# Mikasi v. Commissioner Social Security Administration

> District Court, D. Oregon · October 26, 2023

URL: https://www.frixlaw.com/law-library/cases/10396608

## Case

- **Court:** District Court, D. Oregon
- **Decided:** October 26, 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/10396608

## How later opinions describe it (automated extraction)

- noting that the Court may not “reweigh the evidence [and] substitute [its] own judgment” for the ALJ’s
- 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

AYANI M.,1 No. 1:21-cv-1264-MO

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,

Defendant.

MOSMAN, District Judge:

This matter comes before me on Plaintiff Ayani M.’s Complaint [ECF 1] against
Defendant Commissioner of the Social Security Administration. For the reasons given below, I
AFFIRM the Commissioner’s decision and DISMISS this case.

1 In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the nongovernmental party in this case.
PROCEDURAL BACKGROUND
On February 26, 2019, Plaintiff applied for Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act and on January 5, 2021, applied for Disability Insurance
Benefits (“DIB”) under Title II. Tr. 73. The Social Security Administration (“SSA”) denied his

claim initially and upon reconsideration. Tr. 146-49, 155-57. Plaintiff appeared before
Administrative Law Judge (“ALJ”) Matthew Kawalek in January 2021. Tr. 92-115. On March 9,
2021, the ALJ issued a decision denying Plaintiff’s claims for benefits. Tr. 70-91. Plaintiff filed
an appeal, and the Appeals Council denied review. Tr. 1-7.
THE ALJ’S FINDINGS
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the alleged onset date of February 26, 2019. Tr. 75. At step two, the ALJ determined that
Plaintiff had the following severe impairments: insomnia, an affective disorder called either
adjustment disorder or reactive depression, an anxiety disorder called obsessive-compulsive
disorder (“OCD”) and generalized anxiety disorder, ASD, and unspecified neurodevelopmental

delay. Tr. 76. At step three, the ALJ found that Plaintiff’s impairments did not meet the severity
of one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. Tr. 76. The
ALJ assessed Plaintiff’s residual functional capacity (“RFC”), as follows:
a reduced range of light work as defined in 20 CFR 404.1567(b) and 416.967(b)
meaning the claimant can occasionally lift/carry 20 pounds and frequently
lift/carry 10 pounds. He can stand and/or walk 6 hours and sit 6 hours of an 8-
hour workday. The claimant can never climb ladders, ropes, or scaffolds. He can
tolerate no exposure to hazards, including unprotected heights or operating heavy
machinery. Mentally, he 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. He can sustain only ordinary routines and make no more than simple,
work-related decisions. He can tolerate no more than occasional interaction with
coworkers, supervisors, and the general public.
Tr. 78.
At step four, the ALJ determined that Plaintiff had no past relevant work. Tr. 84. At step
five, the ALJ found that Plaintiff retained the capacity to perform jobs that exist in significant
numbers in the national economy. Tr. 84. The ALJ therefore found Plaintiff not disabled from

the alleged onset date of February 26, 2019, through March 9, 2021, the date of the ALJ’s
unfavorable decision. Tr. 85.
LEGAL STANDARD
Courts must uphold the ALJ’s decision if it “was supported by substantial evidence and
based on proper legal standards.” Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
“Substantial evidence is “more than a mere scintilla,” and means only “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion. Biestek v. Berryhill, 139 S.
Ct. 1148, 1150 (2019) (internal quotation marks omitted). When “evidence is susceptible of more
than one rational interpretation ... the ALJ’s conclusion ... must be upheld.” Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005). Errors in the ALJ’s decision do not warrant reversal if they

