Johnson v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RACHEL J.,1 No. 6:22-cv-00158-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

Katherine L. Eitenmiller

Katie Taylor

WELLS, MANNING, EITENMILLER & TAYLOR, P.C.

474 Willamette Street

Eugene, Oregon 97401

Attorneys for Plaintiff

Kevin Danielson

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.

Justin L. Martin

Social Security Administration

Office of the General Counsel

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Rachel J. brings this action seeking judicial review of the Commissioner’s final

decision to deny disability insurance benefits (“DIB”). This Court has jurisdiction pursuant to 42

U.S.C. § 405(g). The Court affirms the Commissioner’s decision.

PROCEDURAL BACKGROUND

Plaintiff applied for DIB on May 28, 2018, alleging an onset date of April 30, 2015. Tr.

64, 73.2 Plaintiff’s date last insured (“DLI”) is December 31, 2016. Tr. 64, 74. Her application

was denied initially and on reconsideration. Tr. 72, 86. Plaintiff had previously filed a disability

claim, which was denied at the initial level in June 2016. Tr. 189.

On January 13, 2021, Plaintiff appeared with counsel for a hearing before an

Administrative Law Judge (“ALJ”). Tr. 35. On February 25, 2021, the ALJ found Plaintiff not

disabled. Tr. 27. The Appeals Council denied review. Tr. 1.

FACTUAL BACKGROUND

Plaintiff alleges disability based on “cervical dystonia, essential tremors, cognitive loss,

major depressive disorder, agoraphobia, panic disorder/anxiety, bi-polar, insomnia, chronic

fatigue, [and] Epstein Barr.” Tr. 192. At the time of her alleged onset date, she was 35 years old.

2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative

record, filed herein as Docket No. 10.

Tr. 64. She has a high school education and past relevant work experience as a “Caregiver,

Home Attendant.” Tr. 26.

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. 18. Next, at steps two and

three, the ALJ determined that Plaintiff has the following severe impairments: “affective

disorder; anxiety disorder; and substance abuse disorder.” Tr. 18. However, the ALJ determined

that Plaintiff’s impairments did not meet or medically equal the severity of a listed impairment.

Tr. 18. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to

perform “a full range of work at all exertional levels” with the following limitations:

[T]he claimant can perform only simple, routine, repetitive tasks with DOT GED

reasoning level of 2 or less. The claimant can have no public interaction and

occasional interaction with supervisors and co-workers. The claimant requires a

static work environment with few changes in work routines and settings. The work

environment should not expose the claimant to hazards.

Tr. 20. Because of these limitations, the ALJ concluded that Plaintiff could not perform her past

relevant work. Tr. 26. 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 “Machine Packager,”

“Laundry Worker,” and “Hand Packager.” Tr. 25. Thus, the ALJ concluded that Plaintiff is not

disabled. Tr. 27.

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 in (1) evaluating the medical opinion evidence, (2)

improperly rejecting Plaintiff’s subjective symptom testimony, and (3) improperly rejecting lay

testimony by Plaintiff’s spouse and mother. Pl. Br., ECF 13. The Court disagrees.

I. Medical Opinion Evidence

Plaintiff argues that the ALJ erred in rejecting the opinions of Drs. Kessler, Succar, Choi,

and Guggenheim. Specifically, Plaintiff challenges the ALJ’s findings that (1) Dr. Kessler’s

opinion was only “partially persuasive,” Tr. 22, and (2) Drs. Succar, Choi, and Guggenheim’s

opinions were “not persuasive,” Tr. 24. 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).

A. Dr. Kessler

Plaintiff argues that the ALJ erred in finding Dr. Kessler’s opinion “partially persuasive.”

Pl. Br. 7 (quoting Tr. 22). Dr. Kessler reviewed Plaintiff’s psychological record on June 16,

2016, for the state agency as part of Plaintiff’s previous claim for disability benefits. Tr. 95. Dr.

