Hansen v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHAYLA H.1, Case No. 2:22-cv-1377-SI

Plaintiff, OPINION AND ORDER

v.

MARTIN O’MALLEY, Commissioner of

Social Security,

Defendant.

Katherine L. Eitenmiller and Brent Wells, WELLS, MANNING, EITENMILLER & TAYLOR, PC,

474 Willamette Street, Eugene, OR 97401 Of Attorneys for Plaintiff.

Natalie K. Wight, United States Attorney, and Kevin Danielson, Civil Division Chief,

UNITED STATES ATTORNEY’S OFFICE, 1000 SW Third Avenue, Suite 600, Portland, OR 97204;

Gabriel Bono, Special Assistant United States Attorney, Social Security Administration,

6401 Security Boulevard, Baltimore, MD 21235. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Plaintiff Shayla H. seeks judicial review of the final decision of the Commissioner of the

Social Security Administration (Commissioner) denying Plaintiff’s application for supplemental

security income (SSI). As explained below, the Court affirms the Commissioner’s decision.

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial

of the last name of the non-governmental party in this case. When applicable, this Opinion and

Order uses the same designation for a non-governmental party’s immediate family member.

STANDARD OF REVIEW

The decision of the administrative law judge (ALJ) is the final decision of the

Commissioner in this case. The district court must affirm the ALJ’s decision if it is based on the

proper legal standards and the findings are supported by substantial evidence. 42 U.S.C.

§ 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial

evidence” means “more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of

Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53

F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

When the evidence is susceptible to more than one rational interpretation, the Court must

uphold the ALJ’s conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable

interpretations of the evidence are insignificant if the ALJ’s interpretation is a rational reading of

the record, and this Court may not substitute its judgment for that of the ALJ. See Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court

must consider the entire record as a whole and may not affirm simply by isolating a specific

quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A

reviewing court, however, may not affirm the ALJ on a ground upon which the ALJ did not rely.

Id.; see also Bray, 554 F.3d at 1225.

BACKGROUND

A. Plaintiff’s Application

Plaintiff previously filed an application for SSI on August 23, 2012. Plaintiff’s

application was denied and ALJ M.J. Adams issued an unfavorable decision on January 12,

2017. AR 318-33. Plaintiff again applied for SSI on May 14, 2019, alleging a disability onset

date of May 9, 2019.2 AR 453. Plaintiff’s date of birth is June 21, 1984. Id. She was 34 years old

as of the alleged disability onset date. AR 340. The agency denied Plaintiff’s claims both initially

and upon reconsideration, and Plaintiff requested a hearing. AR 354, 375, 389. Plaintiff appeared

before ALJ MaryAnn Lunderman for a hearing on February 22, 2021. AR 246. The ALJ issued a

decision denying Plaintiff’s claim for benefits. AR 222-40. Plaintiff requested a review of the

ALJ’s decision, which the Appeals Council denied. AR 1-6. The ALJ’s decision thus became the

final decision of the Commissioner and Plaintiff seeks judicial review pursuant to 42 U.S.C.

§ 405(g).

B. The Sequential Analysis

A claimant is disabled if he or she is unable to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which . . . has lasted or

can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for

determining whether an applicant is disabled within the meaning of the Social Security Act.”

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are:

(1) Is the claimant presently working in a substantially gainful

activity? (2) Is the claimant’s impairment severe? (3) Does the

impairment meet or equal one of a list of specific impairments

described in the regulations? (4) Is the claimant able to perform

any work that he or she has done in the past? and (5) Are there

significant numbers of jobs in the national economy that the

claimant can perform?

2 Plaintiff’s application in the record is dated May 14, 2019. The administrative

determinations, however, including the ALJ’s opinion, all reference her application as dated

May 10, 2019. See ,e.g., AR 223, 339. This discrepancy is immaterial for purposes of this

Opinion and Order.

Keyser, 648 F.3d at 724-25. Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4). If the analysis continues beyond step three, the ALJ must evaluate medical and

other relevant evidence to assess and determine the claimant’s “residual functional capacity”

(RFC).

The claimant bears the burden of proof at steps one through four. Bustamante v.

Massanari, 262 F.3d 949, 953 (9th Cir. 2001); see also Tackett v. Apfel, 180 F.3d 1094, 1098

(9th Cir. 1999). The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d

at 1100. At step five, the Commissioner must show that the claimant can perform other work that

exists in significant numbers in the national economy, “taking into consideration the claimant’s

residual functional capacity, age, education, and work experience.” Id.; see also 20 C.F.R.

§§ 404.1566, 416.966 (describing “work which exists in the national economy”). If the

Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform

other work existing in significant numbers in the national economy, the claimant is not disabled.

Tackett, 180 F.3d at 1099; see Bustamante, 262 F.3d at 954.