are harmless. Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
DISCUSSION
Plaintiff raises three issues with the ALJ’s decision. First, he contends that the ALJ
unreasonably discounted his symptom testimony without clear and convincing reasons for doing
so. Second, Plaintiff argues that the ALJ erred in disregarding Nurse Practitioner Elisabeth Sturm
and Dr. Thomas Shields’ medical opinions. And third, Plaintiff argues the ALJ erred by
discounting his mother and grandmother’s lay witness statements. I address each issue in turn.
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 testified that past full-time work attempts were unsuccessful due to extreme
exhaustion, mental fatigue, and feeling physical ill. Tr. 102-03, 105-06, 108. Interacting with
“challenging customers” caused anxiety and made it difficult for him to think clearly. Tr. 109.
He lived on his own but stayed at his mother’s house a few nights a week. Tr. 104. His mother
paid his rent, assisted him with transportation, made phone calls on his behalf, and helped
advocate for him. Tr. 104. He was enrolled in college, where he received disability
accommodations, including extra time and quiet environments for testing and additional breaks

during class. Tr. 104. His classes were about two-and-a-half hours long, and he usually needed to
take a couple of ten-minute breaks per class because he had trouble focusing. Tr. 104-05.
Plaintiff testified that he sometimes forgets to take his medication or to go to appointments. Tr.
105. His mother and grandmother provide a lot of reminders and assistance. Tr. 105. He has
daytime fatigue despite getting a full night of sleep with medication. Tr. 106. He stated that he
feels stable some days, then other days experiences mood swings, anxiety, difficulty focusing,
and difficulty dealing with conflict. Tr. 107. He is socially awkward and has a hard time in large
crowds. Tr. 107. He is prone to stress and anxiety, and he testified to panic and difficulty
thinking clearly. Tr. 107.
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. 79.
However, the ALJ concluded that Plaintiff’s statements concerning the intensity, persistence and
limiting effects of his symptoms were not entirely consistent with the medical evidence and other
evidence in the record. Tr. 79. Specifically, the ALJ found Plaintiff’s symptom allegations were
inconsistent with the objective medical evidence and treatment history, activities of daily living,
including work and school, 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).
Concerning Plaintiff’s testimony about his anxiety, depression, difficulty adapting to
change, and fatigue, the ALJ reasonably discounted these allegations as inconsistent with the
record. Conflict with objective medical evidence is a sufficient basis for discounting a claimant’s
testimony. Smartt, 53 F.4th at 498; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). For example, the
ALJ noted that Plaintiff exhibited “normal attention and concentration, intact memory, average
to above average intelligence, a happy affect,” which conflicted with his testimony of fatigue,
anxiety and depression, Tr. 80 (citing Tr. 864-65, 904-905). Likewise, despite testifying that he
was unable to work because of fatigue, the ALJ noted that at medical appointments Plaintiff

displayed as “active and alert, oriented to time, place and person, and he had normal recent and
remote memory.” Tr. 81 (citing Tr. 674-75). Even at an appointment when Plaintiff complained
of sleep disturbance and fatigue, he was cooperative, calm, and had normal attention and
concentration, with intact memory, and a happy affect. Tr. 81 (citing Tr. 890). Taken together,
these countervailing symptom reports amount to substantial evidence supporting the ALJ’s
decision to discount Plaintiff’s testimony about anxiety, depression, and fatigue because it
conflicted with the record evidence.
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).
The ALJ reasonably concluded that Plaintiff’s fatigue and sleep-related symptoms
improved with treatment, which further undermined his hearing testimony. Although Plaintiff
complained that he was unable to work due to fatigue (Tr. 80-81, 103), he elsewhere reported
that his sleep improved with medication (Trazodone) and that he was not as tired and had a
“good energy level.” Tr. 80-81 (citing Tr. 675); see also Tr. Tr. 816 (reporting “sleeping well”
with Trazodone), 822 (reporting that medication “is working well” and that he was “[s]leeping

