Gann v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

JEREMIAH G., Ca se No. 1:23-cv-00851-AR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________________

ARMISTEAD, Magistrate Judge

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

benefits, plaintiff Jeremiah G. (his last name omitted for privacy) challenges the Administrative

Law Judge’s evaluation for failing to identify specific, clear and convincing reasons for

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discounting his subjective symptom testimony and the lay witness testimony. Because the court

concludes that the ALJ did not err, the Commissioner’s decision is affirmed.1

ALJ’S DECISION

Plaintiff applied for Title II Disability Insurance Benefits (DIB) and Title XVI

Supplemental Security Income (SSI) on January 21, 2021, alleging disability beginning on June

11, 2017. (Tr. 64, 79.) His claims were initially denied on March 25, 2021, and again upon

reconsideration on December 8, 2021. (Tr. 77-78, 92-93, 171-76.) Afterwards, plaintiff filed for a

hearing that was held before the ALJ on June 2, 2022. (Tr. 37.)

In denying plaintiff’s applications for DIB and SSI, the ALJ followed the five-step

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

substantial gainful activity since the alleged onset date. (Tr. 16.) At step two, the ALJ determined

that he had the following severe impairments: “complex regional pain syndrome s/p right

femoral fracture” and “right hip impingement syndrome.” (Tr. 16.) At step three, the ALJ

determined that his impairments singly or in combination did not meet or medically equal the

severity of any listed impairment. (Tr. 19.)

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

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

U.S.C. § 636(c).

2 To determine if a claimant is disabled within the meaning of the Social Security Act, the

ALJ must apply a five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4). The process ends when the ALJ can determine that the claimant is or is not

disabled. The burden of proof is on the claimant at steps one through four, and on the agency at

step five. Ford v. Saul, 950 F.3d 1141, 1148-49 (9th Cir. 2020); see also Woods v. Kijakazi, 32

F.4th 785, 788 n.1 (9th Cir. 2022) (summarizing the steps and noting that “[t]he recent [2017]

changes to the Social Security regulations did not affect the familiar ‘five-step sequential

evaluation process.’”).

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

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

work with the following limitations: occasionally climb ladders, ropes, and scaffolds; and

occasionally stoop, kneel, crouch, and crawl. (Tr. 20.)

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

work as a security guard, roustabout, lubrication tech, or warehouse worker. (Tr. 29.)

Considering his RFC, the ALJ found at step five that jobs exist in significant numbers in the

national economy that plaintiff can perform, including such representative occupations as

parking lot cashier, office helper, and hand packager inspector. (Tr. 30.)

STANDARD OF REVIEW

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

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

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

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

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

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

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

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

DISCUSSION

A. Plaintiff’s Symptom Testimony

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

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

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

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

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

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, if the record

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

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

(9th Cir. 2015); 20 C.F.R. § 404.1529. The specific, clear and convincing standard is “the most

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

Garrison, 759 F.3d at 1015; Trevizo, 871 F.3d at 678-79. The “clear and convincing” standard

requires an ALJ to “show [their] work” but, ultimately, the question is not whether the ALJ’s

rationale convinces the court, but whether the ALJ’s rationale “is clear enough that it has the

power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).

In his applications, plaintiff contends that he cannot engage in full-time, competitive

employment because of his physical and mental health conditions caused by a motorcycle

accident on June 11, 2017. (Tr. 299, 303.) Specifically, the accident caused complex regional

pain syndrome (CRPS) of the right femur. (Tr. 303.) Plaintiff reported that his physical pain

affected his mental health, and he saw Angie Cronin, Psy.D., for anxiety, depression, and chronic

pain. (Tr. 454-506.) On appeal, however, plaintiff does not challenge the ALJ’s analysis of his

mental health issues. In his July 2021 function report, plaintiff stated that he cannot sit or stand

for more than 20 to 30 minutes at a time. (Tr. 317.) Plaintiff wrote that his “pain frequently

requires [him] to lay down for several hours in order to cope with it” and makes it “hard to focus

on tasks.” (Tr. 317.) Plaintiff described that his daily activities include doing the dishes,

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watching television, and taking out the trash, so long as it is not too heavy and he can use his

cane. (Tr. 318, 320.) Plaintiff indicated that he relies on a cane, and he has difficulty lifting,

squatting, standing, walking, bending, sitting, kneeling, climbing stairs, completing tasks, and

concentrating. (Tr. 322-23.)