C. The ALJ’s Decision

The ALJ first determined that Plaintiff’s condition had worsened and thus rebutted the

presumption of non-disability from the previous determination by ALJ Adams. AR 222. The

ALJ then proceeded to the sequential analysis. At step one, the ALJ found that Plaintiff had not

engaged in substantial gainful activity since the date of Plaintiff’s application. AR 225. At step

two, the ALJ found that Plaintiff had the following severe impairments: schizophrenia/psychotic

disorder, major depressive disorder, generalized anxiety disorder, posttraumatic stress disorder

(PTSD), marijuana use disorder, lumbar spondylosis with radiculopathy, cervical degenerative

disc disease, right knee degenerative joint disease, fibromyalgia, migraine headaches, obesity,

and chronic obstructive pulmonary disease. Id. At step three, the ALJ determined that none of the

impairments, either individually or in combination, met or medically equaled the severity of one

of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 226.

The ALJ next determined Plaintiff’s RFC and found that Plaintiff could perform light

work as defined in 20 C.F.R. § 416.967(b) except she can only occasionally climb ladders, ropes,

or scaffolds, and frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl.

AR 229. Furthermore, the ALJ found that Plaintiff can only have less than occasional exposure

to unprotected heights, workplace hazards, fluorescent or similar bright light, and pulmonary

irritants. Id. Plaintiff was further limited to simple unskilled tasks with an Specific Vocational

Preparation and Reasoning Level of 1 or 2, with minimal changes in the assigned tasks and that

tasks must be learned in thirty days or less or by a brief demonstration. Id. The tasks must require

no more than occasional, brief, intermittent work-related contact with coworkers, supervisors,

and the public. Id. Finally, Plaintiff must be allowed to wear sunglasses and headphones while

working with no direct exposure to bright lighting, such as fluorescent lighting, in the assigned

workspace. AR 229-30. At step five, relying on testimony of a vocational expert (VE), and

considering Plaintiff’s age, education, work experience, and RFC, the ALJ concluded that

Plaintiff could perform jobs that exist in significant numbers in the national economy, including

Routing Clerk (104,000 jobs in the national economy), Production Assembler (59,300 jobs in the

national economy, reduced by 15-20 percent based on Plaintiff’s RFC), and Marker (129,000

jobs in the national economy). AR 239. The ALJ thus concluded that Plaintiff was not disabled.

AR 240.

DISCUSSION

Plaintiff argues that the ALJ erred by (A) improperly discounting Plaintiff’s subjective

symptom testimony, (B) improperly rejecting medical opinion evidence from Plaintiff’s

treatment providers, Dr. Ashley Anderson, D.O., and Sean Becker, MSW, QMHP (Becker), and

(C) improperly rejecting the lay witness testimony of Plaintiff’s mother. The Court addresses

each argument in turn.

A. Plaintiff’s Subjective Symptom Testimony

A claimant “may make statements about the intensity, persistence, and limiting effects of

his or her symptoms.” SSR 16-3p, 2017 WL 5180304, at *6 (Oct. 25 2017).3 There is a two-step

process for evaluating a claimant’s testimony about the severity and limiting effect of the

claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must

determine whether the claimant has presented objective medical evidence of an underlying

impairment ‘which could reasonably be expected to produce the pain or other symptoms

alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v.

Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant need not

show that her impairment could reasonably be expected to cause the severity of the symptom she

has alleged; she need only show that it could reasonably have caused some degree of the

symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering

specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must

state which pain testimony is not credible and what evidence suggests the complaints are not

3 Effective March 28, 2016, Social Security Ruling (SSR) 96-7p was superseded by SSR

16-3p, which eliminates the term “credibility” from the agency’s sub-regulatory policy. SSR 16-

3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 Fed. Reg. 14166 (Mar.

16, 2016). Because, however, case law references the term “credibility,” it may be used in this

Opinion and Order.

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be

“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily

discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing

Bunnell, 947 F.2d at 345-46).

Consideration of subjective symptom testimony “is not an examination of an individual’s

character,” and requires the ALJ to consider all of the evidence in an individual’s record when

evaluating the intensity and persistence of symptoms. SSR 16-3p, available at 2016

WL 1119029, at *1-2. The Commissioner recommends that the ALJ examine “the entire case

record, including the objective medical evidence; an individual’s statements about the intensity,

persistence, and limiting effects of symptoms; statements and other information provided by

medical sources and other persons; and any other relevant evidence in the individual’s case

record.” Id. at *4. The Commissioner further recommends assessing: (1) the claimant’s

statements made to the Commissioner, medical providers, and others regarding the claimant’s

location, frequency and duration of symptoms, the impact of the symptoms on daily living

activities, factors that precipitate and aggravate symptoms, medications and treatments used, and

other methods used to alleviate symptoms; (2) medical source opinions, statements, and medical

reports regarding the claimant’s history, treatment, responses to treatment, prior work record,

efforts to work, daily activities, and other information concerning the intensity, persistence, and

limiting effects of an individual’s symptoms; and (3) non-medical source statements, considering

how consistent those statements are with the claimant’s statements about his or her symptoms

and other evidence in the file. See id. at *6-7.

