Smith v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

SAMANTHA S., Ca se No. 6:22-cv-01703-AR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________________

ARMISTEAD, Magistrate Judge

In this judicial review of the Commissioner’s final decision denying Social Security

benefits, plaintiff Samantha S. (her last name omitted for privacy) challenges the Administrative

Law Judge’s evaluation finding unpersuasive the medical opinions of Laura Schaben, M.D.,

Cynthia Potts, LPC, and Sarah Reynolds Jackson, LMT. Plaintiff also contends that the ALJ

failed to provide specific, clear and convincing reasons for discounting her subjective symptom

testimony, improperly rejected the testimony of three lay witnesses, and failed to include all of

Page 1 – OPINION AND ORDER

plaintiff’s limitations in the hypothetical to the vocational, resulting in error at step five. The

court concludes the ALJ did not err and the Commissioner’s decision is AFFIRMED.1

ALJ’S DECISION

Plaintiff applied for Title II Disability Insurance Benefits (DIB) on November 13, 2018,

alleging disability beginning August 16, 2018. (Tr. 193.) Her claim was initially denied on

March 5, 2019, and again upon reconsideration on November 7, 2019. (Tr. 85, 101-02.)

Afterwards, plaintiff filed for a hearing, which was held before the ALJ on December 4, 2020.

(Tr. 32.)

In denying plaintiff’s application for DIB, the ALJ followed the five-step sequential

evaluation process.2 At step one, the ALJ determined that plaintiff had not engaged in

substantial gainful activity since August 16, 2018, the alleged onset date. (Tr. 15.) At step two,

the ALJ determined that she had the following severe impairments: multiple sclerosis,

neurocognitive disorder, and depressive disorder. (Tr. 16.) At step three, the ALJ determined that

her impairments singly or in combination did not meet or medically equal the severity of any

listed impairment. (Tr. 16.)

As for the ALJ’s assessment of plaintiff’s residual functional capacity (RFC),

20 C.F.R. §§ 404.1545, 416.945, the ALJ determined that plaintiff has the RFC to perform light

work with the following nonexertional limitations: never climb ladders, ropes, or scaffolds;

1 This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3), and all parties have

consented to jurisdiction by magistrate judge under Federal Rule of Civil Procedure 73 and 28

U.S.C. § 636(c).

2 To determine a claimant’s disability, the ALJ must apply a five-step evaluation. See 20

C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ finds that a claimant is either disabled or not

disabled at any step, the ALJ does not continue to the next step. Id.; see also Parra v. Astrue, 481

F.3d 742, 746–47 (9th Cir. 2007) (discussing the five-step evaluation in detail).

Page 2 – OPINION AND ORDER

tolerate occasional exposure to workplace hazards, such as unprotected heights and exposed

moving machinery; can perform simple, routine tasks that can be learned in 30 days or less; and

can tolerate occasional contact with coworkers and the general public. (Tr. 17.)

At step four, the ALJ determined that plaintiff is unable to perform any past relevant

work as a vocational rehabilitation counselor and an investigator. (Tr. 23-24.) In light of her

RFC, the ALJ found at step five that jobs exist in significant numbers in the national economy

that plaintiff can perform, including such representative occupations as a production assembler,

small products I assembler, and cleaner housekeeper. (Tr. 25.)

STANDARD OF REVIEW

The district court must affirm the Commissioner’s decision if the Commissioner applied

proper legal standards and the findings are supported by substantial evidence in the record. 42

U.S.C. § 405(g); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Substantial evidence is

“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation

and citation omitted). To determine whether substantial evidence exists, the court must weigh all

the evidence, whether it supports or detracts from the Commissioner’s decision. Garrison v.

Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).

DISCUSSION

A. Plaintiff’s Testimony

Determining the credibility of a claimant’s testimony regarding subjective reports of pain

or symptoms requires the ALJ to undertake a two-step process of analysis. Trevizo v. Berryhill,

871 F.3d 664, 678 (9th Cir. 2017). At the first stage, the claimant must present objective medical

evidence of an underlying impairment that could reasonably be expected to produce the alleged

Page 3 – OPINION AND ORDER

symptoms. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014);

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, if there is no

affirmative evidence of malingering, the ALJ must provide specific, clear and convincing

reasons for discounting the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 488-89

(9th Cir. 2015); 20 C.F.R. § 416.929. The specific, clear and convincing standard is “the most

demanding required in Social Security cases” and is “not an easy requirement to meet.”