At his hearing, plaintiff testified that he can only sit for 10 minutes before experiencing

pain in his back and right leg. (Tr. 52.) Plaintiff stated that he can stand in one spot for about 10

to 20 minutes, constant pain makes postural activities difficult to perform, and he needs to lie

down two or three times a day. (Tr. 52-54.) Plaintiff testified that his medications cause

significant side effects, such as making him drowsy and dizzy, which makes him embarrassed

and causes him to lose focus, his average pain level is an eight out of 10, and that pain affects his

sleep. (Tr. 44, 47.)

The ALJ discounted plaintiff’s subjective symptom testimony because: (1) plaintiff’s

activities of daily living are inconsistent with his claimed limitations; (2) his treatment history

was inconsistent with claims of debilitating pain; and (3) his medical records show largely

normal objective findings during medical appointments.

1. Activities of Daily Living

An ALJ may reject symptom allegations that are inconsistent with a claimant’s ability to

perform normal activities of daily living (ADLs). See 20 C.F.R. § 404.1529(c)(3)(i). There are

two ways ADLs may support such rejection: (1) the ADLs contravene the claimant’s allegations

of functional limitations; or (2) the ADLs “meet the threshold for transferrable work skills[.]”

Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) ( “Even where those activities suggest some

difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the

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extent that they contradict claims of a totally disabling impairment.” Molina v. Astrue, 674 F.3d

1104, 1113 (9th Cir. 2012).

The ALJ discounted plaintiff’s testimony because his activities of daily living were

inconsistent with his claims of debilitating pain symptoms. (Tr. 26.) The ALJ took issue with

plaintiff’s ability to drive. (Tr. 26.) Specifically, the ALJ explained that the ability to drive safely

“requires the ability to sit, use his upper and lower extremities and pay attention sufficiently to

traverse the road safely.” (Tr. 26.) The ALJ also cited a November 2020 behavioral health

follow-up visit, that stated that plaintiff “has also been staying busy and getting out of the house

more[,]” and “has been going to the gym with a new friend and this has been helpful.” (Tr. 26,

citing Tr. 499.) The ALJ also cited a physical therapy treatment note from May 2021 where

plaintiff reported “being able to work in the yard with a weed eater for four hours in the past two

days.” (Tr. 26, citing Tr. 1624-25.) The ALJ also discussed how at physical therapy in June

2021, plaintiff reported he was able to walk two to three miles shopping at big box stores without

using a cane. (Tr. 26, citing Tr. 1620.) Lastly, the ALJ mentioned that plaintiff stopped

behavioral treatment due to being “busy with his son’s soccer season.” (Tr. 26, citing Tr. 2181.)

Based on those activities, the ALJ determined that his “reported activities of daily living require

physical abilities, which are generally inconsistent with his reported functionality.” (Tr. 26.) The

Court finds that the ALJ’s findings are supported by substantial evidence, are a reasonable

interpretation of the record, and will not be disturbed.

Plaintiff argues that the ALJ erred in relying on his ability to drive because “when he

originally applied, [p]laintiff wrote in his [2021] function report that his license was suspended

and that he did not drive, because he had cramps and spasms that make driving dangerous.” (Pl.

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Br. at 14, citing Tr. 109, 128, 320, 342.) Plaintiff acknowledges that he testified at the hearing in

June 2022 that he drives to the grocery store, but argues this is limited to short trips. (Pl. Br. at

14, Tr. 43.). Plaintiff asserts that his “ability to engage in activities when pain free does not

undermine his testimony, whether driving for short trips to the grocery store, walking for two

miles once in a four-year period, or even using a weed-eater for four hours.” (Pl. Br. at 14.)