The ALJ’s decision relating to a claimant’s subjective testimony may be upheld overall

even if not all the ALJ’s reasons for discounting the claimant’s testimony are upheld. See

Batson, 359 F.3d at 1197. The ALJ may not, however, discount testimony “solely because” the

claimant’s symptom testimony “is not substantiated affirmatively by objective medical

evidence.” Robbins, 466 F.3d at 883.

In making his finding, the ALJ offered the boiler plate statement that Plaintiff’s

“statements concerning the intensity, persistence and limiting effects of these symptoms are not

entirely consistent with the medical evidence and other evidence in the record for the reasons

explained in this decision.” AR 232. The ALJ then explained that she discounted Plaintiff’s

testimony because her treatment has been routine and conservative and the objective medical

evidence does not support her alleged limitations.

1. Specificity

As an initial matter, Plaintiff argues that the ALJ simply recited Plaintiff’s medical record

and did not identify what testimony was found not credible and why, and thus the ALJ’s opinion

is not sufficiently specific. An ALJ must specifically identify what evidence contradicted what

testimony. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th

Cir. 2014) (stating that an ALJ may not vaguely conclude that “a claimant’s testimony is ‘not

consistent with the objective medical evidence,’ without any ‘specific findings in support’ of that

conclusion” (quoting Vasquez, 572 F.3d at 592). A court “cannot review whether the ALJ

provided specific, clear, and convincing reasons for rejecting [a clamaint’s] pain testimony

where . . . the ALJ never identified which testimony she found not credible, and never explained

which evidence contradicted that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir.

2020) (emphases in original) (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir.

2015)). “[A]n 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” but must “specify which testimony she finds not credible,”

and the district court may not “comb the administrative record to find specific conflicts.” Brown-

Hunter, 806 F.3d at 489, 494 (quoting Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014));

see also Lambert, 980 F.3d at 1278 (stating that “provid[ing] a relatively detailed overview of [a

claimant’s] medical history . . . ‘is not the same as providing clear and convincing reasons for

finding the claimant’s symptom testimony not credible.’” (emphasis in original) (quoting Brown-

Hunter, 806 F.3d at 494)). Instead, the ALJ must “identify the testimony she found not credible”

and “link that testimony to the particular parts of the record supporting her non-credibility

determination.” Brown-Hunter, 806 F.3d at 494. Failure to do so is legal error. Id.

Plaintiff’s alleged disability is based on a combination of alleged pain and debilitating

mental health symptoms. The ALJ included specific statements Plaintiff made to providers

regarding her alleged pain, and then discussed the medical records that the ALJ found did not

support those statements. For example, the ALJ noted that while Plaintiff stated she goes weeks

without getting out of bed due to pain, and the ALJ discussed treatment records that did not

support that statement. AR 231-34. The ALJ also stated that Plaintiff complained of back pain,

and the ALJ then discussed treatment records that did not support that complaint. AR 232-33.

Likewise, regarding Plaintiff’s mental health symptoms, the ALJ highlighted Plaintiff’s

complaints of problems concentrating and severe anxiety, then discussed treatment records that

did not support those complaints. AR 234-36. The ALJ did not err for lack of specificity.

2. Conservative Treatment

Routine, conservative treatment can be sufficient to discount a claimant’s subjective

testimony regarding the limitations caused by an impairment. Parra v. Astrue, 481 F.3d 742,

750-51 (9th Cir. 2007). Not seeking an “aggressive treatment program” permits the inference

that symptoms were not “as all-disabling” as the claimant reported. Tommasetti v. Astrue, 533

F.3d 1035, 1039 (9th Cir. 2008). The amount of treatment is “an important indicator of the

intensity and persistence of [a claimant’s] symptoms.” 20 C.F.R. § 416.929(c)(3). If, however,

the claimant has a good reason for not seeking more aggressive treatment, conservative treatment

is not a proper basis for rejecting the claimant’s subjective symptoms. Carmickle v. Comm’r,

Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).

The Commissioner argues that the ALJ properly considered Plaintiff’s treatment history.