Garrison, 759 F.3d at 1015; Trevizo v. Berryhill, 871 F.3d 664, 678-79 (9th Cir. 2017).

Plaintiff contends that she cannot engage in full-time, competitive employment because

of her multiple sclerosis (MS) and MS-related issues, including anxiety, depression, extreme

fatigue, cognitive problems, difficulty speaking, and difficulty walking. (Tr. 214.) Plaintiff

alleges that she naps almost daily, suffers mental and physical exhaustion, and that her ability to

process information has been significantly reduced. (Tr. 236.) Plaintiff also stated that although

she could function on good days, on bad days she sleeps, foregoes personal care, and does not

drive. (Tr. 237-39.) Even on good days, plaintiff stated that it takes her longer than normal to do

things such as prepare meals, shop, and perform housework. (Tr. 238-39.)

At the hearing, plaintiff testified that her multiple sclerosis and MS-related symptoms

caused her to stop working. (Tr. 47.) Her fatigue made her leave work more often, prevented her

from traveling as was required by her position, and her cognitive decline made her forget tasks

and lose track of client requests and appointments, resulting in a negative performance review.

(Tr. 47-48.) She explained that her fatigue causes her to sleep more and become more dependent

on her family. (Tr. 48.) Physically, plaintiff testified to having problems with her extremities,

experiencing pins and needles in her hands and feet, predominantly on the right, which prevents

her from grasping writing and kitchen utensils. (Tr. 49.) When describing her good and bad days,

Page 4 – OPINION AND ORDER

plaintiff explained that she has more bad days than good days, and that on bad days she is

completely incapacitated. (Tr. 49.) She also testified that on bad days, her legs are what she

described as “log legs,” meaning she would sometimes have to physically lift them using her

hands, with pain and muscle cramping, worse on the right. (Tr. 50.) Plaintiff stated that she

sometimes is unable to stand to do the dishes, or needs breaks, depending on whether it is a good

day or bad day. (Tr. 51.)

She also testified that she cannot sit for longer than 30 to 60 minutes because she feels

numb with pain, and needs to move around. (Tr. 51.) Plaintiff described having debilitating

headaches every two weeks that require medication, and that she needs to lie down after taking

it. (Tr. 52.) When asked about day-to-day chores like shopping, cleaning, and cooking, plaintiff

testified that her children, husband, and housecleaner handle most of the work. (Tr. 53.) When

asked about treatment, she testified that she is on Ocrevus infusions, that she needs to stay active,

that her insurance supports her doing yoga, and that she has a massage therapist for symptoms

like muscle spasms and other muscle troubles. (Tr. 54.) When asked about her daily activities

such as hiking, she clarified that a report of completing a 20-mile hike in her medical records

was a mistake and was not something she could have done before her sickness progressed. She

also explained that her hiking is limited to two miles with breaks, that she does not go alone, and

that she uses a walking stick for balance. (Tr. 54-55.)

When asked about her cognitive issues, plaintiff testified that she has trouble taking in

information, speaking clearly, and tracking conversations when in group settings. (Tr. 58.) She

testified that she isolates at home and avoids meeting new people. (Tr. 58.) Plaintiff further

explained that she must read written instructions multiple times, that verbal instructions are

frustrating, and that she becomes overwhelmed by stressors. (Tr. 58-59.) She stated that she

Page 5 – OPINION AND ORDER

relies on her family, uses a chalkboard for reminders about activities and appointments, and that

therapy is helping her deal with the stress of illness. (Tr. 59-60.)

The ALJ discounted plaintiff’s subjective symptom testimony because her level of

activity is inconsistent with her allegations and her statements are inconsistent with her medical

records. Plaintiff challenges the ALJ’s assessment of her subjective symptom testimony,

contending that the waxing and waning nature of her MS renders her unable to sustain full-time

employment, and that the ALJ erroneously singled out a few instances of higher functioning and

greater activities to discount her testimony in its entirety. As explained below, the ALJ did not

err.