through the night 8-10 hrs.”). Furthermore, as noted above, even when Plaintiff complained of
sleep disturbance and fatigue, he remained cooperative, calm, pleasant with normal speech; he
had normal attention and concentration, intact orientation, intact memory, a happy affect, intact
thought processes, and unremarkable thought content. Tr. 81 (citing Tr. 890). This is another
clear and convincing reason, supported by substantial evidence to discount Plaintiff’s symptom
testimony.
C. Daily Activities
The ALJ also discounted Plaintiff’s subjective symptom testimony about his fatigue and
social anxiety because it was inconsistent with his reported daily activities. Tr. 81. 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). The relevant regulations require an ALJ to consider a claimant’s daily

activities when evaluating subjective symptom statements. 20 C.F.R. §§ 404.1529(c)(3)(i),
416.929(c)(3)(i). The Ninth Circuit has even found such routine activities as playing video
games, using public transportation, and preparing meals to undercut a claimant’s testimony of
disabling limitations. Ahearn v. Saul, 988 F.3d 1111, 1117 (9th Cir. 2021)
At the hearing, Plaintiff testified to anxiety and difficulty interacting with others (Tr. 103-
109), which the ALJ reasonably concluded conflicted with his other testimony about working
and attending school. 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, 674 F.3d at 1112-13. The ALJ reasonably contrasted
Plaintiff’s record at Southern Oregon University, where he graduated with good grades, and

completed significant community service, with his testimony of disabling symptoms at the
hearing. Tr. 77, 81 (citing Tr. 789, 808, 816, 822). Activities like being an “officer for the Yoga
and Meditation Club” and moving into a shared apartment clashed with Plaintiff’s testimony
about his difficulty being around many people. Tr. 81. The ALJ also reasonably cited Plaintiff’s
work “20-30 hours per week at Market of Choice as a bagger” (Tr. 810) and evidence that he
“work[ed] 40 hours per week in the summer and less during the school year” in 2018 (Tr. 679) as
inconsistent with Plaintiff’s testimony that he was unable to work full-time because of fatigue
and feeling ill from work. Tr. 103. The ALJ rationally found that these activities, while limited,
undermined Plaintiff’s allegations of disability and this is a further clear and convincing reason,
supported by substantial evidence, bolstering the ALJ’s decision to discount his allegations.
Plaintiff counters that the ALJ erred by cherry-picking scattered moments of “essentially
normal objective” medical findings from a record that otherwise shows “persistent anxiety, panic

attacks, OCD behaviors, depression, social impairment, insomnia, rigidness, and loneliness, as
well as some irritability, catastrophic thinking, and anger.” Pl. Br., ECF No. 14 at 19-20. “[I]t is
error for an ALJ to pick out a few isolated instances of improvement over a period of months or
years and to treat them as a basis for concluding a claimant is capable of working.” Garrison v.
Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Here, however, the ALJ reviewed the entire record
and came to the reasonable conclusion that Plaintiff’s improvement with treatment, daily
activities, and other objective medical evidence conflicted with the testimony about the severity
of his symptoms. Tr. 78. Plaintiff’s further arguments are an effort to have this Court re-weigh
the evidence, which is not the province of this Court’s review. Winans v. Bowen, 853 F.2d 643,
644 (9th Cir. 1987) (noting that the Court may not “reweigh the evidence [and] substitute [its]

own judgment” for the ALJ’s). Because the ALJ identified three clear and convincing reasons for
discounting Plaintiff’s subjective symptom testimony, and those reasons were supported by
substantial evidence, the Court will not disturb the ALJ’s conclusion that Plaintiff’s symptoms
were not as severe as alleged at the hearing.
II. Medical Opinion Evidence
New regulations about weighing medical opinion evidence apply to claims filed on or
after March 27, 2017. 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. Under the new
regulations, ALJs are no longer required to give deference to any medical opinion, including
treating source opinions. Id. 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. NP Sturm
In January 2020, Nurse Practitioner Elisabeth Sturm reported in a written statement that
she began treating Plaintiff in June 2017 and saw him two to three times per year. Tr. 842. She
reported that Plaintiff was diagnosed with Asperger’s syndrome, and that he has difficulty
maintaining jobs and connecting with others. Tr. 842-43. NP Sturm noted that Plaintiff presented
as less sociable and incapable of reading social cues on examination. Tr. 843. He was prescribed
Trazodone for insomnia. Tr. 844. NP Sturm opined that Plaintiff would be off-task 20% of a
typical workday due to difficulty concentrating and distractibility. Tr. 845. She further opined
that he would be absent two workdays per month. Tr. 845.
NP Sturm provided an updated statement in October 2020, in which she noted that
Plaintiff’s symptoms include difficulty with maintaining concentration, completing tasks,