Plaintiff argues only that the ALJ’s recitation of the medical evidence and focus on the lack of

support in the objective medical evidence is erroneous. In evaluating Plaintiff’s subjective

symptom testimony, however, the ALJ also specifically stated that Plaintiff’s treatment for her

“physical conditions has largely been routine and conservative,” AR 232, and that she

“continued to receive conservative treatment for complaints of pain.” AR 233. In evaluating the

medical evidence, the ALJ concluded that the opinions of the state agency medical doctors were

consistent with Plaintiff’s “treatment records that show conservative treatment for the

conditions.” AR 237. Thus, the ALJ repeatedly stated that Plaintiff’s conservative treatment was

a factor in the ALJ’s analyses.

Plaintiff has had treatment for her physical symptoms such as physical therapy and

nonnarcotic pain medication. These are considered conservative treatments. See Smartt v.

Kijakazi, 53 F.4th 489, 500 (9th Cir. 2022) (stating that physical therapy and ongoing pain

medication is conservative treatment); see Tommasetti, 533 F.3d at 1040 (describing physical

therapy, anti-inflammatory medication, a transcutaneous electrical nerve stimulation unit, and a

lumbosacral corset as conservative treatment). The ALJ thus did not err in considering Plaintiff’s

conservative treatment to discount her testimony.

3. Lack of Support in Medical Records

An ALJ may consider the lack of corroborating objective medical evidence as a “relevant

factor in determining the severity of the claimant’s” alleged symptoms. Rollins v.

Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ may not, however, “discredit the

claimant’s testimony as to subjective symptoms merely because they are unsupported by

objective evidence.” Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (quoting Lester v.

Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Robbins, 466 F.3d at 883; 20 C.F.R.

§ 416.929(c)(2) (noting that the Commissioner “will not reject your statements about the

intensity and persistence of your pain or other symptoms or about the effect your symptoms have

on your ability to work solely because the available objective medical evidence does not

substantiate your statements”).

At the hearing, Plaintiff testified that she cannot sustain full-time employment because

she can only concentrate for very short amounts of time, gets easily overwhelmed, has severe

anxiety, can only sit or stand for 15 minutes, cannot lift more than 12-to-15 pounds, experiences

back pain and migraines, does not interact with others when having headaches due to increased

anxiety, and experiences drowsiness, fatigue, dizziness, and lightheadedness due to medication.

AR 257-61, 265. Plaintiff also testified that she exercises by walking up and down the 13 stairs

in her house, that bright lights exacerbate her migraines, that she watches videos on Tik Tok, that

she scrolls through Facebook, that she is not engaged in any hobbies, does not garden or do

yardwork, has her father take her to the laundromat so she can do laundry, and does not cook.

AR 262-64. Plaintiff continued, stating that she “constantly” suffers from auditory

hallucinations, does not leave the house alone, experiences anxiety attacks that are easily

triggered, feels as though she is being watched everywhere she goes, and does not have friends.

AR 269-71.

In her function report, Plaintiff stated she could not sit or stand for long periods of time,

suffers from some level of PTSD, could not concentrate or focus, experiences debilitating

migraines that will leave her bedridden for 12-24 hours, has a high level of anxiety with

accompanying panic attacks, and that her schizoaffective disorder causes her to experience audio

and visual hallucinations, as well as paranoia. AR 492. She also endorsed needing her mom’s

help taking care of her son and three dogs, that her pain affects her sleep and ability to care for

herself and son, that she can only make simple meals, that she does some chores when she is

able, that she does not go out alone, and that she does not handle any level of stress well.

AR 493-98.

The ALJ evaluated Plaintiff’s testimony by dividing her “physical conditions” and

“physical impairments,” AR 232-34, from her “mental limitations.” AR 234. When the ALJ

divides testimony into separate parts, the ALJ may not discount one part as unsupported by the

objective medical evidence and then discount the entire testimony on that basis. See Dale v.

Colvin, 823 F.3d 941, 945-46 (9th Cir. 2016); Thus, both Plaintiff’s physical and mental

limitations must be unsupported by the medical record for this factor to be relevant in

discounting each of those aspects of Plaintiff’s testimony.

The ALJ described various objective medical records that he found did not support

Plaintiff’s physical symptoms. The ALJ noted that despite Plaintiff’s complaints of pain and

reports of being able to lift between 10-15 pounds, she exhibited normal range of motion, full

strength in extremities, normal lung function, normal gait, presented in no acute distress at

appointments despite asserting pain levels at 8/10 or 9/10, and had only mild or normal findings

on MRIs, x-rays, and exams. AR 232-34 (citing AR 1496, 1498, 17332, 2146-47, 2159, 2225,

2226). The ALJ further noted that Plaintiff had only mild spondylolisthesis, minimal nerve

compression, migraine without aura that was not intractable, lumbar spondylosis with

radiculopathy, mild grade one anterolisthesis of L5-S1, mild right-sided foraminal stenosis at L5-

S1, and chronic midline lower back pain with left sided sciatica. AR 232-33 (citing AR 1732,

2041, 2045, 2159, 2215, 2226).