1. Daily Activities

An ALJ may rely on daily living activities as a basis for discounting subjective symptoms

if the claimant’s activities contradict his testimony or meet the threshold for transferable work

skills. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); Orn v. Astrue, 495 F.3d 625,

639 (9th Cir. 2007). For daily activities to discount subjective symptom testimony, the activities

need not be equivalent to full-time work; it is enough that the claimant’s activities “contradict

claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. Claimants do not,

however, need to be utterly incapacitated to receive disability benefits, and an ability to complete

certain routine activities is insufficient to discount subjective symptom testimony. See id. at

1112-13 (noting that a “claimant need not vegetate in a dark room in order to be eligible for

benefits” (quotation marks omitted)).

The ALJ discounted plaintiff’s subjective symptom testimony because she can drive,

hike, bike, do yoga, garden, and walk multiple times a week. (Tr. 19.) The ALJ explained that

the high level and frequency of her activities undermines her allegations of significant fatigue,

Page 6 – OPINION AND ORDER

difficulty using her lower extremities, and loss of control of her right hand. (Tr. 19.) In doing so,

the ALJ identified specific instances, such as plaintiff driving from eastern Oregon during the

relevant period, regularly engaging in yoga, pursuing a more aggressive yoga practice, doing

yoga for 1.5 hours a day on a vacation, and hiking 20 miles in one weekend. (Tr. 19, 55-56, 658,

660, 666, 702, 705.)

Plaintiff argues that the ALJ erred because he failed to consider her ability to sustain

activity for a full day or full work week. She alleges that her hiking and yoga are minimal and

are performed only on good days. She challenges the ALJ’s reliance on her ability to hike 20

miles in a weekend, contending that the record entry was mistaken. The ALJ acknowledged

plaintiff’s hearing testimony and offered the following rationale:

While [plaintiff] contested some of these entries during testimony, namely that

she could have hiked over 20 miles in one weekend, progress notes supporting

high levels of activity are frequent enough that it is unlikely that her providers

would be routinely confused about her level of activity, and thus it is likely that

she has continued to engage in hiking activity, even if the exact amount of miles

hiked in that one weekend was incorrectly recorded.

(Tr. 19.) As the ALJ described, records show that plaintiff does not need an assistive device

when walking and that she does yoga at least five times a week, which is contrary to her report

that her bad days leave her bedridden and incapacitated more often than good days. (Tr. 19, 49,

660, 693, 715.) The ALJ’s finding that the frequency and level of plaintiff’s activity is

inconsistent with her allegations of disability is supported by substantial evidence, is a

reasonable interpretation of the record, and therefore must be upheld. Burch v. Barnhart, 400

F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational

interpretation, it is the ALJ’s conclusion that must be upheld.”).

2. Inconsistency with Medical Records

Page 7 – OPINION AND ORDER

The ALJ discounted plaintiff’s subjective symptom testimony based on alleged

inconsistencies with the medical record. Inconsistency with the medical record can provide a

clear and convincing basis for discounting a claimant’s symptoms, so long as it is not the sole

basis for doing so. Smartt v. Kijakazi, 53 F.4th 489, 498-99 (9th Cir. 2022); Bray v. Comm’r Soc.

Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).

Plaintiff argues that because the ALJ did not identify what information in her medical

records was inconsistent with her allegations, he failed to provide specific, clear and convincing

reasons. The court disagrees.

Contrary to plaintiff’s contention, the ALJ identified several specific inconsistencies

between her allegations and the medical evidence showing normal gait, normal or mostly normal

strength in her upper and lower extremities, and mostly normal or mild findings regarding her

cognitive abilities. (Tr. 18-20, citing Tr. 475, 537, 555, 559, 561, 569, 578, 598, 611, 617, 649,

655, 660, 668, 702, 705.) For example, the ALJ “acknowledge[d] the progressive nature of

[plaintiff’s] condition, as reflected in notes from mid-2019” that showed some deterioration, yet

“imaging in late 2020 did not show any new lesions or progression of current lesions.” (Tr. 19,

citing 555, 610, 614.) The ALJ recognized that plaintiff reported having difficulty finding the

correct words, having a delayed response, and that she is sometimes described as mildly

tangential. (Tr. 20.) The severity of plaintiff’s allegations, the ALJ found, were undermined by

testing which revealed that her memory, attention, and cognition were largely intact. (Tr. 20,

citing 426, 556, 559, 561, 617.) Viewing those records, the ALJ determined that the severity of

plaintiff’s allegations was not completely supported by the objective medical evidence and

demonstrated that she would be limited to simple work with social limitations. (Tr. 20.) Contrary

to plaintiff’s contention, the ALJ identified specific, clear and convincing examples in the record

Page 8 – OPINION AND ORDER

that undermined her allegations. The ALJ’s findings are supported by substantial evidence, are a

reasonable interpretation of the record, and will not be disturbed. Smartt, 53 F.4th at 499.