Kessler found that Plaintiff suffered from an affective disorder, anxiety disorder, and substance

addiction disorder. Tr. 95. First, Dr. Kessler opined that Plaintiff’s ability to understand and

remember detailed instructions was “moderately limited” because she could “understand

complex instructions” but “only recall at a span of two-step commands.” Tr. 97. Second, in

evaluating Plaintiff’s sustained concentration and persistence capacities, Dr. Kessler noted she

was “likely able to understand, remember, and carry out more detailed instruction, but more

complex tasks are also likely to cause an increase in anxiety stressors, so she should be limited to

simple, repetitive work.” Tr. 97.

The ALJ found Dr. Kessler’s opinion partially persuasive. First, the ALJ accepted Dr.

Kessler’s opinion limiting Plaintiff to “simple, repetitive tasks,” finding the record supported it.

Tr. 22. However, the ALJ rejected Dr. Kessler’s opinion limiting Plaintiff to two-step commands

because (1) it was not supported by the record and (2) it was “somewhat confusing.” Tr. 22.

Specifically, the ALJ found Dr. Kessler’s opinion that Plaintiff “can only recall at a span of two-

step commands” inconsistent with Dr. Kessler’s opinion that Plaintiff “is likely able to

understand, remember, and carry out more detailed instruction.” Tr. 22 (quoting Tr. 97). The

ALJ found the two parts of the opinion “disjointed.” Tr. 22. He therefore discounted the first

limitation in light of both the medical record and the inconsistency between Dr. Kessler’s

findings. The ALJ concluded that so long as Plaintiff avoided more complicated tasks that would

aggravate her anxiety symptoms—in turn adversely affecting her work habits—she “could still

perform ‘simple, repetitive work’ with her moderate limitation in maintaining concentration,

persistence or pace.” Tr. 22–23 (quoting Tr. 97).

Plaintiff argues the ALJ erred in discounting Dr. Kessler’s testimony by (1)

“conflat[ing]” the two comments by Dr. Kessler and (2) failing to reconcile an apparent conflict

between a limitation to two-step commands and the requirements of Reasoning Level Two. Pl.

Br. 7–8. Plaintiff argues that Dr. Kessler’s two comments are not “disjointed,” as the ALJ found,

but rather supplementary. Id. The limitation to two-step commands, Plaintiff argues, functions as

an “additional limitation,” one that builds on rather than contradicts Dr. Kessler’s finding on

Plaintiff’s limited concentration and persistence. Id. at 8. Specifically, Plaintiff argues that Dr.

Kessler’s two limitations have different bases. Whereas Dr. Kessler limited Plaintiff to “simple,

repetitive work” because of her difficulties in concentration and persistence, the second

limitation—to “two-step commands”—was “based on [her] limited recall.” Id. at 7.

Even if Plaintiff were correct in demonstrating an error in the ALJ’s reasons for finding

Dr. Kessler’s opinion inconsistent, Plaintiff does not address the ALJ’s second reason for

discounting Dr. Kessler’s opinion: supportability. The ALJ found that Plaintiff “consistently had

normal memory during her examinations” while noting that Plaintiff “told her provider that she

was experiencing short-term memory loss.” Tr. 18. During the relevant period, there were eight

medical reports. Dr. Kessler’s opinion included the first six. Of those six mental status

examinations, three listed memory as intact for content of interview, Tr. 1122, 1125, 1128, and

three listed short-term memory impaired by self-report, Tr. 1131, 1134, 1138. However, the ALJ

(as discussed further below) rejected Plaintiff’s subjective symptom testimony. Tr. 21. Of the six

reports, two listed memory loss under reasons for visit. Tr. 1133, 1136. But other than in self-

report, memory difficulties did not appear in any of Dr. Kessler’s notes throughout the six

reports.3 Even at the one visit Plaintiff presented as anxious, distracted, sad, and with racing

thoughts, these conditions did not affect her memory as indicated by the mental status report. Tr.

