# King v. Commissioner Social Security Administration

> District Court, D. Oregon · December 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10396803

## Case

- **Court:** District Court, D. Oregon
- **Decided:** December 12, 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/10396803

## How later opinions describe it (automated extraction)

- affirming the ALJ’s credibility finding when the plaintiff's testimony of weight fluctuation was inconsistent with the medical record
- noting that the ALJ may discount the opinion of a treating physician who has not seen the patient long enough to develop a “longitudinal picture”
- holding that ALJ did not err in considering obesity because claimant did not identify “any functional limitations as a result of his obesity that the ALJ failed to consider”

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PAUL K.,1 No. 6:19-cv-2028-MO

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,

Defendant.

MOSMAN, District Judge:

This matter comes before me on Plaintiff Paul K.’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 September 29, 2016, Plaintiff applied for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, with
an amended alleged onset date of February 23, 2012. Tr. 15. The Social Security Administration

(“SSA”) denied his claim initially and upon reconsideration. Tr. 84-116, 171-76. Plaintiff
appeared and testified at a hearing before Administrative Law Judge (ALJ) Mark Triplett on
November 14, 2018. Tr. 33-83. On December 28, 2018, the ALJ issued a decision finding that
Plaintiff had not been under a disability at any time from the alleged onset date through the date
of the decision. Tr. 12-32. Plaintiff filed an appeal, and the Appeals Council denied review. Tr.
1-6.
THE ALJ’S FINDINGS
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since February 23, 2012, the amended alleged onset date. Tr. 18. At step two, the ALJ
determined that Plaintiff had the following severe impairments: degenerative disc disease,

peripheral neuropathy, diabetes mellitus, hyperlipidemia, hypertension, obesity, depression, and
anxiety. Tr. 18. At step three, the ALJ found no impairment that met or equaled the severity of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 18. The ALJ assessed
Plaintiff’s residual functional capacity (“RFC”), as follows:
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he
can occasionally stoop and crawl. He can frequently, but not constantly, handle
and finger bilaterally. The claimant can tolerate occasional exposure to workplace
hazards such as unprotected heights and exposed, moving machinery. He can
perform simple, routine tasks. He can tolerate occasional contact with the general
public.

Tr. 20.
At step four, the ALJ determined that Plaintiff was unable to perform any past relevant
work. Tr. 25. At step five, the ALJ determined that there are jobs that exist in significant
numbers in the national economy that the claimant can perform such as production assembler,
electrical accessories assembler, and routing clerk. Tr. 27. The ALJ therefore found Plaintiff not

disabled. Tr. 27.
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 six issues with the ALJ’s decision. He argues the ALJ erred by: (1)
erroneously discounting his subjective symptom testimony, (2) improperly rejecting the opinion
of his treating psychologist, Dr. Geoffrey Gordon, Psy.D., (3) failing to accurately account for
his obesity, infecting subsequent steps of the five-step evaluation, (4) failing to meet his burden
at step five, (5) erroneously discounting lay witness testimony, and (6) failing to develop the
record. I address these issues 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 114, 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.
When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). “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.”).
At the hearing, Plaintiff testified2 that he has panic attacks “sometimes, almost daily.” Tr.
64. He shared that the panic attacks can last up to a day or more, and affect his ability to focus.
Tr. 65. He complained of short-term memory problems associated with these panic attacks. Tr.

2 Plaintiff also testified about a litany of other physical limitations, see, e.g., Tr. 60-64,
which the parties do not dispute here. See Pl. Br., ECF No. 16 at 12, n. 3; Def. Br., ECF No. 17
at 7-8.
65. He also testified that he has had visual hallucinations for several years, and that he tries to
avoid stressful situations. Tr. 65-66, 260.
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. 21

