# Hansen v. Commissioner Social Security Administration

> District Court, D. Oregon · March 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10397175

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 18, 2024
- **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/10397175

## How later opinions describe it (automated extraction)

- 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))
- describing physical therapy, anti-inflammatory medication, a transcutaneous electrical nerve stimulation unit, and a lumbosacral corset as conservative treatment
- concluding that the ALJ did not err in rejecting medical opinion that was inconsistent with objective medical evidence and another medical opinion of record

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397175. Public record. Not legal advice.