The ALJ does not explain how Plaintiff’s complaints of pain in her back are undermined

by her normal gait, normal range of motion, full strength in her extremities, and lack of acute

distress. This is particularly so given both Plaintiff’s diagnosis of fibromyalgia as well as the

abnormal findings on exams listed above occurring from 2019 to 2021. As noted by the Ninth

Circuit, those suffering from fibromyalgia have “muscle strength, sensory functions, and reflexes

that are normal.” Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017) (cleaned up). The ALJ,

however, could consider the mild findings from Plaintiff’s imaging as a relevant factor in

discounting Plaintiff’s testimony regarding her back pain. See Burch, 400 F.3d at 681.

Regarding Plaintiff’s mental health symptom testimony, the ALJ found that despite

Plaintiff’s complaints of PTSD, inability to concentrate and focus, depression, severe anxiety,

audio and visual hallucinations, panic attacks, and paranoia, she exhibited grossly normal

findings when tested, denied psychoses, sometimes denied experiencing hallucinations, denied

experiencing side effects from medication, indicated at least some of her depression was

situational, and endorsed getting better on medication when taken consistently. AR 234-36

(citing, e.g., AR 1555, 1816, 1833, 2074, 2086, 2108, 2128, 2171, 2142, 2147, 2157, 2159, 2204,

2223, 2259). These records do not support Plaintiff’s alleged limitations and are a relevant

consideration. Thus, the objective medical evidence is a further clear and convincing reason,

supported by substantial evidence, for the ALJ to discount Plaintiff’s testimony.

B. Medical Opinion Evidence

Plaintiff filed her application for benefits on May 10, 2019. For claims filed on or after

March 27, 2017, Federal Regulation 20 C.F.R. § 416.920c governs how an ALJ must evaluate

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

Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Under these new regulations, ALJs no longer

“weigh” medical opinions, but rather determine which are most “persuasive.” 20 C.F.R.

§ 416.920c(a)-(b). 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 opinions in determining whether an opinion is persuasive. 20 C.F.R.

§ 416.920c(c). Supportability is determined by whether the medical source presents explanations

and objective medical evidence to support his or her opinion. 20 C.F.R. § 416.920c(c)(1).

Consistency is determined by how consistent the opinion is with evidence from other medical

and nonmedical sources. 20 C.F.R. § 416.920c(c)(2).

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

to factors such as the length of the treatment relationship, the frequency of the claimant’s

examinations, the purpose of the treatment relationship, the extent of the treatment relationship,

and whether there is an examining relationship. Id. § 416.920c(c)(3). An ALJ is not, however,

required to explain how he or she considered these secondary medical factors, unless he or she

finds that two or more medical opinions about the same issue are equally well-supported and

consistent with the record but not identical. Id. § 416.920c(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.” 20 C.F.R. § 416.920c(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); see also

Woods, 32 F.4th at 792 (“Our requirement that ALJs provide ‘specific and legitimate reasons’ for

rejecting a treating or examining doctor’s opinion, which stems from the special weight given to

such opinions is likewise incompatible with the revised regulations. . . . 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.” (citation

omitted)).

1. Dr. Ashley Hoeck Anderson, D.O.

Between December 10, 2020 and February 25, 2021, Dr. Anderson treated Plaintiff on

four occasions.4 AR 208-12 (February 25, 2021), 2170-73 (December 31, 2020), 2180-87

(December 10, 2020), 2258-61 (January 28, 2021). On February 25, 2021, Dr. Anderson

provided a mental health residual functional capacity assessment on Plaintiff’s behalf. AR 2240-

45.

In her statement, Dr. Anderson opined that because of Plaintiff’s schizoaffective disorder,

PTSD, insomnia, extrapyramidal syndrome, GAF score, tardive dyskinesia, and medication side

effects, Plaintiff would require additional unscheduled breaks during an eight-hour workday.

4 Dr. Anderson continued treating Plaintiff after February 2021, but for purposes of the

ALJ’s evaluation of Dr. Anderson’s written opinion, only her treatment before February 25, 2021

is relevant.

AR 2240, 2244. She also stated Plaintiff would miss more than four days of work per month and

experienced three episodes of decompensation within twelve months with each lasting for at

least two weeks. AR 2245. She further noted that Plaintiff had marked limitations in her ability

to understand and remember detailed instructions, ability to perform activities within a schedule,

maintain regular attendance, and be punctual within customary tolerances, ability to sustain

ordinary routine without special supervision, ability to work with others without being distracted

by them, ability to respond appropriately to changes in the work setting, ability to travel to

unfamiliar places or use public transportation, ability to tolerate normal levels of stress, ability to

maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness.