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. 21. Specifically, the ALJ found Plaintiff’s symptom allegations were
inconsistent with the objective medical evidence, that Plaintiff conditions improved with
treatment, and that Plaintiff’s daily activities conflict with the level of alleged disability in his
testimony. Tr. 22-24.
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). The absence
of corroborating objective medical evidence is not enough, on its own, however, to reject a
claimant’s symptom testimony. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2); SSR 16-3p, 2017
WL 5180304, at *5; Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
The ALJ reasonably relied on conflicting medical records to discount Plaintiff’s
subjective symptom testimony about his mental health symptoms. 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). At the hearing, Plaintiff stated he has

significant anxiety and PTSD, leading to panic attacks that affect his focus and short-term
memory. Tr. 65-66. The ALJ compared these allegations to Plaintiff’s medical history, however,
and found it did not match up with Plaintiff’s allegations. Tr. 23-24. For example, while Plaintiff
alleged disability beginning in 2012 the ALJ noted that Plaintiff did not complain of any mental
health symptoms to a provider until March 2017. Tr. 23 (citing Tr. 821). Plaintiff then had
several visits where he complained of anxious mood, but not about symptoms as severe as those
described in his testimony. Tr. 823, 824. Likewise, the ALJ noted that Plaintiff denied any
depression, sadness, or anxiety and overall was doing well on his current medication. Tr. 717.
Plaintiff’s medical records also showed he had a normal mental status exam, including normal
thought content, affect, and eye contact. Tr. 717. Tr. 743, 862, 867. Several treatment notes with

Dr. Gordon further documented normal mental status findings, including normal thought content,
full orientation, and active participation. Tr. 726, 728, 731, 733, 735, 738, 835, 837, 839, 842.
Finally, the ALJ highlighted that Plaintiff’s allegations of mental health problems were
inconsistent. Tr. 23. While Plaintiff denied panic attacks to one provider, he alleged increasing
panic attacks to his primary care provider. Tr. 23 (citing Tr. 676). Ultimately, the ALJ’s decision
to discount Plaintiff testimony about these symptoms was clear, convincing, and supported by
substantial evidence in the record.
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). Additionally, an ALJ may consider a claimant’s
unexplained or inadequately explained failure to follow a prescribed course of treatment.
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
The ALJ also reasonably concluded that Plaintiff’s mental health symptoms improved
with treatment, which undermined his hearing testimony. Although Plaintiff complained that
symptoms associated with his anxiety and PTSD impacted his ability to work, Tr. 65-66, the ALJ
noted that Plaintiff addressed these symptoms effectively with medications and regular

treatment. Tr. 23. Specifically, Plaintiff began having panic attacks in March, 2017, and by
November of that year was taking Paxil and alprazolam with good results. Tr. 23 (citing Tr. 714).
By his routine exam in September, 2018 Plaintiff denied any depression, sadness, or anxiety and
reported that he overall was doing well on his current medication. Tr. 717. Plaintiff also shared
that counseling and medication were helping with his mental health symptoms. Tr. 678. 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 panic
attacks because it was inconsistent with his daily activities. Tr. 25. 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). The ALJ found Plaintiff’s ability to
participate in therapeutic exercises such as meditation, cognitive behavioral therapy, writing, and
play the guitar contradicted his testimony of “disabling depression/anxiety.” Tr. 25.3
None of the activities the ALJ listed undermines Plaintiff’s testimony about panic attacks

and cognitive limitations associated with depression or anxiety. To discount a Plaintiff’s
testimony, and ALJ must cite daily activities that “meet the threshold for transferable work
skills” or “contradict [a claimant’s] testimony.” Orn, 495 F.3d at 639. The ALJ cited Plaintiff’s
ability to play the guitar, which he did “sometimes to keep [his] mind busy.” Tr. 255, 825. The