Lastly, plaintiff asserts that the ALJ’s reasons for rejecting his subjective symptom testimony

“ignore[s] the ruling regarding RSDS/CRPS.” (Pl. Br. at 14, citing SSR 03-02p.)

The Court is not persuaded by plaintiff’s arguments. Regarding plaintiff’s ability to drive,

the hearing testimony is more recent compared to his function report he filled out over a year

before the hearing in February 2021, and is thus the more persuasive indication of plaintiff’s

driving abilities. Even considering that plaintiff only drove for short trips to the grocery store, as

his testimony reflects, the ALJ’s other reasons for discounting plaintiff are valid. (Tr. 43.) Being

able to walk for miles at a time without a cane, perform yardwork, and be involved in his son’s

soccer season are all inconsistent with the extreme limitations plaintiff attested to at the hearing,

such as being limited to sitting for 10 minutes or walking for 20 minutes.

Plaintiff’s assertion that the ALJ “ignored” SSR 03-02p regarding RSDS/CRPS is

undeveloped. (Pl. Repl. Br at 4.) Plaintiff simply asserts that “transient findings are characteristic

of RSDS/CRPS and cites the ruling as authority, without explanation. (Pl. Repl. Br. at 4.)

Plaintiff contends that his ability to engage in activities when pain free does not undermine his

testimony, and that as recently as April 21, 2022, he was unable to sit longer than 15 minutes or

walk further than one block. (Pl. Repl. Br at 4.) Plaintiff appears to suggest that the ALJ ignored

the longitudinal record. As discussed in greater detail below, the ALJ considered the entire

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record, including his CRPS symptoms. Thus, the court cannot conclude the ALJ erred in

assessing plaintiff’s daily activities.

2. Improvement with Treatment

A claimant’s improvement with treatment is “an important indicator of the intensity and

persistence of . . . symptoms.” 20 C.F.R. §§ 404.1529(c)(3). For example, “[i]mpairments that

can be controlled effectively with medication are not disabling for the purpose of determining

eligibility for SSI benefits.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.

2006). Symptom improvement, however, must be weighed within the context of an “overall

diagnostic picture.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001); see also Lester

v. Chater, 81 F.3d 821, 833 (9th Cir. 1995) (“Occasional symptom-free periods . . . are not

inconsistent with disability.”).

Here, the ALJ relied on reports of pain management and physical therapy treating

plaintiff’s CRPS symptoms. (Tr. 23.) The ALJ cited treatments notes from 2017 to 2021

documenting improvement with treatment. (Tr. 21-27.) In September 2017, three months after

his motorcycle accident, plaintiff reported that his symptoms improved and that he had been off

narcotics for two weeks and was using Aleve. At his six month follow up appointment, he stated

that he continued to improve and the ALJ acknowledged that he had less pain in the left leg but

still had quite a bit of pain in the right thigh at the fracture site that did not appear to be

improving. (Tr. 21, citing Tr. 389.) And in January 2018, the ALJ observed, plaintiff “opted to

undergo surgery to dynamize the nail and place a bone growth simulator,” that “his treatment

provider noted that he was ‘ok to work,’” and that his “February and March 2018 follow up

appointments showed overall improvement and non-antalgic gait without a limp, though he

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reported right leg pain.” (Tr. 21 citing Tr. 393, 395, 753.) The ALJ also discussed how on March

3, 2020, plaintiff “underwent a lumbar sympathetic chain block on the right and on his six-hour

pain diary he said his pain was a zero throughout.” (Tr. 23.) The ALJ also cited many physical

therapy treatment notes from 2020 showing improvement in plaintiff’s pain symptoms. (Tr. 23-

24.) For example, at physical therapy in May 2020, plaintiff reported that “if he stays active he is

fine, but if not active, he gets tired easily. (Tr. 24, citing Tr. 590.) The ALJ acknowledged that

physical therapy treatment notes indicated that he continued to have on and off pain, but overall

“he feels he is having more good days compared to harder days.” (Tr. 24, citing Tr. 479.) The

ALJ addressed that plaintiff was discharged from physical therapy in June 2020. (Tr. 24, citing

Tr. 573-74.)

