When two or more medical opinions or prior administrative findings “about the
same issue are both equally well-supported . . . and consistent with the record . . . but are not
exactly the same,” the ALJ is required to explain how the other factors were considered. 20
C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). “Even under the new regulations, an ALJ cannot
reject an examining or treating doctor’s opinion as unsupported or inconsistent without providing
an explanation supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th
Cir. 2022).
Plaintiff’s treating therapist, Hollie Lolhmann, LCSW, completed a statement on May 7,
2019, in which she opined Plaintiff would have category III limitations in her ability to maintain
attention and concentration for extended periods, complete a normal work day or work week
without interruptions from psychologically-based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods, accept instructions and respond
appropriately to criticism from supervisors, and travel in unfamiliar places or use public
transportation. Tr. 807-09. Ms. Lolhmann opined Plaintiff was likely to be absent from work
about two days each month as a result of having her mental health symptoms triggered by
environmental cues reminding her of past traumatic events. For the same reasons, Ms. Lolhmann
opined Plaintiff would likely be off task for about ten percent of the typical work day. Tr. 810.
The VE testified that time off task or absences consistent with Ms. Lolhmann’s opinion would
preclude competitive employment. Tr. 70.
The ALJ found LCSW Lolhmann’s opinion was unpersuasive as follows:
Although her opinion is supported by a treating relationship with the claimant that
ordinarily suggests a familiarity with the claimant and her impairments and
symptoms, her assessment does not explain any basis for her findings. More
importantly, such severe mental limitations are inconsistent with her own treatment
notes describing the claimant’s adequate mental functioning.

13 — OPINION & ORDER

Tr. 27.
The ALJ sufficiently considered the supportability of Ms. Lolhmann’s opinion. The
supportability factor looks to the relevant objective medical evidence—that is, clinical signs and
diagnostic findings, see 20 C.F.R. §§ 404.1502(c), (f), (g)—and the supporting explanations a
medical source provides for their opinions. 20 C.F.R. § 404.1520c(c)(1). “An ALJ is not required

to take medical opinions at face value, but may take into account the quality of the explanation”
when evaluating a medical opinion. Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020). The ALJ
explained that Ms. Lolhmann’s opinion “does not explain any basis for her findings” and “more
importantly,” the severe limitations she assessed were “inconsistent with her own treatment
notes.” Tr. 27. For example, Ms. Lolhmann offered no explanation or foundation for the opinion
that for twenty percent of a workday, Plaintiff would be unable to maintain attention and
concentration for two-hour segments. Tr. 808. The opinions about “Category III” limitations
precluding productivity in areas such as accepting instructions and responding appropriately to
criticism from supervisors likewise lacked explanation. Tr. 808-09. Nor did Ms. Lolhmann

record any objective findings to support concentration deficits, let alone disabling ones. Tr. 808-
09. Ms. Lolhmann’s treatment records from 2019 contain no objective findings, or even a mental
status examination that would substantiate Plaintiff’s mental state. See Tr. 690-92. When Ms.
Lolhmann did perform a mental status examination in April 2018, her findings were
unremarkable: despite Plaintiff’s self-report of being depressed, Ms. Lolhmann found Plaintiff
had normal emotional state and affect along with normal behavior, speech, thought process and
content, intellectual functioning, memory and cognition, and insight. Tr. 468.
The ALJ also reasonably considered that Ms. Lolhmann’s opinions were inconsistent
with other record evidence when finding them unpersuasive. An opinion’s persuasiveness is in
relation to its consistency with evidence from other sources. 20 C.F.R. §§ 404.1520c(c)(2),
416.920c(c)(2); Woods, 32 F.4th at 792. Specifically, the ALJ cited records from providers like
Dr. Michael Allen and Bridget Knight, NP, who assessed Plaintiff’s mental status and recorded
benign findings at odds with the psychological deficits Ms. Lolhmann assessed. Tr. 27. These
records showed Plaintiff had adequate mental function, including normal mood, affect,