AR 2243-44. She further found that Plaintiff had extreme limitations in her ability to complete a

normal workday and work week without interruption from psychologically based symptoms and

to perform at a consistent pace without an unreasonable number and length of rest periods.

AR 2243. The ALJ concluded that Dr. Anderson’s opinion was not fully persuasive because

there was no indication that she reviewed the longitudinal record to form a comprehensive

opinion of Plaintiff’s functioning, the limitations appeared primarily based on Plaintiff’s self-

report, the limitations were inconsistent with Dr. Anderson’s own treatment notes and Plaintiff’s

reports of improvement while being treated by Dr. Anderson, and the limitations were

inconsistent with the normal examination findings throughout the record and the evidence as a

whole. AR 237-38.

An ALJ may discount a medical source opinion if it is not supported by her treatment

notes. See Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (stating that an ALJ may discount

medical opinions that are “inadequately supported by clinical findings” (quoting Thomas v.

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002))); 20 C.F.R. § 404.1520c(c)(1) (explaining that the

“supportability” factor considers “the objective medical evidence and supporting explanations

presented by a medical source . . . to support his or her medical opinion(s)”). Dr. Anderson’s

records do not contain clinical findings sufficient to support the severe limitations contained in

her psychological assessment. At Plaintiff’s first visit with Dr. Anderson she reported a history

of improvement with medication, but that it had stopped being as beneficial. AR 2181. In her

next visit, after three weeks with no treatment, she reported added stress due to the holidays but

no worsening in her condition. AR 2170. In her third visit, Plaintiff reported improvement from

the medication changes prescribed by Dr. Anderson. AR 2259. In her final visit, on February 25,

2021, after four weeks without treatment and when she reported increased stress, Plaintiff

reported increased symptoms. AR 209. She also reported difficulties with her medication and

requested a change in medication. Even during this visit reporting increased difficulties,

Dr. Anderson’s mental status exam and other findings do not support such severe restrictions.

An ALJ also may reject medical source opinion evidence that is inconsistent with other

medical opinions of record, or inconsistent with the objective medical evidence. See

Tommasetti, 533 F.3d at 1041 (concluding that the ALJ did not err in rejecting medical opinion

that was inconsistent with objective medical evidence and another medical opinion of record); 20

C.F.R. § 404.1520c(c)(2) (explaining that the “consistency” prong evaluates how consistent an

opinion “is with the evidence from other medical sources”). Plaintiff’s other medical records

show that while she has never been specifically tested with regard to her cognition, her exams

show that she scored 30/30 on a mini mental status exam, and had mostly normal findings

regarding her memory, cognition, insight and judgment, and with minimal, if at all, inability to

concentrate. AR 1833, 2074, 2086, 2102, 2121, 2128, 2171. Other records show that she

consistently walks one to two miles in the community, demonstrated an ability to care for her

friends and meet romantic partners, and showed improvement in her symptoms, which is

inconsistent with Dr. Anderson’s opinion. AR 1839, 1841, 1857, 2086, 2168, 2174, 2201.

Plaintiff cites other evidence in the record that she argues supports Dr. Anderson’s

limitations. The ALJ’s interpretation is a rational reading of the record, however, and thus must

be upheld. See Burch, 400 F.3d at 679 (“Where evidence is susceptible to more than one rational

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

The ALJ also discounted Dr. Anderson’s opinion because she had treated Plaintiff for

only a limited duration and did not have a longitudinal view of Plaintiff’s limitations. This is a

relevant factor an ALJ may consider. 20 C.F.R. § 404.1520c(c)(3)(i). The ALJ thus considered

Dr. Anderson to have improperly relied on Plaintiff’s subjective self-reports. “If a treating

provider’s opinions are based to a large extent on an applicant’s self-reports and not on clinical

evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating

provider’s opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (quotation marks

omitted). “Psychiatric evaluations may appear subjective, especially compared to evaluation in

other medical fields. Diagnoses will always depend in part on the patient’s self-report, as well as

on the clinician’s observations of the patient. But such is the nature of psychiatry.” Buck v.

Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). Plaintiff argues that Buck applies. Dr. Anderson,

however, provided medical management for Plaintiff and did not perform the objective

psychiatric tests and other objective measures of the type on which to base significant psychiatric

limitations. Dr. Anderson’s longitudinal understanding of Plaintiff’s functioning and reliance on

Plaintiff’s subjective reporting are additional valid reasons provided by the ALJ to discount

Dr. Anderson’s opinion.

2. Sean Becker, MSW, QMHP

Between December 14, 2020 and February 23, 2021, Becker treated Plaintiff six times.