B. Medical Opinion Evidence

Plaintiff argues that the ALJ erred in evaluating the medical opinions of Dr. Laura

Schaben, her neurologist; Cynthia Potts, her therapist; and Sarah Reynolds Jackson, her massage

therapist.

For disability claims filed on or after March 27, 2017, new regulations for evaluating

medical opinion evidence apply. Revisions to Rules Regarding the Evaluation of Medical

Opinion Evidence (Revisions to Rules), 2017 WL 168819, 82 Fed. Reg. 5844, at *5867-68 (Jan

18, 2017). Under those revised regulations, the ALJ no longer “weighs” medical opinions but

instead determines which are most “persuasive.” 20 C.F.R. § 404.1520c(a). The new regulations

eliminate the hierarchy of medical opinions and state that the agency does not defer to any

particular medical opinions, even those from treating sources. Id.; see also Woods v. Kijakazi, 32

F.4th 785, 792 (9th Cir. 2022) (“The revised social security regulations are clearly irreconcilable

with our caselaw according special deference to the opinions of treating and examining

physicians on account of their relationship with the claimant.”). Under the new regulations, the

ALJ primarily considers the “supportability” and “consistency” of the opinion in determining

whether an opinion is persuasive. 20 C.F.R. § 404.1520c(c). Supportability is determined by

whether the medical source presents explanations and objective medical evidence to support his

or her opinions. Id. § 404.1520c(c)(1). Consistency is determined by how consistent the opinion

is with evidence from other medical and nonmedical sources. Id. § 404.1520c(c)(2).

An ALJ may also consider a medical source’s relationship with the claimant by looking

at factors such as the length, purpose, or extent of the treatment relationship, the frequency of the

Page 9 – OPINION AND ORDER

claimant’s examinations, and whether there is an examining relationship. Id. § 404.1520c(c)(3).

An ALJ is not, however, required to explain how they considered those secondary medical

factors unless they find that two or more medical opinions about the same issue are equally well-

supported and consistent with the record but not identical. Id. § 404.1520c(b)(2)-(3).

The regulations require ALJs to “articulate . . . how persuasive [they] find all of the

medical opinions” and “explain how [they] considered the supportability and consistency

factors.” Id. § 404.1520c(c)(b). The court must, moreover, continue to consider whether the

ALJ’s analysis has the support of substantial evidence. See 42 U.S.C. § 405(g); Woods, 32 F.4th

at 792 (“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.”).3 Each opinion is addressed below.

1. Dr. Laura Schaben

Plaintiff argues the ALJ improperly found the opinion of Dr. Schaben unpersuasive. Dr.

Schaben has been plaintiff’s neurologist since at least 2011 and treated plaintiff throughout 2020.

(Tr. 555, 713.) Dr. Schaben also provided two medical source statements, one in March 2020,

and another in December 2020. (Tr. 549-52, 713-16.)

In her March 2020 statement, Dr. Schaben found marked limitations in plaintiff’s

understanding and memory, in sustained concentration and persistence, and in adaptation. (Tr.

550-51.) Within the sustained concentration and persistence, plaintiff had mild impairment to her

ability to sustain an ordinary routine without special supervision and in her ability to work in

3 Under the new framework, the ALJ is no longer required to “provide specific and

legitimate reasons for rejecting an examining doctor’s opinion;” rather, the ALJ’s reasons must

“simply be supported by substantial evidence.” Woods, 32 F.4th at 787.

Page 10 – OPINION AND ORDER

coordination or close proximity to others without distracting them. (Tr. 550.) In plaintiff’s social

interactions, Dr. Schaben assessed a marked limitation in her ability to accept instructions and

respond appropriately to criticism, with only mild or no limitations in the other subcategories.