engaging in relationships with other people, communicating in basic tasks, and communicating
basic needs. Tr. 880. NP Sturm opined that Plaintiff would be off-task 25% or more of a typical
workday due to trouble with concentrating, reading social cues, and staying engaged. Tr. 882.
She further opined that Plaintiff would be absent more than four workday per month. Tr. 882.
The ALJ relied on two bases to find NP Sturm’s opinion unpersuasive. The ALJ
concluded that NP Sturm’s opinion lacked supportability and was inconsistent with treatment
notes and the longitudinal record. Tr. 83. Both are supported by substantial evidence.
First, the ALJ reasonably found NP Sturm’s medical opinions unpersuasive because they
lacked support in the record. 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 found NP Sturm’s opinions about time off task
and missed work were unsupported by both the treatment notes and the record at large. Tr. 83;
see Tr. 676-79, 822-23, 856 (noting a largely unremarkable mental status exam), 873-76, 890-95.
In fact, without any comment as to missed time or time off task, NP Sturm’s treatment notes
observed that Plaintiff worked and had been doing well in school. Tr. 676 (“doing well in
school”), 679 (“works 40 hours per week in the summer and less during the school year”), 823,
857 (noting that Plaintiff was working as a courtesy clerk and was doing well in school despite
stress during midterms and finals; would likely go on to get a postgraduate degree), 874 (noting
that Plaintiff was working at Market of Choice and wanted to work more in the summer). The
ALJ reasonably concluded that NP Sturm’s notes about Plaintiff’s work history and education

were incompatible with her opinion that Plaintiff would miss work or be off-task. Taking these
conflicting medical reports into consideration, the ALJ therefore sufficiently considered the
supportability of NP Sturm’s opinions when finding them unpersuasive.
The ALJ also reasonably considered that NP Sturm’s opinions were inconsistent with
other medical evidence when finding them unpersuasive. An opinion’s persuasiveness is directly
related 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. The ALJ reasonably found NP Sturm’s opinion was
inconsistent with the record and her own treatment notes. Tr. 83. She opined Plaintiff had trouble
concentrating and completing tasks, but treatment notes, including her own, repeatedly showed
that he was able to maintain attention and concentration. Tr. 82, 677 (NP Sturm noting Plaintiff

had no difficulty concentrating, remembering, or making decisions), 822 (NP Sturm noting no
difficulty concentrating, remembering, or making decisions), 856 (NP Sturm noting “normal
attention and concentrating ability”), 875 (noting normal concentration), 884 (NP Sturm noting
no difficulty concentrating, remembering, or making decisions), 890 (NP Sturm noting “normal
attention and concentrating ability”). These internally conflicting notes were another sufficient
reason for the ALJ to find NP Sturm’s opinions unpersuasive, this time because they lacked
consistency in the record.
Plaintiff argues that the ALJ failed to explain how these records constituted substantial
evidence, and he claims that the ALJ selectively reviewed the record. Pl. Br., ECF No. 14 at 12.
As before, Plaintiff argues about the weight of the medical evidence, which he believes points in
favor of finding NP Sturm’s medical opinions persuasive. But again, it is not this Court’s job to
weigh the evidence, only to assess whether the ALJ’s rationale is “clear enough that it has the
power to convince.” Smartt, 53 F.4th at 499. The ALJ satisfied that standard, and sufficiently