1121–22. Rather the mental status report still listed Plaintiff’s memory as “intact for content of

3 Memory difficulties are listed in the last two reports, but both of those reports are from

appointments after Dr. Kessler provided his June 16, 2016 opinion. See Tr. 1140, 1143.

interview.” Tr. 1122. In sum, nothing in the record from the period relevant to Dr. Kessler’s

opinion indicated that Plaintiff could only recall at a span of two-steps. To the contrary, the

record indicates that despite self-reported memory problems, Plaintiff’s memory remained intact

with normal functioning.

The Court concludes that the ALJ did not err in finding that the medical record did not

support Dr. Kessler’s limitation of Plaintiff to performing tasks with “two-step commands.”

Because the Court finds this part of Dr. Kessler’s opinion was not supported by the record and

therefore the ALJ did not err in finding Dr. Kessler’s opinion partially persuasive, the Court does

not address Plaintiff’s second argument that the ALJ failed to reconcile an “apparent conflict” in

Dr. Kessler’s opinion. In conclusion, the ALJ did not err in his analysis of Dr. Kessler’s medical

opinion.

B. Drs. Succar, Choi, and Guggenheim

Plaintiff argues that the ALJ erred in finding Drs. Succar, Choi, and Guggenheim’s

opinions “not persuasive.” Pl. Br. 12–13 (quoting Tr. 24). Dr. Succar saw Plaintiff twice, in

September 2019 and sometime between September 2019 and March 2020. In his March 2020

treating source statement, he diagnosed Plaintiff with tremors, chronic fatigue, dystopia,

depression with anxiety, postural orthostatic tachycardia syndrome, and mast cell activation

syndrome. Tr. 602. Dr. Succar identified the relevant signs—including clinical findings and test

results—as “tremor and dystonia on physical exam, clinically followed by psychiatry as well”

and “orthostatic tachycardia.” Tr. 603. According to Dr. Succar, these conditions caused

significant functional limitations in Plaintiff’s ability to work a regular work schedule, including

difficulty lifting; doing repetitive reaching, handling, or fingering; and sitting, standing, and

walking. Tr. 603–06. Finally, Dr. Succar opined that Plaintiff’s symptoms “started in 2015” and

that her limitations were present prior to Plaintiff’s DLI of December 31, 2016. Tr. 606.

Dr. Guggenheim began treating Plaintiff in July 2019 and saw her every three months.

Tr. 1335. In her December 2020 treating source statement, Dr. Guggenheim diagnosed Plaintiff

with hypermobile spectrum disorder, dysautonomia, postural orthostatic tachycardia syndrome,

and mast cell activation syndrome. Tr. 1335. Symptoms included cognitive dysfunction,

generalized weakness, fatigue, tremors (head and body), anxiety, depression, rashes, chemical

sensitivity, abdominal pain, and hives. Tr. 1336. According to Dr. Guggenheim, Plaintiff’s

symptoms were “very consistent” with the above diagnoses, and laboratory results further

corroborated them. Tr. 1336. Dr. Guggenheim concluded that these conditions would

substantially restrict Plaintiff’s ability to perform and maintain a regular work schedule and

would cause significant functional limitations. Tr. 1336–39. However, Dr. Guggenheim opined

that Plaintiff’s limitations were not present prior to December 31, 2016. Tr. 1339. Even though

she found severe anxiety began in 2015 and fatigue and cognitive dysfunction in early 2016, Dr.

Guggenheim concluded, “it is unclear if symptom severity at that time prevented work.” Tr.

1339.

Dr. Choi started treating Plaintiff in July 2018 and saw her regularly every six to eight

weeks. Tr. 607. In his August 2020 medical source statement, he diagnosed Plaintiff with major

depression and panic disorder with agoraphobia. Tr. 608. Symptoms included severe anxiety,

fatigue, exhaustion, depression, and severe tremor of the head (which may have been a side

effect of previous medication). Tr. 608. Dr. Choi opined that Plaintiff was “severely limited” in

her ability to function in a work setting. Tr. 608. Specifically, he found Plaintiff had marked

difficulty with understanding, remembering, and carrying out complex instructions; marked

difficulties interacting with the public and co-workers, and difficulty maintaining attention and

concentration for extended periods. Tr. 611–13.4 Dr. Choi cited severe anxiety and mental

fatigue to support these limitations. Tr. 613. He noted that “fatigue ha[d] been a consistent

finding the past 20 years.” Tr. 612. When prompted by the questionnaire, Dr. Choi opined that

Plaintiff’s limitations began in 2016, Tr. 612, and were thus present prior to the DLI, Tr. 614. He

supported this finding by noting that Plaintiff “was seeing another M.D. psychiatrist in . . . 2016

and records indicate severe symptoms then as well.” Tr. 614.