(Tr. 550-51.) Dr. Schaben also stated plaintiff would be off task more than 30 percent of the time

and absent from work five days or more a month. (Tr. 552.) Dr. Schaben based this assessment

on plaintiff’s medical records, physical exams, consultative medical opinions, x-rays, CT scans,

MRIs, and psychological evaluations. (Tr. 551.)

In her December 2020 statement, Dr. Schaben identified multiple symptoms plaintiff

suffers from due to her MS, including unstable walking, balance problems, weakness, increased

deep reflexes, blurred vision, personality change, difficulty solving problems, loss of manual

dexterity, chronic fatigue, parasthesias, and muscle plasticity. (Tr. 713.) She noted plaintiff also

has significant and persistent disorganization of motor functions in her extremities, resulting in

sustained disturbance of gross and dexterous movement or gait and station. (Tr. 713.) Dr.

Schaben opined that plaintiff can only walk one to two city blocks without rest or severe pain,

can sit for two hours at a time, walk for 30 minutes, can sit for six hours and walk less than two

hours in a an eight-hour workday, needs to sit, stand, or walk at will, and needs unscheduled

breaks every one to two hours for 10 to 15 minutes. (Tr. 714.) Additionally, Dr. Schaben opined

that plaintiff can lift 10 pounds occasionally and less than 10 pounds frequently, and that she can

occasionally stoop and twist, and rarely crouch or squat. (Tr. 715.) Dr. Schaben also assessed

that plaintiff postural and manipulative limitations in her upper extremities due to incoordination,

sensory loss/numbness, and fatigue, and that she can use her hands to grasp, turn, and twist

objects five percent of the time, use her fingers for fine manipulation up to 20 percent, reach

forward up to 10 percent, and reach overhead five percent. (Tr. 715.) According to Dr. Schaben,

Page 11 – OPINION AND ORDER

plaintiff would also be off task 25 percent or more of the time, and is limited to low stress work

because of cognitive dysfunction with high stress. (Tr. 715-16.) Finally, Dr. Schaben opined that

plaintiff’s bad days exceed four days per month and she must avoid heat and high stimuli such as

noise and light. (Tr. 716.)

The ALJ found those opinions unpersuasive because the severity of limitations assessed

are unsupported by Dr. Schaben’s own records, which show that plaintiff has a normal gait, and

normal or mostly normal strength in her upper and lower extremities. (Tr. 21, citing Tr. 475, 537,

556, 598, 624.) Similarly, the ALJ found Dr. Schaben’s notes inconsistent with the mental

limitations assessed since plaintiff performed “fairly well” on cognitive testing. (Tr. 21, citing

Tr. 556.) The extreme limitations that Dr. Schaben ascribed to plaintiff’s hands (five percent of

the day) would limit her to using her hands to only three minutes out of each hour, which the

ALJ found was undermined by other evidence revealing that during the relevant period, she

reported driving and even driving for extended periods. (Tr. 21, citing Tr. 660, 666.) In terms of

plaintiff’s ability to lift and carry, the ALJ acknowledged plaintiff’s most recent testing putting

her grip strength between 16-20kg, and thus limited plaintiff to light work. (Tr. 21, 564.) The

ALJ also found Dr. Schaben’s opinion regarding plaintiff’s walking limitation as one to two

blocks was unsupported by her own treatment notes describing plaintiff’s activities, which show

that she regularly hikes, bikes, and walks. (Tr. 21, citing Tr. 655, 658, 660, 665, 668, 702.)

Lastly, the ALJ found Dr. Schaben’s environmental limitations unsupported because her

treatment notes make no mention of environmental limitations, and the heat, noise, and light

limitations otherwise are unexplained. (Tr. 21.) The ALJ’s explanation for finding Dr. Schaben’s

opinions unpersuasive is supported by substantial evidence and is sufficiently articulated.

Kitchen v. Kijakazi, 82 F.4th 732, 740 (9th Cir. 2023).

Page 12 – OPINION AND ORDER

2. Cynthia Potts, LPC

Plaintiff argues that the ALJ improperly found the opinion of Cynthia Potts, plaintiff’s

therapist, unpersuasive. Ms. Potts began treating patient in June 2018, seeing her weekly to

monthly, with her last appointment in September 2020. (Tr. 606.) Like Dr. Schaben, Ms. Potts

provided two medical source statements, one in September 2020, and another in November 2020.