3 Plaintiff argues these were impermissible post hoc rationalizations because the ALJ
failed to cite the exhibits reflecting Plaintiff’s guitar playing and meditative exercises in his
opinion, but the Commissioner cited the exhibits in his Brief. Pl. Reply, ECF No. 18 at 13; Def.
Br., ECF No. 17 at 9. Plaintiff’s daily activities are fair game, however, because they are not new
arguments conjured up by the Commissioner after the fact. See Tr. 25. The Court is constrained
to review “the reasons the ALJ asserts,” and the ALJ relied on these reasons expressly in his
opinion. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The fact that the ALJ failed to
cite exhibit numbers backing up his argument in his opinion is regrettable, but does not prevent
the Commissioner from relying on the ALJ’s stated rationale in this appeal. Ibid.
ALJ also highlighted Plaintiff’s ability to meditate and write: at a pair of 2018 counseling
appointments Plaintiff discussed how “some of the YouTube meditation videos he
watched…were helpful in establishing calm.” Tr. 726, 741. It is not clear from the ALJ’s opinion
or Defendant’s brief which of these activities transfers to a “work skill,” or contradicts any piece

of Plaintiff’s testimony. Plaintiff testified that his anxiety and PTSD cause panic attacks,
memory problems, and concentration issues, all of which make it more difficult for him to work.
Tr. 65-66. That Plaintiff plays guitar or occasionally watches YouTube meditation videos to help
him calm down does not meaningfully contradict his testimony or establish transferable work
skills. It was error for the ALJ to rely on this as a basis to discount Plaintiff’s subjective
symptom testimony because substantial evidence does not support the conclusion that Plaintiff’s
daily activities undermine his symptom testimony.
The ALJ’s error was harmless, however, because he identified two other sufficient bases
to discount Plaintiff’s subjective symptom testimony. See Molina, 674 F.3d at 1115 (holding
ALJ’s error “harmless where the ALJ provided one or more invalid reasons for disbelieving a

claimant’s testimony, but also provided valid reasons that were supported by the record”).
Therefore, although the ALJ erred in finding Plaintiff’s daily activities undermined his symptom
testimony, that error was harmless.
II. Medical Opinion Evidence
An ALJ must consider, evaluate, and explain the weight he gave the opinions of medical
professionals who saw the claimant or reviewed his records in a professional capacity. 42 U.S.C.
§ 405(b)(1); 20 C.F.R. §§ 416.927(b), (d) & (e); SSR 6-03p, available at 2006 WL 2329939. For
claims like this one filed before March 17, 2017, the Ninth Circuit distinguishes between the
opinions of three types of physicians: treating physicians, examining physicians, and non-
examining physicians. The opinions of treating physicians are generally accorded greater weight
than the opinions of non-treating physicians. Lester, 81 F.3d at 830.
To reject a contradicted treating doctor’s opinion, the ALJ must present “specific,
legitimate reasons” for doing so. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). When

there is a conflict between medical opinions, the ALJ must provide a detailed and thorough
summary of the facts and conflicting clinical evidence, stating his interpretation of the evidence,
and making findings. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Specific,
legitimate reasons for rejecting a physician’s opinion may include its reliance on a claimant’s
discredited subjective complaints, inconsistency with the medical records, inconsistency with a
claimant's testimony, or inconsistency with a claimant’s activities of daily living. Id. at 1040.
The opinion of a non-examining physician cannot by itself constitute substantial evidence to
reject the opinion of a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830-1 (9th
Cir. 1995). Such opinions are substantial evidence only if they are consistent with other evidence
in the record which contradicts the treating or examining medical opinion at issue. Morgan v.

Comm’r of. Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citations omitted).
A. Dr. Geoffrey Gordon, Psy.D.
Dr. Geoffrey Gordon, Psy.D. is Plaintiff’s treating psychologist and has been seeing him
on a weekly basis since June 7, 2018. Dr. Gordon noted that Plaintiff reported he has not been
able to work since 2007, despite wanting to, the extent of his symptoms fluctuate with the degree
to which he needs to interact with others, he will avoid other people at times because he is aware
of a tendency that emotionally intense interactions cause anger in general, and even aggression
when in a disassociate state, and he has difficulty thinking or concentrating when having a panic
attack. Tr. 741-742. Dr. Gordon also stated that Plaintiff has had persistent panic attacks that are
being addressed in treatment. Tr. 741-742. Dr. Gordon noted several limitations that have been
consistent since the beginning of treatment. Tr. 742. Dr. Gordon has observed Plaintiff become
agitated and psychologically aroused with greater anxiety, and that he does not have issues with
alcohol or drugs. Tr. 742.