AR 213-18 (February 17 and 22, 2021); 2167-68 (January 6, 2021); 2173-79 (December 14, 23,

and 30, 2020).5 On February 26, 2021, Becker provided a mental health residual functional

capacity assessment of Plaintiff. AR 2282-86.6 His assessment mirrored much of Dr. Anderson’s

while also noting Plaintiff had no limitations in her understanding and memory and that she had

good memory skills. AR 2284-85. In addition to noting marked and extreme limitations in many

of the same categories as Dr. Anderson, Becker also noted marked and extreme limitations in

ability to maintain attention and concentration for extended periods, ability to make simple work-

related decisions, ability to accept instructions and respond appropriately to criticism from

supervisors, and ability to set realistic goals or make plans independently of others. AR 2284-85.

Becker further noted that Plaintiff had a current history of one or more years’ inability to

function outside a highly supported living arrangement with an indication of continued need for

such an arrangement. AR 2286. The ALJ found Becker’s opinion unpersuasive for the same

reasons as Dr. Anderson’s, notably that it was based on Plaintiff’s self-reports and inconsistent

with his own treatment records as well as other medical records. AR 238. The ALJ also found

that Becker is not an acceptable medical source. Id.

5 Becker continued treating Plaintiff after February 2021, but for purposes of evaluating

the ALJ’s assessment of Becker’s medical source opinion, the Court considers his treatment

before February 23, 2021.

6 The first page of Becker’s assessment appears to be missing from the record. The

exhibit contains Plaintiff’s signed release and then pages two to six of Becker’s assessment. A

comparison to the same form provided by Dr. Anderson shows that the first page is not included.

The ALJ erred in rejecting Becker’s opinion because he was not an “acceptable medical

source.” Becker is a “medical source,” 20 C.F.R. § 416.902(i), and as such may offer a medical

opinion. Id. § 416.913(a)(2).

The other reasons given by the ALJ, however, are sound. An independent review of the

record supports the ALJ’s holding that Becker’s opinion is unsupported by his own treatment

records, as well as other medical record evidence. Becker’s treatment notes are sparse, and do

not reflect the marked and extreme limitations assessed. His sessions with Plaintiff focus on her

relationship with her mother, but there are no notes that would reasonably lead to the extreme

assessment given. Likewise, Becker does not explain what he believes to be a supportive living

arrangement and his therapy notes do not suggest that Plaintiff is in need of one. Becker’s

treatment notes are also inconsistent with the other medical evidence of record and

impermissibly reliant on Plaintiff’s self-reports for the same reasons as Dr. Anderson’s above.

Therefore, the ALJ did not err in finding Becker’s opinion unpersuasive.

C. Lay Witness Testimony

“In determining whether a claimant is disabled, an ALJ must consider lay witness

testimony concerning a claimant’s ability to work.” Stout v. Comm’r, 454 F.3d 1050, 1053

(9th Cir. 2006). Lay witness testimony regarding a claimant’s symptoms or how an impairment

affects her ability to work is competent evidence. Id. Thus, an ALJ may not reject such testimony

without comment and “must give reasons that are germane to each witness.” Id. (quoting Dodrill,

12 F.3d at 919). In rejecting lay testimony, however, the ALJ need not “discuss every witness’s

testimony on an individualized, witness-by-witness basis. Rather, if the ALJ gives germane

reasons for rejecting testimony by one witness, the ALJ need only point to those reasons when

rejecting similar testimony by a different witness.” Molina v. Astrue, 674 F.3d 1104, 1114 (9th

Cir. 2012).

An ALJ errs by failing to “explain her reasons for disregarding . . . lay witness testimony,

either individually or in the aggregate.” Molina, 674 F.3d at 1115 (quoting Nguyen v.

Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)). Such an error may be harmless, and a court must

determine whether the error is “‘inconsequential to the ultimate nondisability determination’ in

the context of the record as a whole.” Id. at 1122 (quoting Carmickle, 533 F.3d at 1162-63). The

error is harmless, for example, “[w]here 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.” Id. at 1117.

The Commissioner argues that under new regulations governing the evaluation of

medical evidence, an ALJ need not provide any reason for rejecting lay witness statements.

Subsection (d) of the new reshowgulations provides: “We are not required to articulate how we

considered evidence from nonmedical sources using the requirements in paragraphs (a)-(c) in

this section.” 20 C.F.R. § 416.920c(d). Subsections (a) through (c) lay out the new standards for

evaluating medical opinion evidence. Id. § 416.920c(a)-(c). Thus, under the new regulations, the

ALJ is not required to use the standards for evaluating medical opinion evidence when

evaluating lay witness testimony.

The Ninth Circuit has not yet decided whether the new regulations affect the requirement

in the Ninth Circuit that an ALJ must give germane reasons for rejecting lay witness testimony.