The ALJ rejected the three doctors’ medical opinions for three reasons: (1) they were

“not supported by the evidence;” (2) they were “not consistent” with the medical record; and (3)

each of the three doctors did not begin treating Plaintiff until years after the DLI, and none of

them “offer[ed] an explanation as to what they based their opinion on . . . .” Tr. 24. The ALJ

suggested that Dr. Succar’s two visits with Plaintiff were insufficient to support his opinion that

Plaintiff’s limitations had started in 2015. Tr. 24. The ALJ highlighted Dr. Guggenheim’s

conclusion that it was “unclear if symptom severity prevented work” during the relevant period.

Tr. 24 (quoting Tr. 1339). The Commissioner further points out that Dr. Guggenheim stated, by

checking a box, that Plaintiff’s symptoms had not been present prior to December 31, 2016. Def.

Br. 9 (quoting Tr. 1339).

The ALJ did not err in rejecting the three doctors’ medical opinions. One of the

overriding contentions of the ALJ was that that none of three doctors “described any medically

reasonable tactic they used to arrive at these conclusions, such as reviewing the records” before

the DLI. Tr. 24. This statement is accurate for Drs. Succar and Guggenheim’s opinions. Neither

4 The parties do not dispute Plaintiff’s limitations in interacting with the public and co-workers.

The ALJ incorporated these limitations in determining Plaintiff’s RFC, noting that Plaintiff could

“have no public interaction and occasional interaction with supervisors and co-workers.” Tr. 20.

doctor directly referenced the medical record during the relevant period to support their opinions.

See Tr. 602–06, 1335–39. Dr. Succar opined that Plaintiff’s limitations “started in 2015,” and he

checked a box indicating that those limitations had been present prior to Plaintiff’s DLI of

December 31, 2016. Tr. 606. However, Dr. Succar neither elaborated on those findings nor

indicated how he arrived at them. At no point did he cite to, reference, or allude to the medical

record during the relevant period. Although Dr. Guggenheim did allude to the medical record

during the relevant period, she concluded that Plaintiff’s limitations were not present prior to the

DLI and that “it [was] unclear” whether the severity of Plaintiff’s symptoms would have

prevented her from working during the relevant period. Tr. 1339. In contrast, the ALJ’s

statement is inaccurate for Dr. Choi. Dr. Choi did directly reference Plaintiff’s medical record

during the relevant period, noting that Plaintiff’s fatigue had been “a consistent finding the past

20 years,” Tr. 612, and that Plaintiff “was seeing another M.D. psychiatrist . . . . and records

indicate symptoms [in 2016] as well,” Tr. 614. Although the ALJ erred with respect to Dr.

Choi’s opinion, the Court finds this error to be harmless because of the ALJ’s second reason for

rejecting the three doctors’ medical opinions: inconsistency with the medical record.

To demonstrate these inconsistencies, the ALJ catalogued records from December 5,

2012, to April 21, 2017. He concluded that, contrary to the doctors’ opinions, the records

generally indicated that Plaintiff had “intact cognition, adequate fund of knowledge, logical

thought processes, normal thought content, intact associations, normal memory, normal

concentration, orientation, and alertness.” Tr. 24. The ALJ further found in the records during the

same period that Plaintiff had “cooperative mood and pleasant behavior, appropriate mood,

euthymic affect, good eye contact, and normal speech.” Tr. 24. Finally, contrary to the three

doctors’ opinions, the ALJ noted that the records indicated Plaintiff had “normal insight and

judgment, adequate and neat grooming and hygiene, lack of paranoia, and absence of

hallucinations.” Tr. 24.

