Waage v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

KAREN W., Ca se No. 6:24-cv-00294-AR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________________

ARMISTEAD, United States Magistrate Judge

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

benefits, Karen W. (last name omitted for privacy) challenges the Administrative Law Judge’s

findings regarding her symptom testimony, the medical opinion evidence, the lay witness

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testimony, and the vocational expert’s testimony. (Pl.’s Br. at 10-20.) As explained below, the

court affirms the Commissioner’s decision.1

PROCEDURAL BACKGROUND

Plaintiff applied for Title II Disability Insurance Benefits (DIB) in January 2018, alleging

disability onset as of December 31, 2017. (Tr. 815-17.) Her application was denied, and plaintiff

requested, and was granted, a hearing before an ALJ. (Tr. 176, 188.) On October 29, 2019, the

ALJ issued a decision finding plaintiff was not disabled. (Tr. 150-70.) Plaintiff appealed and the

Appeals Council subsequently remanded plaintiff’s claim for development of the record. (Tr.

171-75, 253.) The Appeals Council instructed the ALJ on remand to develop the record as to

plaintiff’s impairments and limitations, give consideration to whether plaintiff’s fibromyalgia

was a severe impairment at step two of the sequential evaluation, and give consideration to the

medical source opinion evidence. (Tr. 173.)

A new hearing took place on October 7, 2020. (Tr. 39-79.) On March 1, 2021, the ALJ

issued a partially favorable decision finding plaintiff was disabled as of February 6, 2021, but

was not disabled before that date. (Tr. 33.) The Appeals Council denied plaintiff’s request for

review of the ALJ’s decision. (Tr. 1-6.) Plaintiff sought review from this court, and on May 18,

2022, the ALJ’s decision was reversed and remanded for further proceedings, based on the

parties’ stipulation. (Tr. 703-04.) The parties agreed that on remand, the ALJ must restrict her

findings to the period before February 6, 2021, and “reevaluate the medical opinions and prior

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).

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administrative medical findings.” (Tr. 703-04.) The ALJ was also required to reevaluate the RFC,

and “obtain supplemental vocational expert evidence to clarify the effect of the assessed

limitations on Plaintiff’s ability to perform other work in the national economy.” (Tr. 704.)

Plaintiff’s third hearing took place before an ALJ on November 2, 2023. (Tr. 651-73.) On

November 17, 2023, the ALJ issued an unfavorable decision, and plaintiff now seeks review of

that decision. (Tr. 623-50.)

ALJ’S DECISION

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

evaluation process.2 At step one, the ALJ determined that plaintiff engaged in substantial gainful

activity (SGA) from March 2020, through September 2020. (Tr. 628.) Yet plaintiff had a

continuous 12-month period wherein she did not engage in substantial gainful activity, and the

ALJ thus directed her remaining findings to that period. (Tr. 629.) At step two, the ALJ

determined that plaintiff had the following severe impairments: left shoulder calcific tendonitis,

migraine headache disorder, cervical spine degenerative disc disease, irritable bowel syndrome,

obesity, posttraumatic stress disorder (PTSD), persistent depressive disorder, and social anxiety

disorder. (Tr. 629.) At step three, the ALJ determined that plaintiff’s impairments, singly or in

combination, did not meet or medically equal the severity of any listed impairment. (Tr. 631.)

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

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

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

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

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As for the ALJ’s assessment of plaintiff’s residual functional capacity (RFC), 20 C.F.R. §

404.1545, the ALJ determined that plaintiff had the ability to perform light work with these

added limitations:

occasional climbing of ramps or stairs, no climbing of ladders, ropes, or scaffolds,

and occasional stooping, kneeling, crouching, and crawling. With the left upper

extremity, the claimant was limited to occasional overhead reaching and frequent

reaching in other directions (left hand dominant individual). [She is] limited to

understanding, remembering, carrying out, and persisting at simple, routine,

repetitive tasks, and making simple work-related decisions with few if any

changes in the workplace, no assembly line pace work. She is limited to no public

contact and occasional contact with coworkers and supervisors. A bathroom must

be on premises.

(Tr. 633.) At step four, the ALJ determined that plaintiff cannot perform any past relevant work.

(Tr. 642.) Considering her RFC, the ALJ found at step five that, through February 5, 2021, jobs

existed in significant numbers in the national economy that plaintiff could perform, including

such representative occupations as marker, small products assembler, and electronics worker. (Tr.

644.)

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).

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DISCUSSION

A. Medical Opinion Evidence

Plaintiff challenges the ALJ’s consideration of the medical opinions of Drs. Coss,

Trueblood, and Hennings. The regulations require ALJs to evaluate the supportability and

consistency of a medical opinion when assessing its persuasiveness. 20 C.F.R. § 404.1520c. ALJs

must “articulate . . . how persuasive [they] find all of the medical opinions” and “explain how

[they] considered the supportability and consistency factors.” Woods v. Kijakazi, 32 F.4th 785,

792 (9th Cir. 2022) (quoting 20 C.F.R. § 404.1520c(b)(2)). Supportability is determined by

assessing whether the medical source provides explanations and objective medical evidence to

support their opinion. 20 C.F.R. § 404.1520c(c)(1). Consistency is determined by evaluating how

consistent the opinion is with evidence from other medical and nonmedical sources in the record.

20 C.F.R. § 404.1520c(c)(2).

1. Dr. Coss

On September 25, 2019, David Coss, MD, submitted a treating source statement in

support of plaintiff’s disability claim. The ALJ found Dr. Coss’s opinion unpersuasive because

the opined limitations were not supported by either his narrative explanation or plaintiff’s

treatment records. (Tr. 640.) Dr. Coss, the ALJ observed, did not examine plaintiff when he met

with her to fill out his medical opinion form; instead he “appear[ed] to have merely recorded

what she told him that day, even though her report of symptoms and limitations that day are

found nowhere else in the medical evidence.” (Tr. 640.) And the ALJ found that Dr. Coss’s

opinion as to plaintiff’s likelihood of missing work due to appointments and unscheduled

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bathroom breaks was inconsistent with the record. (Tr. 640.) The ALJ’s conclusions are

supported by substantial evidence.

Dr. Coss’s opinion states that plaintiff would need multiple 20-minute unscheduled

breaks throughout the day due to diarrhea and nausea, and that plaintiff has “diarrhea up to

twenty times a day.” (Tr. 581.) As noted by the ALJ, there are no treatment records that support

that severity or frequency, even when plaintiff’s gastrointestinal complaints were discussed. (See,

e.g., Tr. 527, 535, 538, 540, 541, 548, 549, 550, 553, 557, 561, 570, 574, 577, 602, 605, 606,

610.) There is no record of IBS before August 7, 2018, where IBS is listed as a follow up topic.

(Tr. 548.) Following that notation, IBS is not mentioned again until March 7, 2019. (Tr. 561.)

Indeed, Dr. Coss’s own treatment notes reflect only infrequent discussions of irritable bowel

syndrome and symptoms, and never to the extent alleged in his medical opinion until September

2019, the date he provided the medical opinion form on her behalf. (See, e.g., Tr. 570, 574-75,

586-87, 594, 596-97, 605, 610, 640.)

The ALJ also noted that there are no evaluations or diagnostic testing for gastrointestinal

complaints on which Dr. Coss could have relied in forming his opinion. (Tr. 640.) Plaintiff

argues that the ALJ ignored her explanation that she could not afford more specialized care. (Pl.

Br. At 11.) At her 2019 administrative hearing, plaintiff cited high out-of-pocket costs as the

reason that she could not follow up on treatment recommendations. (Tr. 96.) Even so, the ALJ’s

determination did not rely solely on plaintiff’s lack of follow through on recommended courses

of treatment and diagnostic testing. Instead, the ALJ detailed an extensive review of plaintiff’s

records, including records showing that plaintiff visited the doctor regularly during the relevant

period, and failed to allege symptoms at the level reported in Dr. Coss’ opinion. (Tr. 586-87.)