Given the above, the ALJ’s findings are supported by substantial evidence, and the ALJ

reasonably could conclude that plaintiff’s RSDS/CRPS pain symptoms improved with treatment.

3. Inconsistency with Objective Medical Evidence

In evaluating a claimant’s subjective symptom testimony, an ALJ may consider whether

it is consistent with objective medical evidence. 20 C.F.R. § 404.1529(c)(1)-(3); SSR 16-3p,

available at 2017 WL 5180304, at *7-8. A lack of objective medical evidence, however, may not

form the sole basis for discounting a claimant’s testimony. Redick v. Chater, 157 F.3d 715, 722

(1998); Tammy S. v. Comm’r Soc. Sec. Admin., No. 6:17-cv-01562-HZ, 2018 WL 5924505, at *4

(D. Or. Nov. 10, 2018). But when objective medical evidence is coupled with other permissible

reasons, it may be used to discount a claimant’s testimony. Batson v. Comm’r Soc. Sec. Admin.,

359 F.3d 1190, 1197-98 (9th Cir. 2004); Adaline S.G. v. Comm’r Soc. Sec. Admin., Case No.

6:20-cv-01129-AC, 2021 WL 5316987, at *3 (D. Or. Nov. 15, 2021).

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Here, the ALJ described inconsistencies between plaintiff’s alleged symptoms and the

objective medical evidence. The ALJ initially acknowledged plaintiff’s CRPS diagnosis in

February 2020 after he had a resurgence of pain in his right femur. (Tr. 20-21, citing Tr. 451-52.)

However, the ALJ discussed imaging from March 2020 that showed plaintiff’s right femur

fracture had healed and there were no complications. (Tr. 22, citing Tr. 405.) The ALJ discussed

how examinations regularly showed normal strength and reflexes, and no evidence of nerve root

irritation when he raised his legs. (Tr. 23, citing Tr. 26-27, 405, 446, 448-49, 452.)

Again, plaintiff asserts that “the regulations recognize that the defining character of

RSD/CRPS is the presence of persistent complaints of pain that are out of proportion to the

severity of any underlying medical conditions” and that “transient findings” are characteristic of

RSDS/CRPS. (Pl. Br. at 13, citing SSR 03-02p.) The ALJ discussed the longitudinal findings

showing that the objective medical evidence was inconsistent with plaintiff’s testimony. For

example, the ALJ discussed plaintiff’s physiatrist treatment notes indicating that he did not think

plaintiff’s symptoms were due to CRPS because his “primary pain generator is localized exactly

over the scar from the compound fracture/IM nail insertion site” and “the tissues in this area

show limited mobility.” (Tr. 24, citing Tr. 615.) The ALJ also discussed that after plaintiff was

discharged from physical therapy designed to work on breaking down scar tissue, his muscle

strength had improved, and he had normal gait and station. (Tr. 24, citing Tr. 569, 614.) The ALJ

considered plaintiff’s physical therapy notes that showed by February 2021, he was no longer

presenting with signs of CRPS. (Tr. 26, citing Tr. 1630.)

Contrary to plaintiff’s suggestion, SSR 03-02p requires that the ALJ view the record as a

whole to establish a longitudinal picture of his functioning. SSR 03-02p, available at 2003 WL

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22399117, at *7 (Oct. 20, 2003). The ALJ did so here, explaining how plaintiff’s daily activities,

treatment history, and medical evidence were inconsistent with his allegations. The ALJ’s findings

are supported by substantial evidence and are reasonable interpretation of the record, and will not

be disturbed. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (holding that even if evidence

is susceptible to more than one rational interpretation, ALJ decision must be upheld).

B. Lay Witness Testimony

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

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

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

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

testimony “cannot be disregarded without comment” (emphasis in original). An ALJ may not

reject such testimony without comment and “must give reasons that are germane to each

witness.” Nguyen, 100 F.3d at 1467 (quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.

1993)).

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, 100 F.3d at

1467). 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.