The Court finds that the ALJ’s findings are supported by substantial evidence. Of the

eight medical reports from the relevant period, five describe Plaintiff’s thought process as normal

and logical, attention and concentration as able to focus, fund of knowledge as intact and

appropriate to age and level of education, insight as intact, and judgment as adequate to the

circumstances. Tr. 1125, 1128, 1131, 1134, 1138. One report listed Plaintiff’s behavior, affect,

thought process, and thought content as normal; insight and judgment as fair; and cognition as

grossly intact. Tr. 1141–42. The last report listed Plaintiff’s thought process, associations, and

attention as intact, insight as fair, judgment as good, and memory as oriented to person, place,

time, and situation. Tr. 1145. This leaves only one visit—that of May 8, 2015, shortly after

Plaintiff was fired from her job—that listed thought process as racing, attention span and

concentration as distracted. Tr. 1122. In the seven other reports, memory was listed as intact for

content of interview, Tr. 1122, 1125, 1128, short-term memory impaired by self-report, Tr. 1131,

1134, 1138, one not listed, Tr. 1141–42, and “oriented 4x,” that is, oriented as to person, place,

time, and situation, Tr. 1145. Plaintiff’s mood fluctuated between anxious, Tr. 1122, to

euthymic, Tr. 1125, 1128, back to anxious, Tr. 1131, 1134, 1138, 1141, to finally depressed and

anxious, Tr. 1145. Despite these fluctuations in mood and some adjustments in medication, as

the Court noted in reviewing Dr. Kessler’s opinion, the record indicates that Plaintiff continued

to show relatively normal mental functioning as indicated by mental status reports and the

treating doctor’s comments. Finally, during Plaintiff’s psychiatric evaluation in October 2016—

despite self-reporting anxiety, depression, problems in focusing, and memory difficulties—the

mini-mental state exam reported a score of 29/30.5 Tr. 1143. The examining provider told

Plaintiff her “subjective memory difficulties might have to do with her decreased mood,” Tr.

1143, and the mental status report listed thought process, associations, and attention as intact;

memory as oriented to person, place, time, and situation; insight as fair; and judgment as good,

Tr. 1145.

In conclusion, the medical record indicates that Plaintiff’s symptoms during the relevant

period were not so severe as to limit Plaintiff to the extent Drs. Succar, Choi, and Guggenheim

opined. Specifically, Dr. Choi’s opinion that Plaintiff was “severely limited” because of her

marked difficulty with understanding, remembering, and carrying out complex instructions as

well as difficulty maintaining attention and concentration for extended periods is contradicted by

the medical record that—aside from situational stressors—consistently indicates normal

memory, ability to focus, and logical thought process. The ALJ therefore did not err in

discounting their opinions. Rather, the ALJ provided an explanation supported by substantial

evidence for doing so. See Anderson v. Saul, 818 F. App'x 709, 711 (9th Cir. 2020) (ALJ was

“justified” in rejecting opinion of doctor who assessed Plaintiff after the DLI because the

“retroactive opinion was contradicted by . . . the objective medical record.”). In conclusion, the

ALJ did not err in his analysis of the medical opinions of Drs. Succar, Choi, and Guggenheim.

///

5 The mini-mental state examination is a tool for assessing mental status that focuses on testing

memory. George Newman, How to Assess Mental Status, Merck Manual (Sept. 2022),

https://www.merckmanuals.com/professional/neurologic-disorders/neurologic-examination/how-

to-assess-mental-status#v1030587; see also Gregory v. Berryhill, No. 6:17-CV-00167-PK, 2018

WL 1997801, at *11 (D. Or. Mar. 12, 2018), report and recommendation adopted, No. 6:17-CV-

00167-PK, 2018 WL 1997753 (D. Or. Apr. 26, 2018) (upholding ALJ’s decision in part because

“near perfect score on the MMSE” was “sufficiently clear and convincing basis” for discounting

consulting physician’s opinion).