(Tr. 606-09, 696-99.) In her September 2020 opinion, Ms. Potts opined that plaintiff had marked

limitations in her understanding and memory, in her sustained concentration and persistence, and

in her adaptation. (Tr. 696-98.) Plaintiff had mostly mild or normal social interaction limitations,

with only one marked limitation in her ability to ask simple questions or request assistance. (Tr.

697-98.) Plaintiff would also be absent five or more days a month and would be off task more

than 30 percent of an eight-hour day in Ms. Potts’ opinion. (Tr. 699.)

In her November 2020 opinion, Ms. Potts opined that plaintiff had marked limitations in

her ability to understand and remember detailed instructions, and mild to moderate limitations

with very short and simple instructions. (Tr. 607.) Concerning sustained concentration and

persistence, Ms. Potts opined that plaintiff had marked limitations in her ability to carry out

detailed instructions, maintain attention, perform activities within a schedule, sustain a routine,

work in proximity to other, make simple work-related decisions, and had extreme limitations in

her ability to work without interruptions from psychologically-based symptoms. (Tr. 607-08.) In

her social interactions, she had no limitations to mild or moderate limitations. (Tr. 608.) In her

ability to adapt, Ms. Potts opined that plaintiff had marked limitations in her ability to set

realistic goals, make plans independent of others, and in her ability to tolerate normal levels of

stress, with mild to moderate limitations in other subcategories. (Tr. 608-09.) Ms. Potts also

believed plaintiff would be off task at least 20 percent of the time, but would not miss work due

Page 13 – OPINION AND ORDER

to her mental impairments because she could not work due to her MS. (Tr. 609.) Ms. Potts also

provided plaintiff’s GAF scores, with a starting score of 66 and a current score of 56. (Tr. 710.)

The ALJ found Ms. Potts’ opinions unpersuasive because they are inconsistent with

plaintiff’s other medical records. (Tr. 21.) Contrary to Ms. Potts’ findings, the ALJ noted that

plaintiff’s records show that she is alert, oriented, pleasant, and/or cooperative, and her memory

and attention are intact. (Tr. 21, citing Tr. 559, 561, 569-70, 578-83, 611, 617, 649.) The ALJ

found that Ms. Potts’ extreme limitations were undermined by other record evidence showing

that plaintiff could use public transportation with little difficulty, regularly practice yoga, and

frequently hike. (Tr. 21-22, citing 239, 655, 658, 668, 702, 705.) The ALJ also explained that

Ms. Potts’ GAF scores lacked objective testing criteria; that GAF scores can vary from day to

day, time to time, and practitioner to practitioner; and were outweighed by other evidence. (Tr.

22.)4 Because the ALJ adequately explained how the consistency and supportability factors were

considered, and those reasons are supported by substantial evidence, the ALJ did not err in

finding Ms. Potts’ medical opinion unpersuasive.

3. Sarah Reynolds Jackson, LMT

Lastly, plaintiff argues that the ALJ improperly found the opinion of Sarah Reynolds

Jackson, plaintiff’s licensed massage therapist, unpersuasive. Ms. Jackson began treating

plaintiff at the end of January 2019, and provided massage therapy to her one or twice per

month. (Tr. 655, 691.) Ms. Jackson provided a medical source statement in November 2020,

assessing plaintiff’s limitations. (Tr. 691-94.) She opined that plaintiff has difficulty with motor

4 It should also be noted that Ms. Potts provided no medical records for the plaintiff.

Except for the fact that she confirmed she is indeed treating plaintiff, there is no underlying

record basis for her assessed limitations.

Page 14 – OPINION AND ORDER

function in her extremities resulting in lack of gross and dexterous movement or gait and station,

and having reproducible fatigue of motor function with substantial muscle weakness. Ms.

Jackson described that when plaintiff’s symptoms flare, she has repeatedly fallen and dropped

objects. (Tr. 691-92.) However, Ms. Jackson did not elaborate on the reproducible fatigue of

motor function because it is outside the scope of her practice. (Tr. 692.) Concerning plaintiff’s

physical functional limitations, Ms. Jackson assessed that plaintiff needs to sit, stand, or walk at

will; needs unscheduled breaks; can never lift more than 10 pounds; cannot twist, stoop, crouch,

or squat; and is limited in using her hands, arms, and fingers. (Tr. 692-93.) All of those

functional limitations are “depending on how symptoms are manifesting.” (Id.)She also assessed

that plaintiff would be off task 25 percent or more, that emotional factors contribute to her

symptoms, that she has good and bad days, that she would miss work more than four days per

month, and that stress can exacerbate her symptoms. (Tr. 693-94.) Ms. Jackson also imposed

environmental limitations to temperature extremes and noise. (Tr. 694.)