judgment, and thought content; she had no concentration deficits; and she demonstrated normal
behavior. See, e.g., Tr. 516, 902.
Plaintiff argues that, to the contrary, the record evidence supports Ms. Lolhmann’s
opinion more robustly than the ALJ gave it credit for. Pl. Reply 2-3. Plaintiff specifically cites
Ms. Lolhmann’s treating relationship as support for this conclusion. Id. at 2.3 Under the revised
regulations, however, ALJs “will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative medical findings(s).” 20
C.F.R. §§ 404.1520c, 416.920c; see also Farlow v. Kijakazi, 53 F.4th 485, 488-89 (9th Cir.
2022). And ultimately, Plaintiff’s arguments are an effort to have this Court re-weigh the

evidence, which this Court may not do. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021)
(noting “[w]e may not reweigh the evidence or substitute our judgment for that of the ALJ”).
Because the ALJ reasonably considered the supportability and consistency of Ms. Lolhmann’s
opinions, and the ALJ’s conclusion was supported by substantial evidence, the Court will not
disturb the ALJ’s finding that Ms. Lolhmann’s opinion was unpersuasive.

3 Plaintiff also argues it was error to craft an RFC while simultaneously finding all the medical
opinions about Plaintiff’s mental health unpersuasive. Pl. Reply 2-3. The Ninth Circuit has held
otherwise. See Farlow, 53 F.4th at 488-89 (finding ALJ did not err in discounting the only
medical opinion of record, explaining that there is a presumption that “ALJs are, at some level,
capable of independently reviewing forming conclusions about medical evidence to discharge
their statutory duty to determine whether a claimant is disabled and cannot work”).
III. Lay Witness Testimony
“Lay testimony as to a claimant’s symptoms is competent evidence that the Secretary
must take into account.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citation
omitted); 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1) (“In evaluating the intensity and
persistence of your symptoms, we consider all of the available evidence from your medical

sources and nonmedical sources about how your symptoms affect you.”). Under the 2017
regulations, the ALJ is not “required to articulate how [they] considered evidence from
nonmedical sources” using the same criteria required for the evaluation of medical sources. 20
C.F.R. §§ 404.1520c(d), 416.920c(d). Under the new regulations, however, the ALJ must still
articulate their assessment of lay witness statements. Tanya L.L. v. Comm’r Soc. Sec., 526
F.Supp.3d 858, 869 (D. Or. 2021).
The ALJ must give reasons “germane to the witness” when discounting the testimony of
lay witnesses. Valentine, 574 F.3d at 694. But the ALJ is not required “to discuss every witness’s
testimony on an individualized, witness-by-witness basis.” Molina, 674 F.3d at 1114, superseded

on other grounds by 20 C.F.R. § 404.1502(a). If the ALJ gives valid germane reasons for
rejecting testimony from one witness, the ALJ may refer only to those reasons when rejecting
similar testimony by a different witness. Id. Additionally, where “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,”
any error by the ALJ in failing to discuss the lay testimony is harmless. Id. at 1117, 1122.
Here, although the ALJ did not sufficiently analyze the lay witness testimony, any error
in failing to do so was harmless. Here, Plaintiff’s parents described symptoms that mirrored
Plaintiff’s own allegations. See Tr. 262-69, 322-29. As discussed above, the ALJ provided
legally sufficient reasons for concluding that Plaintiff’s testimony was unpersuasive. These
reasons apply equally well to the lay witness testimony. Any error in rejecting the lay witness
testimony was therefore harmless. Molina, 674 F.3d at 1117.
IV. Step Five Analysis
Finally, Plaintiff argues that the ALJ erred by omitting the full extent of Plaintiff’s

subjective symptom testimony, lay witness testimony, and the Ms. Lolhmann’s opinions from his
hypotheticals posed to the vocational expert. Where a plaintiff’s step five assignment of error
merely re-states her mistaken argument that the ALJ’s RFC finding did not account for all her
limitations, there is no basis to remand. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-
76 (9th Cir. 2008). Because the Court finds the ALJ did not err in his decisions to discount lay
testimony, Plaintiff’s symptom testimony, or in finding Ms. Lolhmann’s opinion unpersuasive, it
rejects Plaintiff’s step five argument as well.
CONCLUSION
Based on the foregoing, the Commissioner’s decision is AFFIRMED.

IT IS SO ORDERED.
DATED:____J_u_ly_ _2_4_, _2_0_2_3_________.

__________________________________
MARCO A. HERNÁNDEZ
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396223. Public record. Not legal advice.