II. Subjective Symptom Testimony

Plaintiff argues the ALJ erred in rejecting her 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.”).

In her October 2018 Function Report, Plaintiff reported suffering from “extreme anxiety

and depression.” Tr. 205. She indicated that she spent most days in bed crying and having

negative thoughts. Tr. 205. She complained that her memory was “awful,” that her head shook

“uncontrollably,” and that she could not communicate with people. Tr. 205. Plaintiff relied

extensively on her husband: “[m]y husband does everything,” including paying bills, doing

house and yard work, cooking, and transporting children. Tr. 206. Plaintiff reported that her three

children—aged eighteen, sixteen, and ten—“take care of themselves” and “take care of [her].”

Tr. 206. She reported “never feel[ing] rested” and not “trust[ing] [her] body and mind.” Tr. 206,

208. She described avoiding social activities but could still “go[] to church regularly.” Tr. 210,

209. She reported that her attention was limited to “two seconds.” Tr. 210. In a follow up

questionnaire, Plaintiff reported her “extreme fatigue” began in “Oct-Nov 2016.” Tr. 230.

At the hearing, Plaintiff testified that during the relevant period she could not have

worked full time because of her fatigue, depression, anxiety around people, and difficulties

concentrating. Tr. 54–55. She testified that during the relevant period she was “[v]ery, very

fatigued. Off and on every day.” Tr. 51. She specified that during the relevant period her tremors

were constant, lasting “[a]ll day long.” Tr. 48. She further testified that her panic attacks lasted

“about an hour” and occurred “a couple times a week” starting in February 2013 and continuing

through April 2015. Tr. 45. According to her testimony, during the relevant period she would

forget meals, words, appointments, and where she had put things. Tr. 51. She further testified

that she suffered from racing thoughts “all the time pretty much.” Tr. 54. Finally, she stated that

her mental health had not improved since the relevant period and that, to the contrary, “it [was]

worse.” Tr. 54.

The ALJ rejected Plaintiff’s subjective symptom testimony for three reasons: (1) it was

inconsistent with the objective medical evidence, which shows that Plaintiff’s condition

improved and stabilized with treatment; and (2) Plaintiff’s daily reported activities undermined

her subjective testimony.

A. Inconsistency with the Medical Record and Improvement with Treatment

The ALJ is instructed to consider 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[.]”). Inconsistency between Plaintiff’s testimony and the objective medical

record is a valid reason to discount Plaintiff’s testimony. See Connett v. Barnhart, 340 F.3d 871,

874 (9th Cir. 2003) (affirming the ALJ’s credibility finding where the plaintiff’s testimony of

weight fluctuation was inconsistent with the medical record). The ALJ may also take into

account the effectiveness of any treatment. See Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir.

1995) (“Factors that the adjudicator may consider when making such credibility determinations

include the . . . effectiveness or adverse side effects of any pain medication.”). And under certain

circumstances, the ALJ can discount claimant testimony when that testimony is not supported by

the objective medical record. See Batson, 359 F.3d at 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) (The ALJ could

consider mild findings on MRIs and X-rays in discounting the plaintiff’s testimony as to her

back pain.). However, this may not be the ALJ’s sole reason for discounting a claimant’s

testimony: “the Commissioner may not discredit the claimant’s testimony as to the severity of

symptoms merely because they are unsupported by objective medical evidence.” Reddick, 157

F.3d at 722.

Although the ALJ found Plaintiff’s impairments could reasonably be expected to cause

her alleged symptoms, he rejected Plaintiff’s subjective symptom testimony as “not entirely

consistent” with the objective medical evidence. Tr. 21. First, the ALJ noted that the record

indicated that Plaintiff’s panic attacks had “resolved with Ativan.” Tr. 21. Second, the ALJ

highlighted that, despite Plaintiff’s self-reported problems with short term memory, there was

“only one instance of abnormal focus and concentration through the period at issue” and her

mental status examinations remained normal. Tr. 21. He further noted that, following situational

stressors, by July 2015 Plaintiff reported “doing better.” Tr. 21 (quoting Tr. 1363). Finally, the

ALJ found that the medical record indicated that by May 2016 Plaintiff reported improvements

in anxiety and that throughout 2016 her mental status examinations “remained relatively

normal.” Tr. 22.