Dr. Gordon stated that Plaintiff’s psychological symptoms affect his ability to work with
the public, work in coordination with others, and respond appropriately to criticism and
instruction, he has a limited ability to tolerate interactions with others, which will lead him to
becoming overwhelmed and irritated at people that want to talk to him, and, as such, he would
not be able to complete complex or detailed tasks, or sustain his attention and concentration to
perform simple routine tasks, throughout an 8 hour workday, 5 days per week, consistently
without absences. Tr. 742.
The ALJ gave some weight to the assigned limitations on social interaction with others
and the public based on Plaintiff’s history of depression, anxiety, and panic. Tr. 24. But the ALJ
gave Dr. Gordon’s opinion that Plaintiff would be unable to complete a work day “little weight.”

Tr. 24. The ALJ specifically disregarded Dr. Gordon’s opinions about Plaintiff’s disability as
internally inconsistent,4 inconsistent with the medical record as a whole, and conclusory. Tr. 24.
The ALJ adequately supported his rejection of Dr. Gordon’s opinion with substantial
evidence that the impairments he described do not match up with his contemporaneous clinical

4 Plaintiff argues that the ALJ did not cite internal inconsistency as a reason to discount
Dr. Gordon’s opinion, and that the Commissioner impermissibly raises this justification after the
fact. Pl. Reply at 5 (contending that “the ALJ did not say there were contradictions between the
doctor’s opinion and the doctor’s own observations.”)(emphasis in original). Plaintiff is
incorrect. The ALJ may not have used the word “inconsistency,” but he clearly relied on the
conflict between Dr. Gordon’s notes showing “claimant presented with a normal mental status in
September 2018,” and Dr. Gordon’s opinion one month later that “[Plaintiff] is essentially
disabled and unable to work since 2007.” Tr. 24.
observations or the medical record as a whole. As noted above, internal inconsistencies are a
sufficient reason for an ALJ to find a treating physician’s opinion unpersuasive. Bayliss, 427
F.3d 1216; see also Montavono v. Berryhill, 2018 WL 1069464, at *7 (D. Or. Feb. 26, 2018)
(finding discrepancy between objective examination findings and doctor’s conclusion a “clear

and convincing reason” to discount the medical opinion). For example, the ALJ noted that at all
of Plaintiff’s visits to Dr. Gordon between June 2018 and September 2018, his thought content
was within normal limits, he was fully oriented, he was collaborative, and he actively
participated throughout each session. Tr. 726, 728, 731, 733, 735, 738, 835, 837, 839, 842. The
ALJ likewise relied on the inconsistency between Dr. Gordon observing Plaintiff having a
“normal” mental status in September 2018, and concluding that he was disabled and had been
unable to work since 2007 only a month later. Tr. 742. Furthermore, Dr. Gordon wrote that
Plaintiff completed his symptom checklist with a range of contradictory severities on each
specific symptom, rendering it clinically without value. Tr. 729. In late 2018 Plaintiff also denied
having panic attacks and felt “really good” with only slight anxiety. Tr. 733. Taken together,

these notes provide substantial evidence to support the ALJ’s conclusion that Dr. Gordon’s
opinion that Plaintiff was disabled conflicted with his own observations, and the medical record
as a whole.
The ALJ also reasonably considered Dr. Gordon’s short tenure as Plaintiff’s treating
psychologist. Under the regulations, “length of the treatment relationship and the frequency of
examination” are relevant factors for the ALJ to consider when weighing medical opinions. 20
C.F.R. §§ 404.1527, 416.927. Although Dr. Gordon saw Plaintiff on a weekly or bi-weekly basis, he
had only begun treating Plaintiff in June 2018, just a few months prior to giving his opinion. Tr. 831-
34. The ALJ properly questioned the validity of Dr. Gordon’s opinion on the basis of just a few
months of treatment. See Holohan v. Massanari, 246 F.3d 1195, 1202 n.2 (9th Cir. 2001) (noting that
the ALJ may discount the opinion of a treating physician who has not seen the patient long enough to
develop a “longitudinal picture”). In particular because Dr. Gordon opined that Plaintiff was unable
to work since 2007, and the alleged onset date is February 23, 2012, it was reasonable for the ALJ to
discount Dr. Gordon’s opinion because he based it off a five-month treating relationship that only
began in June, 2018. Tr. 831-34. This was another specific and legitimate basis for the ALJ to
consider when assigning Dr. Gordon’s disability opinion “little weight.”
Plaintiff takes issue with the ALJ’s finding, arguing it lacks specificity5 and that the