considered the supportability and consistency of NP Sturm’s opinion when deciding it was
unpersuasive. The Court will therefore affirm the ALJ’s findings.
B. Dr. Shields
In September 2019, Dr. Thomas Shields reviewed available medical records and
administered a clinical interview, mental status examination, and Index of Independence in
Activities of Daily Living. Tr. 807. Plaintiff reported that he had a “hard time understanding
social stuff.” Tr. 808. He had been enrolled in special education and graduated with a
mainstream high school diploma. Tr. 808. He was easily fatigued. Tr. 808. He had been without
counseling services for a couple of months because his insurance would not cover the sessions.
Tr. 808. He took Trazodone for insomnia, which helped “significantly.” Tr. 808. He endorsed a

history of deficits in social-emotional reciprocity. Tr. 808. He was socially awkward and had
difficulty making and keeping friends. Tr. 808. He tended to feel “overwhelmed and
overstimulated” in crowds. Tr. 809. He had difficulty understanding others’ emotions and had
problems with the use of nonverbal language. Tr. 809. He was very routine-oriented and
struggled to adapt to change and was hypersensitive to loud sounds. Tr. 809.
Dr. Shields noted that Plaintiff’s speech was normal in volume and rate but marked with
a monotone quality. Tr. 810. He presented with a restricted affect. Tr. 810. He avoided eye
contact. Tr. 810. He appeared “fairly aloof and a bit awkward.” Tr. 810. He made minimal effort
to facilitate rapport with Dr. Shields. Tr. 810. He repeated seven digits forward and four digits
backward. Tr. 810. His intellect was estimated in the average range, and his abstracting ability
appeared intact. Tr. 810. His thought process was sequential and goal directed. Tr. 810. Dr.
Shields diagnosed ASD, unspecified neurodevelopmental delay (visual-spatial, fine motor, gross
motor, and motor planning delays, diagnosed by history), and adjustment disorder with

depression and anxiety. Tr. 811. He concluded that Plaintiff was capable of understanding,
remembering, and carrying out simple and detailed instructions. Tr. 811. He further opined that
Plaintiff would struggle with understanding higher-order abstract language because he was prone
to interpret conversations literally. Tr. 811. He wrote, “[s]ocially, [Plaintiff is] aloof, awkward,
and has problems understanding social cues. He does not adapt well to unexpected changes in his
routine. His fatigue, low stress tolerance, and visual-spatial and motor skill problems would
impact his ability to sustain persistence and pace.” Tr. 811.The ALJ found Dr. Shields’s opinion
“not persuasive.” Tr. 82.
The ALJ reasonably rejected Dr. Shields’ opinion as lacking support in the record and
inconsistent with Plaintiff’s mental status examinations. Tr. 82. As noted above, an opinion’s

persuasiveness is a function of its support in the relevant objective medical evidence, and
consistency with other opinions in the record. See 20 C.F.R. §§ 404.1502(c), (f), (g). Ford, 950
F.3d at 1155. For example, the ALJ noted that on March 19, 2019, Plaintiff maintained an
appropriate appearance; was engaged, responsive, and sensitive; had a normal mood; an anxious
but normal affect; appropriate thought content and processes; normal intellectual functioning;
good insight; fair judgment; and the ability to maintain concentration. Tr. 82, 770. Similarly, the
ALJ cited an August 25, 2020, appointment where Plaintiff showed normal gait, muscle tone,
and psychomotor ability. Tr. 82, 925. He was cooperative and pleasant despite an anxious affect.
Tr. 82, 925. His eye contact was good, his speech was normal, and he showed a linear and
logical thought process. Tr. 82, 925. His ability to concentrate and make associations was intact.
Tr. 82, 925. Again, on November 17, 2020, Plaintiff was cooperative and maintained an
appropriate affect despite a depressed mood. Tr. 82, 905. He had intact thought content, good
attention, intact memory, and a normal estimated intelligence. Tr. 82, 905. These records stood in

contrast to Dr. Shields’ opinions that Plaintiff’s fatigue, low stress tolerance, and motor skill
problems would render him unable to work. The ALJ therefore adequately supported the
conclusion that Dr. Shields’ opinions lacked supportability and consistency with substantial
evidence, and the Court will uphold the ALJ’s finding.
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.
In May 2019, Plaintiff’s grandmother completed a written third-party Function Report, in
which she reported that Plaintiff experiences extreme anxiety when under pressure. Tr. 301. He
struggles with time management and reading social cues. Tr. 301. He has poor fine motor skills
and very poor handwriting. Tr. 301. He has low energy, low muscle tone, slow follow-through,
and poor executive function. Tr. 301. He requires sleeping pills to fall asleep. Tr. 302. He is able
to clean and do laundry but requires reminders. Tr. 303. He is not fully independent from his
family home. Tr. 303. He does not drive due to high anxiety and distractibility. Tr. 304. He
functions at a younger level than his biological age because of developmental delays. Tr. 305. He
has a difficulty making friends. Tr. 305. He has problems getting along with other people

because he is high strung and emotional. Tr. 305. He has trouble hearing and processing things in
normal conversations. Tr. 306. He does not handle changes in routine well and is easily stressed.
Tr. 307. He demonstrates OCD behaviors. Tr. 307. Plaintiff’s mother’s October, 2020 written
testimony mirrored her earlier report.
In February 2020, Plaintiff’s mother also completed a written third-party Function
Report, in which she reported that Plaintiff experiences chronic insomnia, which causes low
energy, weakness, and brain fog. Tr. 328-29. He has anxiety and OCD that derails his ability to
focus and stay on-task. Tr. 328. He has “very rigid” routines. Tr. 328. He needs reminders to take
care of personal needs. Tr. 330. He is able to take out the garbage and wash dishes, but it takes
him longer than necessary because of “excessive vigilance and OCD.” Tr. 330-31. He does not
drive due to poor peripheral vision and inconsistent reflex response. Tr. 331. He needs to be
reminded to look both ways when crossing the street. Tr. 331. His mother pays his bills because
he has poor time management skills. Tr. 332. He is forgetful. Tr. 333. He has problems getting

along with other people because he is very rigid in his views. Tr. 333. He has poor muscle tone
and is physically uncoordinated. Tr. 334. He is able to pay attention for ten minutes at a time on
subjects in which he has an interest. Tr. 334. He has difficulty following spoken instructions. Tr.
334. He handles stress and changes in routine very poorly. Tr. 335. He has extreme anxiety about
natural disasters, academic demands, and not being able to fall asleep. Tr. 335. He is awkward
around peers. Tr. 336.
The ALJ erred by failing to provide specific, germane reasons to discount the lay witness
testimony, but because this lay witness evidence mirrors Plaintiff’s own testimony, this error was
harmless. An ALJ’s failure to provide germane reasons for rejecting lay witness evidence is
harmless where an ALJ properly rejects a claimant’s testimony and the lay witness evidence

describes the same limitations. Molina, 674 F.3d at 1122. Here, the ALJ’s clear and convincing
reasons for discounting Plaintiff’s self-reports, discussed above, apply equally well to the similar
statements from Plaintiff’s mother and grandmother. Compare Tr. 102-109 (Plaintiff’s
testimony) with Tr. 301-317, 328-336 (Plaintiff’s grandmother’s and mother’s third party
function reports). Any error in analyzing these statements was therefore harmless.
CONCLUSION
For the reasons given above, I AFFIRM the Commissioner’s decision and DISMISS this
case with prejudice.
IT IS SO ORDERED.
DATED: 10/26/2023

MICHAEL W. MOSMAN
United States District Judge

18 — OPINION & ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396608. Public record. Not legal advice.