The ALJ gave specific, clear, and convincing reasons for finding Plaintiff’s subjective

testimony inconsistent with the medical record. As noted above, of the eight medical records

during the relevant period only one reports Plaintiff’s thought process as racing, and her attention

span and concentration as distracted. Tr. 1122. Despite some fluctuation and changes in

medications, the record generally indicates Plaintiff’s mood and depression had improved by her

DLI after confronting situational stressors. Tr. 1123, 1124 (“doing better now”), 1127

(“depressed mood is generally continuing to be stable on her medication”), 1128 (“[c]oping with

parenting challenges well”), 1132 (“patient’s problem(s) is/are improved”), 1137 (“added

gabapentin is helping with her anxiety”), 1139 (Plaintiff “is improved since her last visit”; mood

and anxiety under “fair control”). When starting psychiatric treatment in June 2016, Plaintiff

reported, “takes two 90 minute naps . . . . fatigue and cognitive symptoms are getting worse.” Tr.

1140. But the mental status evaluation nonetheless showed behavior, speech, affect, thought

process, and thought content as “normal”; cognition as “grossly intact”; and insight and

judgment as “fair.” 1141–42. The subsequent psychiatric evaluation stated, “An MMSE [mini-

mental state examination] done today reveals a score of 29/30.” Tr. 1143. Indeed, Plaintiff’s

provider suggested that her “subjective memory difficulties might have to do with her decreased

mood.” Tr. 1143. Because these records are inconsistent with Plaintiff’s testimony in both her

Function Report and her testimony at the hearing that she struggles with memory, ability to

focus, anxiety, and extreme fatigue the ALJ did not err in rejecting Plaintiff’s subjective

symptom testimony.

B. Activities of Daily Living

Contradiction with a claimant’s activities of daily living is a clear and convincing reason

for rejecting a claimant’s testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).

There are two grounds for using daily activities to form the basis of an adverse credibility

determination: (1) when activities meet the threshold for transferable work skills and (2) when

activities contradict a claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.

2007). However, “disability claimants should not be penalized for attempting to lead normal

lives in the face of their limitations,” Reddick, 157 F.3d at 722, and “the mere fact that a plaintiff

has carried on with certain daily activities, such as grocery shopping . . . does not in any way

detract from his credibility,” Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (citing

Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). In order to impact a claimant’s

credibility, the activity has to be “inconsistent with claimant’s claimed limitations.” Reddick, 157

F.3d at 722. The ALJ cannot mischaracterize statements and documents in the record or take

these out of context in order to reach his conclusion on the claimant’s credibility. Id. at 722–23.

The ALJ cited Plaintiff’s reported daily activities in discounting her subjective symptom

testimony. These included playing games on her phone, doing laundry, doing dishes, and doing

personal care activities without reminders. Tr. 21. The ALJ also noted that Plaintiff talked with

her mother and a close friend daily, went to church on Sundays, and had never been fired due to

social or behavioral problems. Tr. 21.

The ALJ’s findings are not supported by substantial evidence. According to the

Plaintiff’s October 2018 Function Report, she had only been going to church “for the last two

months.” Tr. 209. The ALJ offered no explanation how this activity—started over two years after

the DLI—undermined Plaintiff’s testimony. Similarly, the ALJ takes many of Plaintiff’s

activities out of context. Plaintiff reported that she could do simple personal care tasks but often

needed to rest afterward. Tr. 207. According to her report, she prepared simple meals only twice

a month. Tr. 207. She further reported that she did one load a laundry a day, did ten minutes of

dishes, and vacuuming often took three hours with breaks. Tr. 208. She noted that she

communicated with her mother and best friend “just on the phone” and generally did not leave

her house. Tr. 209. Dr. Moner reported that during the relevant period Plaintiff played games on

her phone for ten minutes at a time twenty times a day. Tr. 93. With each of these activities, the

ALJ did not provide specific, clear, and convincing reasons why they undermine Plaintiff’s

subjective symptom testimony. However, because the ALJ did not err in rejecting Plaintiff’s

subjective symptom testimony as inconsistent with the medical record, the Court affirms the

ALJ’s decision to reject Plaintiff’s testimony.