Some courts have concluded that the new regulations may dispense with an ALJ’s obligation

specifically to address lay witness testimony, including any obligation to articulate germane

reasons for disregarding lay testimony. See, e.g., Evans v. Comm’r of Soc. Sec., 2023

WL 3570083, at *9 (E.D. Cal. May 19, 2023) (“Under the new regulations regarding nonmedical

statements, the Commissioner is no longer required to articulate ‘germane’ reasons for

discounting a lay witness’s testimony.”). The majority of district courts in this circuit, however,

conclude that the new regulations have not eliminated an ALJ’s obligation to consider and

address lay witness testimony. See, e.g., Christopher M. v. Comm’r, Soc. Sec. Admin., 2023

WL 8827678, at *10 (D. Or. Dec. 21, 2023); Jerald H. v. Comm’r of Soc. Sec., 2023

WL 6533477, at *4 (W.D. Wash. Oct. 6, 2023); Gardner v. Comm’r of Soc. Sec. Admin., 2023

WL 6173220, at *6 (D. Ariz. Sept. 21, 2023); Joseph L. S. v. Kijakazi, 2023 WL 5611408, at *5

(C.D. Cal. Aug. 30, 2023); Sharon W. v. Kijakazi, 2023 WL 246391, at *8 (D. Idaho Jan. 18,

2023).

On the Court’s reading, the new regulations do not eliminate an ALJ’s obligation to

consider and address lay witness testimony. The revised regulations describe how to evaluate

medical opinion testimony. The fact that the regulations state that nonmedical opinion testimony

is not held to the same standard as medical opinion testimony says nothing about the standard to

which nonmedical opinion testimony is held. Thus, the new regulations are not “clearly

irreconcilable” with existing caselaw and are insufficient to overrule binding Ninth Circuit

precedent that an ALJ must comment on lay witness testimony and provide germane reasons to

discount it. See Woods, 32 F.4th at 790 (“[Ninth Circuit] precedent controls unless its reasoning

or theory is clearly irreconcilable with the reasoning or theory of intervening higher authority,

which in this case is the agency’s updated regulations.” (cleaned up)). Further, “[t]he

requirement that an ALJ consider lay witness testimony comes from other regulations,

regulations that remain intact after the 2017 amendment.” Joseph L.S., 2023 WL 5611408, at *5.

(citing 20 C.F.R. §§ 416.913(a), 416.929(a)). The Ninth Circuit’s requirement from the line of

cases described above that an ALJ must provide germane reasons to discount lay witness

testimony finds support in this regulatory requirement, which still remains. See, e.g., Dodrill, 12

F.3d at 918-19 (“Disregard of [lay witness testimony] violates the Secretary’s regulation that he

will consider observations by non-medical sources as to how an impairment affects a claimant’s

ability to work. 20 C.F.R. § 404.1513(e)(2).”7 (quoting Sprague v. Bowen, 812 F.2d 1226, 1232

(9th Cir. 1987)). Thus, the contention “[t]hat an ALJ can disregard or reject relevant lay evidence

for no reason is inconsistent with the Commissioner’s obligation to consider such evidence[] and

the rule [that] the ALJ must provide some rationale in order for the Court to meaningfully

determine whether the ALJ’s conclusions are free of legal error and supported by substantial

evidence.” Gary J.D. v. Comm’r of Soc. Sec., 2023 WL 5346621, at *14 (W.D. Wash. Aug. 21,

2023).

Plaintiff’s mother provided a third party function report in which she echoed Plaintiff’s

own report, stating that Plaintiff has difficulties caring for her son without help, suffers from

chronic pain, anxiety, migraines, hallucinations, lack of sleep, can only sit or stand for short

lengths of time, has to set reminders for medication and medical appointments, can only make

simple meals, helps with laundry but not with most household chores, does not have interact

socially, and does not go out alone. AR 517-20. She also states that Plaintiff does not handle

stress, cannot interact with authority figures, and cannot handle changes in her routine. AR 521-

22. Plaintiff argues that the ALJ erred by neither accepting nor rejecting the lay witness

testimony as represented in the third-party function report.

Plaintiff is correct in that the ALJ erred by neither accepting nor rejecting the lay witness

testimony without comment. This error was harmless, however, because the testimony “does not

describe any limitations not already described by the claimant, and the ALJ’s well-supported

7 The requirement that the Commissioner consider nonmedical evidence in adjudicating

Title II claims is now in 20 C.F.R. § 404.1513(a)(4).

reasons for rejecting the claimant’s testimony apply equally well to the lay witness testimony.”

See Molina, 674 F.3d at 1117.

CONCLUSION

The Court AFFIRMS the Commissioner’s decision that Plaintiff was not disabled.

IT IS SO ORDERED.

DATED this 18th day of March, 2024.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge