Latham v. O'Malley

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2 U.S. F DIL ISE TD R I IN C TT H CE O URT

EASTERN DISTRICT OF WASHINGTON

Sep 13, 2024

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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RYAN L.,

11 No: 4:22-cv-05156-LRS

Plaintiff,

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v. ORDER AFFIRMING THE

13 COMMISSIONER’S DECISION

MARTIN O’MALLEY,

14 COMMISSIONER OF SOCIAL

SECURITY,1

15

16 Defendant.

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1 Martin O’Malley became the Commissioner of Social Security on December 20,

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2023. Pursuant to Rule 25(d) of the Rules of Civil Procedure, Martin O’Malley is

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substituted for Kilolo Kijakazi as the Defendant in this suit.

1 BEFORE THE COURT are the parties’ briefs. ECF Nos. 12, 18. This

2 matter was submitted for consideration without oral argument. Plaintiff is

3 represented by attorney Chad Hatfield. Defendant is represented by Special

4 Assistant United States Attorney Thomas Chandler. The Court, having reviewed the

5 administrative record and the parties’ briefing, is fully informed. For the reasons

6 discussed below, Plaintiff’s brief, ECF No. 12, is denied and Defendant’s brief, ECF

7 No. 18, is granted.

8 JURISDICTION

9 Plaintiff Ryan L.3 (Plaintiff), filed for disability insurance benefits (DIB) on

10 April 6, 2019, alleging an onset date of May 8, 2018. Tr. 221-24. Benefits were

11 denied initially, Tr. 115-17, and upon reconsideration, Tr. 119-21. Plaintiff

12 appeared at a hearing before an administrative law judge (ALJ) on July 18, 2022.

13 Tr. 44-76. On August 12, 2022, the ALJ issued an unfavorable decision, Tr. 13-36.

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2 Plaintiff’s brief is labeled as a Motion for Summary Judgment. ECF No. 12. The

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supplemental rules for Social Security actions under 42 U.S.C. § 405(g) went into

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effect on December 1, 2022; Rule 5 and Rule 6 state the actions are presented as

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briefs rather than motions. Fed. R. Civ. P. Supp. Soc. Sec. R. 5, 6.

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3 The court identifies a plaintiff in a social security case only by the first name and

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last initial in order to protect privacy. See Local Civil Rule 5.2(c).

1 The Appeals Council denied review on October 4, 2022. Tr. 1-6. The matter is now

2 before this Court pursuant to 42 U.S.C. § 405(g).

3 BACKGROUND

4 The facts of the case are set forth in the administrative hearings and

5 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and

6 are therefore only summarized here.

7 Plaintiff was born in 1985 and 32 years old on the alleged onset date. Tr. 30.

8 He graduated from high school and attended some college. Tr. 51. He served in the

9 Marines from January 2004 until August 2007. Tr. 50-51. He last worked for an

10 auto dealer as a parts clerk in the service department. Tr. 49. He used to have

11 seizures once or twice a month until May 2019 when he stopped drinking. Tr. 51-

12 52. In May 2018, he had a seizure and fell off a ladder. At that point his memory

13 “got really bad.” Tr. 52. It would take a couple of days to recover from a seizure.

14 Tr. 53. He continues to have episodes of “spacing out” or “blacking out” three to

15 four times a day. Tr. 53-55. He has problems with his memory, understanding, and

16 communicating, as well as problems with his vision. Tr. 55, 60.

17 STANDARD OF REVIEW

18 A district court’s review of a final decision of the Commissioner of Social

19 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is

20 limited; the Commissioner’s decision will be disturbed “only if it is not supported by

21 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158

1 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable

2 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and

3 citation omitted). Stated differently, substantial evidence equates to “more than a

4 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted).

5 In determining whether the standard has been satisfied, a reviewing court must

6 consider the entire record as a whole rather than searching for supporting evidence in

7 isolation. Id.

8 In reviewing a denial of benefits, a district court may not substitute its

9 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156

10 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one

11 rational interpretation, [the court] must uphold the ALJ’s findings if they are

12 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674

13 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s

14 decision on account of an error that is harmless.” Id. An error is harmless “where it

15 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115

16 (quotation and citation omitted). The party appealing the ALJ’s decision generally

17 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S.

18 396, 409-10 (2009).

19 FIVE-STEP EVALUATION PROCESS

20 A claimant must satisfy two conditions to be considered “disabled” within the

21 meaning of the Social Security Act. First, the claimant must be “unable to engage in

1 any substantial gainful activity by reason of any medically determinable physical or

2 mental impairment which can be expected to result in death or which has lasted or

3 can be expected to last for a continuous period of not less than twelve months.” 42

4 U.S.C. §§ 423(d)(1)(A). Second, the claimant’s impairment must be “of such

5 severity that he is not only unable to do his previous work[,] but cannot, considering

6 his age, education, and work experience, engage in any other kind of substantial

7 gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).

8 The Commissioner has established a five-step sequential analysis to determine

9 whether a claimant satisfies the above criteria. See 20 C.F.R. § 404.1520(a)(4)(i)-

10 (v). At step one, the Commissioner considers the claimant’s work activity. 20

11 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in “substantial gainful

12 activity,” the Commissioner must find that the claimant is not disabled. 20 C.F.R. §

13 404.1520(b).

14 If the claimant is not engaged in substantial gainful activity, the analysis

15 proceeds to step two. At this step, the Commissioner considers the severity of the

16 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers from

17 “any impairment or combination of impairments which significantly limits [his or

18 her] physical or mental ability to do basic work activities,” the analysis proceeds to

19 step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment does not satisfy

20 this severity threshold, however, the Commissioner must find that the claimant is not

21 disabled. 20 C.F.R. § 404.1520(c).

1 At step three, the Commissioner compares the claimant’s impairment to

2 severe impairments recognized by the Commissioner to be so severe as to preclude a

3 person from engaging in substantial gainful activity. 20 C.F.R. §

4 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the

5 enumerated impairments, the Commissioner must find the claimant disabled and

6 award benefits. 20 C.F.R. § 404.1520(d).

7 If the severity of the claimant’s impairment does not meet or exceed the

8 severity of the enumerated impairments, the Commissioner must assess the

9 claimant’s “residual functional capacity.” Residual functional capacity (RFC),

10 defined generally as the claimant’s ability to perform physical and mental work

11 activities on a sustained basis despite his or her limitations, 20 C.F.R. §

12 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis.

13 At step four, the Commissioner considers whether, in view of the claimant’s

14 RFC, the claimant is capable of performing work that he or she has performed in the

15 past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is capable

16 of performing past relevant work, the Commissioner must find that the claimant is

17 not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of performing

18 such work, the analysis proceeds to step five.

19 At step five, the Commissioner should conclude whether, in view of the

20 claimant’s RFC, the claimant is capable of performing other work in the national

21 economy. 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the

1 Commissioner must also consider vocational factors such as the claimant’s age,

2 education, and past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant

3 is capable of adjusting to other work, the Commissioner must find that the claimant

4 is not disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of

5 adjusting to other work, analysis concludes with a finding that the claimant is

6 disabled and is therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1).

7 The claimant bears the burden of proof at steps one through four above.

8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to

9 step five, the burden shifts to the Commiss0ioner to establish that (1) the claimant is

10 capable of performing other work; and (2) such work “exists in significant numbers

11 in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d

12 386, 389 (9th Cir. 2012).

13 ALJ’S FINDINGS

14 At step one, the ALJ found Plaintiff did not engage in substantial gainful

15 activity May 8, 2018, the alleged onset date. Tr. 18. At step two, the ALJ found that

16 Plaintiff has the following severe impairments: alcohol use disorder, chronic liver

17 disease, seizure disorder, visual disturbance, traumatic brain injury (TBI) and

18 neurocognitive disorder. Tr. 18. At step three, the ALJ found that Plaintiff does not

19 have an impairment or combination of impairments that meets or medically equals

20 the severity of one of the listed impairments. Tr. 20.

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1 The ALJ then found that Plaintiff has the residual functional capacity to

2 perform light work with the following additional limitations:

3 The claimant must avoid climbing of ladders, ropes, or scaffolds,

driving a motor vehicle as part of his job duties, and exposure to

4 workplace hazards such as unprotected heights and dangerous moving

machinery. The claimant is limited to frequent near and far visual

5 acuity. The claimant can perform and carry out simple, routine, and

repetitive tasks and use occasional routine judgment, defined as being

6 able to make simple work-related decisions, in a predictable work

environment with only occasional simple workplace changes, no

7 production or assembly line pace (non-worker controlled pace), and

no more than occasional interaction with coworkers, supervisors, and

8 the public.

9 Tr. 22.

10 At step four, the ALJ found that Plaintiff is unable to perform any past

11 relevant work. Tr. 29. After considering Plaintiff’s age, education, work

12 experience, residual functional capacity, and the testimony of a vocational expert,

13 the ALJ found there are jobs that exist in significant numbers in the national

14 economy that Plaintiff can perform, such as housekeeping cleaner, marker, and

15 production assembler. Tr. 30-31. Thus, the ALJ concluded that Plaintiff has not

16 been under a disability, as defined in the Social Security Act, from May 8, 2018,

17 through the date of the decision. Tr. 32.

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1 ISSUES

2 Plaintiff seeks judicial review of the Commissioner’s final decision denying

3 disability income benefits under Title II of the Social Security Act. ECF No. 12.

4 Plaintiff raises the following issues for review:

5 1. Whether the ALJ properly considered the Listings;

6 2. Whether the ALJ properly considered the lay witness statement;

7 3. Whether the ALJ properly considered Plaintiff’s symptom testimony; and

8 4. Whether the ALJ made a legally sufficient step five finding.

9 ECF No. 12 at 5.

10 DISCUSSION

11 A. Listing 12.02

12 Plaintiff contends the ALJ erred in evaluating Listing 12.02 for

13 neurocognitive disorders. ECF No. 12 at 8-12. At step three of the evaluation

14 process, the ALJ must determine whether a claimant has an impairment or

15 combination of impairments that meets or equals an impairment contained in the

16 listings. See 20 C.F.R. § 404.1520(d). The listings describe “each of the major

17 body systems impairments [considered] to be severe enough to prevent an

18 individual from doing any gainful activity, regardless of his or her age, education,

19 or work experience.” 20 C.F.R. § 404.1525. An impairment “meets” a listing if it

20 meets all of the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530

21 (1990); Tackett, 180 F.3d at 1098. An impairment that manifests only some of the

1 criteria, no matter how severely, does not qualify. Sullivan, 493 U.S. at 530;

2 Tackett, 180 F.3d at 1099.

3 An unlisted impairment or combination of impairments “equals” a listed

4 impairment if medical findings equal in severity to all of the criteria for the one most

5 similar listed impairment are present. Sullivan, 493 U.S. at 531; see 20 C.F.R. §

6 404.1526(b). “Medical equivalence must be based on medical findings,” and “[a]

7 generalized assertion of functional problems is not enough to establish disability at

8 step three.” Tackett, 180 F.3d at 1099. An unlisted impairment or combination of

9 impairments is equivalent to a listed impairment if medical findings are present

10 equal in severity to all of the criteria for the one most similar listed impairment.

11 Sullivan, 493 U.S. at 531; see 20 C.F.R. § 404.1526(b). The claimant bears the

12 burden of establishing an impairment (or combination of impairments) meets or

13 equals the criteria of a listed impairment. Burch v. Barnhart, 400 F.3d 676, 683 (9th

14 Cir. 2005).

15 The ALJ found that Plaintiff’s conditions do not meet or equal Listing 12.02.

16 In order to satisfy this listing, a claimant must meet the criteria of paragraph A, and

17 paragraph B or C.4 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02. The ALJ did not

18 specifically discuss the criteria of paragraph A, suggesting there is no dispute that

19 the record contains medical documentation of a significant cognitive decline in one

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1 or more of the following areas: complex attention, executive function, learning

2 and memory, language, perceptual-motor, or social cognition. 20 C.F.R. Pt. 404,

3 Subpt. P, App. 1, § 12.00A.

4 The ALJ evaluated the criteria of paragraph B, noting that to satisfy the B

5 criteria, mental impairments must result in one extreme limitation or two marked

6 limitations in four broad areas of functioning: (1) understanding, remembering, or

7 applying information; (2) interacting with others; (3) concentrating, persisting, or

8 maintaining pace; and (4) adapting or managing oneself. Tr. 21; 20 C.F.R. Pt. 404,

9 Subpt. P, App. 1, § 12.02B. An “extreme” limitation means an inability to

10 function independently, appropriately, or effectively, and on a sustained basis. A

11 “marked” limitation means the ability to function independently, appropriately, or

12 effectively, and on a sustained basis is seriously limited. 20 C.F.R. Pt. 404, Subpt.

13 P, App. 1, § 12.00F2. The ALJ found that Plaintiff’s mental impairments do not

14 cause at least two “marked” limitations or one “extreme” limitation, so the

15 paragraph B criteria are not satisfied. Tr. 22.

16 Plaintiff argues that the ALJ erred in evaluating his functioning in the

17 paragraph B category of understanding, remembering, or applying information.

18 ECF No. 12 at 8-12. The ALJ found that Plaintiff has a “moderate” limitation in that

19 area, meaning that Plaintiff’s ability to function independently, appropriately, or

20 effectively, and on a sustained basis in this area is fair. 20 C.F.R. Pt. 404, Subpt. P,

21 App. 1, § 12.00F2. In support, the ALJ noted Plaintiff’s own report that he can

1 prepare meals, complete household chores, remember to go to doctor’s appointments

2 and take medications, shop in stores, manage finances, play video games, read,

3 follow instructions, and watch television. Tr. 21 (citing Tr. 286-96, 778-91, 1031-

4 36; see Tr. 55). The ALJ also noted findings from providers showing Plaintiff has a

5 logical, goal directed thought process, was able to follow instructions from

6 healthcare providers, comply with treatment, and respond to questions from medical

7 providers. Tr. 21 (citing Tr. 351-53, 408-10, 420-21, 481, 480-82, 726, 782-86, 869-

8 1030, 1032-35). These records reasonably support the ALJ’s conclusion that

9 Plaintiff has a moderate limitation in the area of understanding, remembering, or

10 applying information, such that Plaintiff’s ability to ability to function

11 independently, appropriately, or effectively, and on a sustained basis in this area is

12 fair.

13 Plaintiff cites clinical findings from a July 2019 neuropsychological

14 evaluation by Jameson Lantz, Ph.D., and argues that they correspond to a finding of

15 an “extreme” limitation in the ability to understand, remember, or apply information.

16 ECF No. 12 at 12; Tr. 781-88. The ALJ considered Dr. Lantz’s assessment and

17 noted the below average to borderline scores on a battery of assessment testing. Tr.

18 26. However, the ALJ also noted Dr. Lantz found numerous inconsistencies in the

19 results, information from intake, other assessments, and Plaintiff’s reported history.

20 Tr. 26. In particular, the ALJ noted performance significantly varied regarding

21 attention and concentration, which Dr. Lantz indicated created a question as to

1 whether the test results accurately depicted Plaintiff’s abilities, or whether they

2 could be attributed to an attention deficit, mood instability, substance use, poor

3 effort, or some combination of factors. Tr. 26 (citing Tr. 783-84).

4 Plaintiff asserts that the ALJ “attempts to cast doubt on the veracity of the

5 neuropsychological testing,” ECF No. 12 at 11, yet it was Dr. Lantz who noted,

6 “variable effort,” “poor effort,” “results obviously were inconsistent with

7 information gleaned from clinical intake,” “poor effort was suspected,” “additional

8 evidence of inconsistencies,” and MMPI-II testing resulted in “classic ‘fake bad’

9 configuration.” Tr. 782-84. As to attention and concentration, Dr. Lantz stated,

10 “[s]uffice it to say that this examinee’s attention and concentration performances

11 varied rather significantly. Such variabilities gave rise to the potential for an

12 attention and concentration confound, which would be secondary to an attention

13 deficit, mood instability, substances, poor effort, or some combination of such

14 factors.” Tr. 783. Thus, it was Dr. Lantz who questioned whether testing was an

15 accurate reflection of Plaintiff’s ability and the ALJ reasonably considered his

16 statements in evaluating the contents of his report.

17 Plaintiff also cites raw data regarding memory scores from Dr. Lantz’s report

18 and conclusively asserts that, “[t]hese scores are at least three standard deviations

19 below the mean, corresponding to an extreme limitation in the paragraph “B” criteria

20 to understand, remember, or apply information and thus meeting the listing.” ECF

21 No. 12 at 11-12. Plaintiff’s argument fails for several reasons. First, Plaintiff has

1 identified no basis to conclude that the scores referenced support the conclusion that

2 “three standard deviations below the mean” corresponds to an extreme limitation

3 within the meaning Listing 12.02.5 Second, Dr. Lantz considered the results of

4 memory testing and concluded that, “[t]hese results obviously were inconsistent with

5 information gleaned from clinical intake.” Tr. 783. Third, Plaintiff does not address

6 his actual functioning in the area of understanding, remembering, and applying

7 information which was cited by the ALJ in support of the step three finding. Tr. 21.

8 The ALJ’s citation to activities such as attending appointments, following

9 instructions, playing video games, and other activities was reasonably considered in

10 determining that Plaintiff does not have an “extreme” limitation making him unable

11 to understand, remember, or apply information. The ALJ’s finding regarding Listing

12 12.02 is supported by substantial evidence.

13 Plaintiff further contends the ALJ erred by stating that “there is no mention of

14 any significant learning barriers or issues with cognition or memory” in assessing a

15 moderate limitation. Tr. 21; ECF No. 12 at 20. Defendant concedes the ALJ

16 misstated the record in this regard, but notes that the ALJ also found Plaintiff’s

17 severe impairments include traumatic brain injury and neurocognitive disorder. ECF

18 No. 18 at 20. Additionally, the ALJ noted later in the decision that Plaintiff

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20 5 Plaintiff cites 20 C.F.R. § 404.926a which describes how functional equivalence

21 for children is evaluated and is not applicable in this case. ECF No. 12 at 12.

1 “received below average to borderline scores on a battery of assessment testing at his

2 psychological consultative examination.” Tr. 26. Thus, it is apparent from the

3 decision that the ALJ acknowledged limitations regarding cognition and memory,

4 notwithstanding the misstatement at step three. “Even when part of an ALJ's five-

5 step analysis is not linguistically completely clear or exhaustively complete, or

6 precisely factually accurate, some errors are legally harmless, such as errors which

7 do not affect the ultimate result of the analysis.” Carmickle v. Comm’r, Soc. Sec.

8 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citing Parra v. Astrue, 481 F.3d 742,

9 747 (9th Cir.2007); Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir.1990); Booz v.

10 Sec’y of Health and Human Servs., 734 F.2d 1378, 1380 (9th Cir.1984)). Here, the

11 ALJ’s statement is clearly contradicted by other findings in the decision, and this

12 misstatement does not change the outcome of the step three finding or the sequential

13 evaluation overall.

14 Lastly, Plaintiff argues in passing that “remand is required for elicitation of

15 medical expert testimony regarding to determine [sic] whether Mr. Latham meets or

16 equals a Listing.” ECF No. 12 at 12. The ALJ found that no acceptable medical

17 source concluded that Plaintiff has an impairment or combination of impairments

18 that meets or equals the criteria of any listed impairment. Tr. 20. It is Plaintiff’s

19 burden to establish that an impairment or combination of impairments meets or

20 equals the criteria of a listed impairment. Burch, 400 F.3d at 683. Plaintiff has cited

21 no authority indicating that the ALJ erred by not calling a medical expert in this

1 case. The Court concludes the ALJ’s step three finding is legally sufficient and

2 based on substantial evidence in the record.

3 B. Symptom Testimony

4 Plaintiff contends the ALJ failed to properly consider his subjective

5 complaints. ECF No. 12 at 15-17. An ALJ engages in a two-step analysis to

6 determine whether a claimant’s testimony regarding subjective pain or symptoms is

7 credible. “First, the ALJ must determine whether there is objective medical

8 evidence of an underlying impairment which could reasonably be expected to

9 produce the pain or other symptoms alleged.” Molina, 674 F.3d at 1112 (internal

10 quotation marks omitted). “The claimant is not required to show that her

11 impairment could reasonably be expected to cause the severity of the symptom she

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

13 the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal

14 quotation marks omitted).

15

16 6 Plaintiff cites SSR 17-2p, which discusses equivalence. ECF No. 12 at 12. The

17 Ruling provides that if an ALJ believes that the evidence does not reasonably

18 support a finding that the individual’s impairment medically equals a listed

19 impairment, the ALJ is not required to obtain testimony from a medical expert to

20 make the step three finding. Social Security Ruling (SSR) 17-2P, 2017 WL

21 3928306, at *4 (effective March 27, 2017).

1 Second, “[i]f the claimant meets the first test and there is no evidence of

2 malingering, the ALJ can only reject the claimant’s testimony about the severity of

3 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the

4 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal

5 citations and quotations omitted). “General findings are insufficient; rather, the ALJ

6 must identify what testimony is not credible and what evidence undermines the

7 claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir.

8 1995); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ

9 must make a credibility determination with findings sufficiently specific to permit

10 the court to conclude that the ALJ did not arbitrarily discredit claimant’s

11 testimony.”). “The clear and convincing [evidence] standard is the most demanding

12 required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir.

13 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir.

14 2002)).

15 Factors to be considered in evaluating the intensity, persistence, and limiting

16 effects of a claimant’s symptoms include: 1) daily activities; 2) the location,

17 duration, frequency, and intensity of pain or other symptoms; 3) factors that

18 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and side

19 effects of any medication an individual takes or has taken to alleviate pain or other

20 symptoms; 5) treatment, other than medication, an individual receives or has

21 received for relief of pain or other symptoms; 6) any measures other than treatment

1 an individual uses or has used to relieve pain or other symptoms; and 7) any other

2 factors concerning an individual’s functional limitations and restrictions due to pain

3 or other symptoms. SSR 16-3p, 2017 WL 5180304, at *9 (effective October 25,

4 2017); 20 C.F.R. § 404.1529(c). The ALJ is instructed to “consider all of the

5 evidence in an individual’s record,” to “determine how symptoms limit ability to

6 perform work-related activities.” SSR 16-3p, at *2.

7 First, the ALJ found the medical evidence indicates a functional capacity

8 higher than alleged. Tr. 24-26. An ALJ may not discredit a claimant’s pain

9 testimony and deny benefits solely because the degree of pain alleged is not

10 supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857

11 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v.

12 Bowen, 885 F.2d 597, 601 (9th Cir. 1989). However, the medical evidence is a

13 relevant factor in determining the severity of a claimant’s pain and its disabling

14 effects. Rollins, 261 F.3d at 857. Minimal objective evidence is a factor which may

15 be relied upon in discrediting a claimant’s testimony, although it may not be the only

16 factor. See Burch, 400 F.3d at 680.

17 The ALJ discussed the physical diagnostic studies, imaging, and exam

18 findings which showed no signs of chronic pain and were essentially unremarkable,

19 including MRI and CT imaging of the brain, other than signs of liver disease and

20 mild pulmonary hyper-expansion. Tr. 24-25 (citing e.g., Tr. 347, 364, 403-04, 413,

21

1 418, 424, 436, 817, 996, 1043-51, etc.). The ALJ’s findings regarding his physical

2 condition are not challenged by Plaintiff and are supported by substantial evidence.

3 The ALJ also discussed the mental health record, noting diagnoses of mood

4 disorder, alcohol-induced mild neurocognitive disorder, possible Wernicke’s

5 encephalopathy, and unspecified depressive disorder. Tr. 25. The ALJ observed

6 that mental status exam findings and psychiatric notations in the medical record

7 were “rather benign and unexceptional.” Tr. 25 (citing Tr. 352, 438, 632, 643-44,

8 655-56, 666, 704, 726, 733, 750, 782-86, 897-98, 1009, 1010, 1032-35). As

9 discussed supra, the ALJ noted Dr. Lontz’s psychological exam findings identified

10 significant inconsistencies regarding attention and concentration which could be

11 attributed to an attention deficit, mood instability, substance use, poor effort, or

12 some combination of factors. Tr. 26, 783. The ALJ’s findings are supported by

13 substantial evidence.

14 Plaintiff argues that the ALJ did not consider the “waxing and waning” of his

15 symptoms and suggests that his treatment record “would not be expected to show

16 remarkable findings” in various mental health categories. ECF No. 12 at 16.

17 However, although the ALJ found the medical findings suggest a functional capacity

18 significantly higher than alleged, the ALJ considered Plaintiff’s conditions as a

19 whole and addressed “any fluctuation of the claimant’s symptoms” and other factors

20 in the RFC finding. Tr. 26. Further, Plaintiffs simple assertion that the ALJ

21 “rejected” Plaintiff’s mental health symptoms based on waxing and waning

1 symptoms is not demonstrated with references to the record or the ALJ’s decision.

2 ECF No. 12 at 16. Plaintiff argues for another interpretation of the evidence but

3 does not establish that the ALJ’s analysis contains errors of fact or law. The ALJ,

4 not this court, is responsible for reviewing the evidence and resolving conflicts or

5 ambiguities. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989); see also

6 Richardson v. Perales, 402 U.S. 389, 400 (1971).

7 Second, the ALJ found that Plaintiff’s routine and conservative treatment is

8 not consistent with his allegations regarding the severity and limiting effects of his

9 symptoms. Tr. 26. Claims about disabling pain are undermined by favorable

10 response to conservative treatment. Tommasetti, 533 F.3d at 1039-1040; see also

11 Parra, 481 F.3d at 750–51 (finding “evidence of ‘conservative treatment’ is

12 sufficient to discount a claimant’s testimony regarding severity of an impairment”);

13 see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting subjective

14 pain complaints where petitioner’s “claim that she experienced pain approaching the

15 highest level imaginable was inconsistent with the ‘minimal, conservative treatment’

16 that she received”). The ALJ discussed Plaintiff’s physical treatment, noting that it

17 was conservative and relatively effective in controlling symptoms, especially his

18 seizures which stopped once he quit alcohol. Tr. 25 (citing Tr. 779, 1047). The ALJ

19 noted that Plaintiff’s mental health treatment was routine and conservative and that

20 his symptoms were generally well controlled on medication. Tr. 26. Once he quit

21 drinking and his seizures were controlled, Plaintiff reported that he felt his memory

1 was returning. Tr. 26 (citing 644, 733; 1043). Plaintiff does not challenge these

2 findings. This is a clear and convincing reason supported by substantial evidence.

3 Third, the ALJ found that Plaintiff’s activities of daily living are not

4 consistent with disabling symptoms and limitations. Tr. 27. It is reasonable for an

5 ALJ to consider a claimant’s activities which undermine claims of totally disabling

6 pain in assessing a claimant’s symptom complaints. See Rollins, 261 F.3d at 857.

7 However, it is well-established that a claimant need not “vegetate in a dark room” in

8 order to be deemed eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th

9 Cir. 1987). Notwithstanding, if a claimant is able to spend a substantial part of his

10 day engaged in pursuits involving the performance of physical functions that are

11 transferable to a work setting, a specific finding as to this fact may be sufficient to

12 discredit an allegation of disabling excess pain. Fair, 885 F.2d at 603. Furthermore,

13 “[e]ven where [Plaintiff’s daily] activities suggest some difficulty functioning, they

14 may be grounds for discrediting the claimant’s testimony to the extent that they

15 contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113.

16 The ALJ observed that Plaintiff reported he can, for example, care for his

17 children, complete household chores and errands, manage finances, spend time with

18 friends and family, play video games, read, and follow instructions. Tr. 27 (citing

19 286-96, 778-91, 1031-36; see Tr. 55. The ALJ found these activities are inconsistent

20 with the level of limitation alleged. Tr. 27; see Tr. 23. Plaintiff argues the ALJ

21 failed to identify any activities inconsistent with his allegations and did not explain

1 how his “modest” activities contradicted his testimony. ECF No. 12 at 16. It is true

2 that the ALJ is required to make “specific findings” regarding Plaintiff’s daily

3 activities involve skills that could be transferred to the workplace. Burch, 400 F.3d

4 at 681. Even assuming that the ALJ failed to do so here, any error was harmless

5 because the ALJ provided other valid reasons to discount Plaintiff’s testimony. See

6 Molina, 674 F.3d at 1115.

7 Lastly, Plaintiff argues the ALJ “held the claimant to an impermissibly high

8 legal standard” by stating three times that Plaintiff’s physical and mental

9 impairments “would not prevent performance of all work-related activities.” ECF

10 No. 12 at 15 (citing Tr. 24, 25, 26). Plaintiff observes that “this is not the standard

11 for disability.” ECF No. 12 at 15 (citing SSR 96-8p). Indeed, the ALJ’s discussion

12 of the evidence begins with a recitation of the correct legal standard, including

13 reference to Social Security Ruling 96-8p, 1996 WL 362207 (effective July 2, 1996),

14 and notes that the RFC finding “reflects the most the claimant can do on a sustained

15 basis.” Tr. 22. Plaintiff does not explain how the ALJ’s statements are inaccurate or

16 reflect an improper “standard” of evaluating Plaintiff’s symptom statements or the

17 RFC. The ALJ’s determination that Plaintiff’s impairments do not prevent him from

18 performing all work-related activities means exactly that – which is consistent with

19 the ALJ’s determination that Plaintiff is capable of performing activities set forth in

20 the RFC finding. Tr. 22. The Court concludes no reasonable reading of the decision

21

1 leads to the conclusion that the ALJ applied an improper standard for disability in

2 evaluating Plaintiff’s symptom statements.

3 C. Lay Witness Statement

4 Plaintiff contends the ALJ improperly rejected the lay witness statement of his

5 wife, Amber L. ECF No. 12 at 12-14. The regulations indicate that ALJs will

6 consider evidence from nonmedical sources when evaluating a claim of disability.

7 See, e.g., 20 C.F.R. §§ 404.1529(c)(1), 404.1545(a)(3). An ALJ may not reject

8 “significant probative evidence” without explanation. Vincent ex rel. Vincent v.

9 Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). However, under the revised

10 regulations, ALJs are “not required to articulate” how they evaluate evidence from

11 nonmedical sources using the same factors applicable to medical opinion evidence.

12 20 C.F.R. § 404.1520c(d). The Ninth Circuit has not yet clarified whether an ALJ is

13 still required to provide “germane reasons” for discounting lay witness testimony.

14 See Wilson v. O’Malley, No. 23-35463, 2024 WL 2103268, at *2 (9th Cir. May 10,

15 2024). It has, however, continued to apply the germane reasons standard. See, e.g.,

16 MacArthur v. Kijakazi, No. 23-35050, 2023 WL 8519119, at *2 (9th Cir. Dec. 8,

17 2023) (“An ALJ may discount lay witness opinion evidence by providing reasons

18 germane to each witness for doing so.”) (citing Molina, 674 F.3d at 1111) (internal

19 quotations omitted); Eichenberger v. Kijakazi, No. 22-35937, 2023 WL 5928483, at

20 *2 (9th Cir. Sept. 12, 2023) (ALJ’s clear and convincing reasons for rejecting the

21 claimant’s testimony sufficed as germane reasons for rejecting lay testimony);

1 Alexander v. Kijakazi, No. 22-35737, 2023 WL 4490340, at *2 (9th Cir. July 12,

2 2023) (ALJ’s findings that lay witness statements conflicted with the medical

3 evidence and were inconsistent with the claimant's activities satisfied the “germane

4 reasons” standard).

5 The ALJ found that although Amber L.’s statements are consistent with

6 Plaintiff’s daily activities and allegations, they “simply cannot outweigh” the

7 medical evidence regarding the extent of Plaintiff’s functional limitations. Tr. 29.

8 The ALJ observed that lay witness statements are “based upon casual observation,

9 rather than objective medical examination and testing,” do not provide a function-

10 by-function assessment of a claimant’s abilities, and are not given by an acceptable

11 medical source. Tr. 29. These are not germane reasons for rejecting the lay witness

12 statement because an ALJ is directed to consider evidence from nonmedical sources.

13 20 C.F.R. §§ 404.1529(c)(1), 404.1545(a)(3).

14 The ALJ also found that “there is likely some degree of bias due to the

15 nature of their relationship [as husband and wife].” Tr. 29. A witness’ personal

16 relationship with a claimant is not a valid reason to discount the witness’

17 observations. Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017); Valentine

18 v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.2009) (noting that

19 “regardless of whether they are interested parties, ‘friends and family members in a

20 position to observe a claimant’s symptoms and daily activities are competent to

21 testify as to [his or] her condition’” (citation omitted)); Smolen v. Chater, 80 F.3d

1 1273, 1289 (9th Cir. 1996) (“The fact that a lay witness is a family member cannot

2 be a ground for rejecting his or her testimony. To the contrary, testimony from lay

3 witnesses who see the claimant every day is of particular value; such lay witnesses

4 will often be family members.”) (citation omitted). The ALJ’s reference to bias,

5 without more, is an improper basis to reject the lay witness statement.

6 Nevertheless, the ALJ found that Amber L.’s statement is consistent with

7 Plaintiff’s symptom statements. Tr. 27. Since the ALJ provided clear and

8 convincing reason supported by substantial evidence for discounting Plaintiff’s

9 symptom claims, it follows that any error in rejecting Amber L.’s statement is

10 harmless. Molina, 674 F.3d at 1122 (“Although the ALJ erred in failing to give

11 germane reasons for rejecting the lay witness testimony, such error was harmless

12 given that the lay testimony described the same limitations as Molina’s own

13 testimony, and the ALJ’s reasons for rejecting Molina’s testimony apply with equal

14 force to the lay testimony.”); Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d

15 685, 694 (9th Cir. 2009) (finding harmless error with respect to non-germane reason

16 because “the ALJ provided clear and convincing reasons for rejecting [the

17 claimant’s] own subjective complaints, and because [the lay witness’s] testimony

18 was similar to such complaints, it follows that the ALJ also gave germane reasons

19 for rejecting [the lay witness’s] testimony”). Thus, any error in evaluating the lay

20 witness statement is harmless.

21

1 D. Step Five

2 Plaintiff argues the ALJ erred at step five because the vocational expert’s

3 opinion that plaintiff can return to past relevant work was based on an incomplete

4 hypothetical. ECF No. 12 at 17-18. The ALJ’s hypothetical must be based on

5 medical assumptions supported by substantial evidence in the record which reflect

6 all of a claimant’s limitations. Osenbrook v. Apfel, 240 F.3d 1157, 1165 (9th Cir.

7 2001). The hypothetical should be “accurate, detailed, and supported by the medical

8 record.” Tackett, 180 F.3d at 1101. The ALJ is not bound to accept as trued the

9 restrictions presented in a hypothetical question propounded by a claimant’s counsel.

10 Osenbrook, 240 F.3d at 1164; Magallanes, 881 F.2d at 756-57; Martinez v. Heckler,

11 807 F.2d 771, 773 (9th Cir. 1986). The ALJ is free to accept or reject these

12 restrictions as long as they are supported by substantial evidence, even when there is

13 conflicting medical evidence. Magallanes, 881 F.2d at id.

14 Plaintiff’s argument assumes that the ALJ erred in evaluating his symptom

15 statements and the lay witness statement. ECF No. 12 at 17-18. Plaintiff alleges the

16 ALJ “improperly rejected limitations” of being off task and unproductive more than

17 10% of the work week, absent more than six time per year, unscheduled tardiness,

18 the need for redirection or close supervision, or responding to redirection by getting

19 frustrated and walking away from the workstation.” ECF No. 12 at 17-18.

20 However, Plaintiff has not shown that any these limitations were established in the

21 record or improperly rejected by the ALJ. The RFC finding is legally sufficient and

1 || supported by substantial evidence, discussed supra. The ALJ therefore properly

2 || excluded other limitations from the RFC and hypothetical to the vocational expert.

The hypothetical contained the limitations the ALJ found credible and supported by

4|| substantial evidence in the record. The ALJ’s reliance on testimony the VE gave in

5 || response to the hypothetical was therefore proper. See id.; Bayliss v. Barnhart, 427

6|| F.3d 1211, 1217-18 (9th Cir. 2005).

7 CONCLUSION

8 Having reviewed the record and the ALJ’s findings, this Court concludes the

ALJ’s decision is supported by substantial evidence and free of harmful legal error.

10|| The Court hereby affirms the Commissioner’s decision.

11 Accordingly,

12 1. Plaintiff's Brief, ECF No. 12, is DENIED.

13 2. Defendant’s Brief, ECF No. 18, is GRANTED.

14 IT IS SO ORDERED. The District Court Clerk is directed to enter this

15 || Order and provide copies to counsel. Judgment shall be entered for the Defendant

16]| and the file shall be CLOSED.

17 DATED September 13, 2024.

19 LONNYR.SUKO

Senior United States District Judge

20

21

ORDER _%97