record weighs more heavily in favor of Dr. Gordon’s opinions. Plaintiff argues the ALJ failed to
cite the “overwhelming majority” of Dr. Gordon’s notes that support his conclusion that Plaintiff
was unable to work. Pl. Reply, ECF No. 18 at 6 (citing Trevizo, 871 F.3d at 676-677). But it is
not this Court’s job to consider afresh how much weight each individual piece of medical
evidence ought to have. Instead, the Court “must uphold the ALJ’s findings if they are supported
by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th
Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (if the “evidence is
susceptible to more than one rational interpretation, one of which supports the ALJ’s decision,
the conclusion must be upheld”); Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (“We may
not reweigh the evidence or substitute our judgment for that of the ALJ”). Even when there are

two reasonable interpretations—Plaintiff’s and the ALJ’s—the ALJ’s interpretation must prevail.
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more

5 Plaintiff elsewhere argues an “independent reason for reversal” is that the ALJ erred by
failing to adequately consider all the factors about the reliability of medical opinions found in 20
C.F.R. 404.1527(c). Pl. Br., ECF No. 16 at 10. The regulations do not require the ALJ to discuss
the factors, but only to consider them. Kelly v. Berryhill, 732 F. App’x 558, 562 n.4 (9th Cir.
2018); see also 20 C.F.R. § 404.1527(c). Contrary to Plaintiff’s assertion, the ALJ did discuss the
§ 404.1527(c) factors that were relevant to Dr. Gordon’s opinion, in particular its supportability,
and found the opinion wanting. See Tr. 24. This satisfied the ALJ’s obligation under 20 C.F.R.
404.1527(c).
than one rational interpretation, it is the [Commissioner’s] conclusion that must be upheld.”).
Against that backdrop, even though Plaintiff clearly interprets the evidence differently, he has
not (and cannot) establish error by simply advancing a different interpretation of the record. The
ALJ supported his decision to offer Dr. Gordon’s opinion “little weight” with substantial

evidence, and did not err.
III. Obesity
Plaintiff argues that the ALJ also erred by ignoring the effect of obesity on his mental
health symptoms. Pl. Br. at 14-15 (citing Social Security Ruling (SSR) 02-1p). Plaintiff argues
the ALJ’s error infected “almost every other part” of the ALJ’s five-step analysis. Id. SSR 02-1p
requires an ALJ to consider the effect of obesity on a claimant’s residual functional capacity and
explain whether obesity caused any physical or mental limitations. SSR 02-1p, 2002 WL
34686281, at *6-7 (Sept. 12, 2002).
Plaintiff's obesity is well-documented in the record. Tr. 355, 358, 365, 493, 505, 514,
542, 555, 587, 691, 714, 721. The ALJ acknowledged Plaintiff’s obesity, and evaluated its effect

on his ability to work. Tr. 23. Although SSR 02-01p instructs ALJs that fatigue caused by
obesity “may affect the individual’s . . . mental ability to sustain work activity,” 2012 WL
34686281, at *6, in this case, there is no evidence that Plaintiff suffered any mental health
symptoms due to fatigue. The record documents that Plaintiff was obese, but there is no evidence
that he suffered from mental impairments due to obesity. Plaintiff’s testimony and the medical
records refer to Plaintiff’s anxiety, PTSD, and panic attacks—none of which overlap with the
mental health limitations identified in SSR 02-12p.
The ALJ did not err, because he adequately discussed how Plaintiff’s obesity impacted
his other limitations as required by SSR 02-1p. Plaintiff points to no credited medical evidence
or functional limitations describing how his obesity contributes to his mental or physical health
limitations that the ALJ supposedly ignored. Burch v. Barnhart, 400 F.3d 676, 683-84 (9th Cir.
2005) (holding that ALJ did not err in considering obesity because claimant did not identify “any
functional limitations as a result of his obesity that the ALJ failed to consider”). The ALJ

reasonably took record evidence into account, concluded that neither the medical opinion
evidence, nor the symptom testimony indicated that Plaintiff’s obesity contributed to fatigue-
related mental health limitations. Accordingly, the ALJ did not err in considering plaintiff’s
obesity.6
IV. 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

6 Plaintiff also argues the ALJ erred by failing to adequately consider his obesity in the
RFC, or in the hypotheticals posed to the vocational expert (VE) at step five. Pl. Br., ECF No. 16
at 16-17. Plaintiff does not identify any evidence of obesity the ALJ supposedly overlooked,
point to any specific aspect of the RFC he believes is erroneous, or elucidate which question
posed to the VE was inadequate. See id, see also Pl. Reply, ECF No. 16 at 16-17.
In fact, the record shows the ALJ reasonably considered Plaintiff’s obesity, and provided
relevant limitations in the RFC. See, e.g. Tr. 23 (“[C]laimant’s obesity significantly interferes
with his ability to perform physical activities or routine movement but it does not preclude work
activity consistent with the exertional and postural requirements of the residual functional
capacity described above”). The ALJ included these limitations in hypotheticals posed to the VE,
and otherwise supported his step five determination with substantial evidence. Tr 75-77.
Accordingly, the ALJ did not err at step five. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
1190, 1197 (9th Cir. 2004).
nonmedical sources” using the same criteria required for the evaluation of medical sources. 20
C.F.R. §§ 404.1520c(d), 416.920c(d).
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
Plaintiff’s sister has known Plaintiff all her life and sees him 2-3 days a week. Tr. 321.
She provided a lay witness statement that detailed, among other things, how “he gets very
aggravated easy,” and “he’s hard to talk to sometimes,” Tr. 321. Plaintiff’s sister shared that “he

doesn’t focus when I talk to him, loses his train of thought,” and that he seems to have high
anxiety attacks in relation to police as they attacked him. Tr. 323. She described how he has
more and more anxiety attacks which keep him from sleeping well and focusing on daily tasks.
Tr. 318. She also described his difficulties handling stress. Tr. 324.
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, 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 sister. Compare Tr. 65-72 (Plaintiff’s testimony) with Tr. 321-24 (Plaintiff’s
sister’s testimony). Any error in analyzing this statement was therefore harmless.
V. Duty to Develop the Record

Plaintiff also argues the ALJ failed to develop the record in “any area where the record is
inadequate to allow for a proper evaluation of the evidence.” Pl. Br. at 16. As a general matter,
the ALJ has a duty to develop the record, but Plaintiff retains the burden to prove that he is
disabled and must inform the agency about or submit all evidence known to him that relates to
the alleged disability. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009);
20 C.F.R. § 404.1512(d). “An ALJ’s duty to develop the record further is triggered only when
there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of
the evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). This principle does
not allow a claimant to shift his own burden of proving disability to the ALJ. Id. at 459.
The ALJ did not err by failing to further develop the record in this case. Plaintiff points to

no specific area of the record that is either ambiguous or inadequate. Pl. Br at 16. Furthermore,
his request that the Court order the ALJ to further develop the record anywhere it is “inadequate”
is vague, and does not even suggest the ALJ erred in his obligation to develop the record in any
way. The Court finds no error here.
CONCLUSION
For the reasons given above, I AFFIRM the Commissioner’s decision and DISMISS this
case.
IT IS SO ORDERED.
DATED: — 12/12/2023

Wlchash U) Wleaman
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/10396803. Public record. Not legal advice.