III. Lay Witness Testimony

Plaintiff argues that the ALJ erred in rejecting lay witness testimony from her spouse and

her mother. In December 2018, Plaintiff’s spouse—Matthew—filled out a third-party Function

Report, stating that Plaintiff’s “emotional state and anxiety limit[ed] her ability to work.” Tr.

245. He reported Plaintiff had difficulties performing basic household activities and was limited

to occasionally preparing simple meals and doing one or two load(s) of laundry a day. Tr. 247.

He stated that when Plaintiff goes out in public, she “acts confused, cries unexpectedly.” Tr. 248.

According to Matthew, Plaintiff’s crying, lack of concentration, and inability to focus meant she

could not pay bills or handle a savings account. Tr. 248. He stated that Plaintiff did go to church

twice a month but, due to her anxiety, needed someone to accompany her and avoided activities

there. Tr. 249. Matthew reported Plaintiff was unable to finish what she started, could only pay

attention for ten minutes, and had difficulties following basic instructions such as a simple

recipe. Tr. 250.

In January 2020, Plaintiff’s mother—Pamela—filled out a third-party Function Report,

stating Plaintiff’s extreme fatigue, weakness, panic attacks, and other symptoms limited her

ability to work. Tr. 264. She reported that Plaintiff was “very dependent on others to help with

all aspects of household needs.” Tr. 264. She reported that Plaintiff no longer drove because past

panic attacks made it too dangerous. Tr. 264. Pamela noted that Plaintiff rarely visited her best

friend but did communicate through text messages and on the phone with her. Tr. 269. Pamela

further reported that Plaintiff came to her house approximately once a week and talked with her

on the phone or communicated through text messages daily. Tr. 269. According to Pamela,

Plaintiff could not finish what she started and had difficulty following instructions because she

could not concentrate and suffered from “brain fog.” Tr. 270. Pamela reported that Plaintiff cried

incessantly and that stress would cause her whole body to tremor. Tr. 271.

“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, the ALJ erred by failing to assess testimony by Plaintiff’s husband and mother.

Both Plaintiff’s husband and mother corroborated Plaintiff’s testimony as to her difficulty in

performing routine household activities, extreme fatigue, frequent crying, emotional fragility,

trouble making decisions, and lack of concentration. Where there are minor differences, both lay

witness testimonies describe less significant limitations than those described by Plaintiff, such as

her ability to leave the house and to carry on conversations with others. Compare Tr. 205 (“the

only time I leave the house pretty much is to go to the doctor’s”), with Tr. 269 (Pamela reports

Plaintiff comes to her house “once a week”) and Tr. 245 (Matthew reports he and Plaintiff take

short walks together); compare Tr. 51 (Plaintiff reported that extreme fatigue “really affects my

cognitive ability to have conversations”) and Tr. 210 (Plaintiff reports she “can’t have

conversation”), with Tr. 269 (Pamela reports Plaintiff daily spends time talking and texting with

others). Since Matthew’s and Pamela’s testimony do not describe any limitations not already

described by Plaintiff and the ALJ’s well-supported reason for rejecting Plaintiff’s subjective

testimony applies equally to Matthew and Pamela’s testimony, the ALJ’s error was harmless.

CONCLUSION

Based on the foregoing, the Commissioner’s decision is AFFIRMED.

IT IS SO ORDERED.

DATED:__S_e__p_te_m__b_e_r_ 6_,_ _2_0_2_3_____.

__________________________________

MARCO A. HERNÁNDEZ

United States District Judge