According to plaintiff, the ALJ fails to appreciate the waxing and waning nature of her

MS symptoms and fails to provide a legally sufficient reason for discounting Ms. Jackson’s

opinion. Plaintiff argues that Ms. Jackson’s opinion described what she could reliably perform.

Although plaintiff offers a different interpretation of the evidence, the ALJ has articulated cogent

reasons that are backed by substantial evidence for finding Ms. Jackson’s opinion unpersuasive.

Kitchen, 82 F.4th at 740 (“Under the revised regulations, an ALJ need only provide ‘an

explanation supported by substantial evidence.’” (quoting Woods, 32 F.4th at 792)).

For example, the ALJ discussed that Ms. Jackson’s opinion was largely premised on

“how symptoms are manifesting” and that Jackson did not provide additional analysis leaving

her opinion unsupported and vague. (Tr. 22.) The ALJ also found that Ms. Jackson’s opinion

Page 15 – OPINION AND ORDER

relies on plaintiff’s self-reports rather than objective findings, and that the environmental

limitations fall outside of her expertise and are otherwise unsupported. (Tr. 22.) Lastly, the ALJ

acknowledged that plaintiff’s “symptoms wax and wane to some degree” but found that “the

significant ups-and-dowsn suggested by Ms. Jackson are not entirely consistent with [plaintiff’s]

demonstrated ability to regularly hike and engage in yoga.” Tr. 22.) The ALJ’s findings are

backed by substantial evidence, are a reasonable interpretation of the record, and will not be

disturbed. See Ford, 950 F.3d 1141, 1155 (9th Cir. 2020) (explaining that an ALJ “may

permissibly reject check-off reports that do not contain any explanation of the bases of their

conclusions”) (citation omitted).

C. Lay Witness Testimony

Lay witness testimony about a claimant’s symptoms is competent evidence that an ALJ

must consider unless he “expressly determines to disregard such testimony and gives reasons

germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001);

Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (holding that competent lay witness

testimony “cannot be disregarded without comment” (emphasis in original)).

Plaintiff’s husband, father, and mother provided third-party statements. (Tr. 228-35,

295-303.) Plaintiff argues the ALJ erred by failing to provide germane reasons for discounting

their statements, advancing the same arguments that she did regarding her own testimony. The

Commissioner responds that the ALJ discounted the third-party statements for the same reasons

as plaintiff’s subjective symptom testimony, namely inconsistency, and that the ALJ did not err.

The Commissioner is correct.

Because the ALJ did not err in discounting plaintiff’s subjective symptoms, and the lay

witnesses describe similar limitations, the ALJ did not err in discounting the lay testimony.

Page 16 – OPINION AND ORDER

Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (holding that if ALJ has provided specific,

clear and convincing reasons for discounting claimant’s testimony, and lay witness testimony 1s

similar, ALJ has provided germane reasons for discounting it).

D. The ALJ Did Not Err at Step Five

Plaintiff argues that the ALJ erred at step five because the hypothetical posed to the

vocational expert did not contain limitations and restrictions contained within her testimony, the

lay witness testimony, and the medical opinions of Dr. Schaben, Ms. Potts, and Ms. Jackson. An

ALJ’s hypothetical to a vocational expert is only required to contain those limitations that are

credited and supported by the record. See Sample v. Schweiker, 594 F.2d 639, 643-44 (9th Cir.

1982). As discussed above, because the court has not identified any errors in the ALJ’s

assessment of the evidence, the hypothetical posed to the vocational expert contained all of the

credited limitations and restrictions supported by the record. Accordingly, there is no error at

step five.

CONCLUSION

For the above reasons, the court AFFIRMS the Commissioner’s final decision, and this

action is DISMISSED.

ORDERED on March 5, 2024.

United States Magistrate Judge

Page 17 — OPINION AND ORDER