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In responding to plaintiff’s argument that the ALJ failed to consider the testimony of his

fiancé, Rachel Perrotti, 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 regulations 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. § 404.1520c(d). Subsections (a) through (c) lay out the new

standards for evaluating medical opinion evidence. Id. § 404.1520c(a)-(c). In the

Commissioner’s view, lay testimony is a “nonmedical source” and ALJ’s are not required to

articulate how that evidence was considered.

The Court is not persuaded by the Commissioner’s argument. The Ninth Circuit has not

yet decided whether the regulations relating to medical evidence affect an ALJ’s analysis of lay

witness testimony. The majority of district courts in this circuit, however, have concluded that

the new regulations do not eliminate an ALJ’s obligation to consider and address lay witness

testimony. See, e.g., Christopher M. v. Comm’r, Soc. Sec. Admin., Case No. 6:22-cv-01378-SB,

2023 WL 8827678, at *10 (D. Or. Dec. 21, 2023); Jerald H. v. Comm’r of Soc. Sec., Case No.

3:22-cv-05855-GJL, 2023 WL 6533477, at *4 (W.D. Wash. Oct. 6, 2023); Gardner v. Comm’r

of Soc. Sec. Admin., Case No. CV-22-00321-TUC-LCK, 2023 WL 6173220, at *6 (D. Ariz. Sept.

21, 2023); Joseph L. S. v. Kijakazi, Case No. 5:23-cv-00006-BFM, 2023 WL 5611408, at *5

(C.D. Cal. Aug. 30, 2023); Sharon W. v. Kijakazi, Case No. 1:22-cv-00013-DKG, 2023 WL

246391, at *8 (D. Idaho Jan. 18, 2023).

The court agrees with the majority’s view. Although the new regulations do not require

ALJ’s to analyze nonmedical sources using the same criteria as medical sources, those

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regulations did not eliminate the ALJ’s obligation to review and address lay witness testimony.

The new regulations did not overrule binding Ninth Circuit precedent that an ALJ must address

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.” (simplified)). Furthermore, “[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)). 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., Case No. C22-1821-BAT, 2023 WL 5346621, at

*14 (W.D. Wash. Aug. 21, 2023).

As plaintiff argues, the ALJ did not address the lay witness testimony, and therefore,

erred. The court considers whether that error is harmless.

In her report, Perrotti’s statements mirrored plaintiff’s report: plaintiff can’t work because

of pain, could not stand or walk for more than 15 minutes, his pain improved when lying down

and was worsened by walking, his pain makes it difficult for him to concentrate, and that he

spends most days in bed because of his pain. (Tr. 376.) Plaintiff testified that he needs help with

showering and dressing himself, which is like Perrotti’s report that plaintiff depends on others

for assistance with activities of daily living, including getting in and out of the shower and

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dressing. (Tr. 54-55, 376.)

Plaintiff asserts that his fiancé described limitations that exceed the limitations he alleges-

-he contends that he was only able to sit or stand for 20 to 30 minutes whereas Perrotti wrote that

he could not stand or walk for more than 15 minutes. (Pl. Br. at 10, 14, citing Tr. 317, 376.) Yet

at the hearing, plaintiff stated that he can only stand in one spot for about 10 to 20 minutes. (Tr.

52.) Therefore, plaintiff’s more recent allegations are like Perrotti’s report because they both

discussed how some days plaintiff does not get out of bed, he depends on others for most

household chores, and that his medication makes him “groggy” and unable to focus. (Tr. 51, 53,

376.)

The symptoms testified to by Perrotti are largely consistent with plaintiff’s own

testimony. Although the ALJ erred by failing to address the lay witness testimony, as explained

above, the court has determined the ALJ properly discounted that testimony with clear and

convincing reasons supported by substantial evidence. Under Ninth Circuit precedent, those

reasons apply with equal force to discount the lay witness statement from Perrotti in this context.

Molina, 674 F.3d at 1117. Therefore, the ALJ’s error is harmless as it is inconsequential to the

ultimate nondisability determination.

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CONCLUSION

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

action is DISMISSED.

ORDERED on May 28, 2024.

elle /} □□□□

JEFAARMISITEAD

United States Magistrate’ Judge

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