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Plaintiff also argues that the ALJ erred in evaluating Dr. Coss’s medical opinion by

failing to explore the connection between her PTSD and her abdominal pain and diarrhea. In

plaintiff’s view, the Appeals Council’s remand order required the ALJ to discuss her PTSD and

her abdominal symptoms. (Tr. 708-10; Pl. Br. At 11.) That argument is misplaced because the

Appeals Council’s order referred to the ALJ’s analysis of plaintiff’s symptom testimony, not Dr.

Coss’s medical opinion. (Tr. 708.) Moreover, even if that remand order required the ALJ to

discuss plaintiff’s PTSD and abdominal issues in the context of Dr. Coss’s opinion, the ALJ did

so. The ALJ explained that Dr. Coss’s opinion that “PTSD flares” would exacerbate plaintiff’s

IBS symptoms were unsupported by the record, including that plaintiff rarely complained of IBS

symptoms, had no diagnostic tests or specialty care associated with her IBS, and never

complained of limitations to like those reflected in Dr. Coss’s opinion. (Tr. 640.)

Finally, Dr. Coss’s opinion that plaintiff’s emotional lability would interfere with her

ability to work is similarly unsupported by his treatment notes and the record as a whole. As the

ALJ found, only on the day Dr. Coss provided his medical opinion did plaintiff report to Dr. Coss

emotional lability interfering with her ability to work. (Tr. 640.) That finding is supported by

substantial evidence. Plaintiff did not report emotional lability to other providers at medical

appointments, and records consistently refer to her mood and affect as normal. (See, e.g., Tr. 539,

542, 556, 560, 562.)

Plaintiff asserts that Dr. Coss’s conclusion about her lability is supported by records from

consultative examiner, Dr. Trueblood, including that she “was expelled from school twice, could

not get along with her teachers, had to finish her schooling through an adolescent day treatment

center, and has had problems getting along with others in various workplaces as an adult.” (Tr.

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617-18; Pl. Br. At 11.) Although Dr. Trueblood’s examination records document plaintiff’s

subjective history, those records do not show a pattern of lability. She explained to Dr. Trueblood

that she does not have “any tendency to yell or raise her voice toward others” and that her

“[t]emper was a more significant problem for her back in her junior high years.” (Tr. 532.) And

plaintiff’s records show that she is often described as having a normal affect, without a depressed

mood. (See, e.g., Tr. 528, 533, 539, 540, 542, 556, 560, 562, 570, 574.) Because the ALJ

discussed the supportability and consistency factors with a rationale supported by substantial

evidence, the ALJ did not err in finding Dr. Coss’s opinion unpersuasive.

2. Dr. Trueblood

In April 2018, William Trueblood, PC, Ph.D., ABN, performed a consultative

examination of plaintiff at the request of the agency. (Tr. 617.) Dr. Trueblood assessed plaintiff as

having a “degree of working memory impairment that may impact understanding relatively

complex instructions.” (Tr. 621.) Dr. Trueblood also opined that it was “appropriate to rate Karen

as having significant shortcoming in ability to remember instructions, and it could be as much as

substantial in degree.” (Tr. 621-22.)

The ALJ found Dr. Trueblood’s opinion persuasive but found his assessment of plaintiff’s

“significant shortcomings [] in understanding and remember instructions, greater when they are

fairly complex, shortcomings in attention and concentration, and difficulty engaging in

appropriate social interactions” to be vague. (Tr. 642.) The ALJ thus determined that plaintiff had

a “moderate impairment” in attention and concentration, based on Dr. Trueblood’s clinical

findings. (Tr. 642.) The ALJ concluded that “Dr. Trueblood’s assessment lends supports to the

findings that the claimant is limited to simple instructions with simple decisions in environments

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with few changes and limitations on interactions with the public, coworkers, and supervisors.”

(Tr. 642.)

Plaintiff does not directly challenge the ALJ’s evaluation of Dr. Trueblood’s opinion, but

argues that the ALJ improperly translated Dr. Trueblood’s restrictions into an RFC limiting her to

“simple instructions, simple decisions in environments with few changes, and limitations in

interacting with the public, coworkers, and supervisors.” (Pl. Br. at 13.) Dr. Bill Hennings, an

agency psychologist, reviewed Dr. Trueblood’s report and offered several concrete limitations.

According to plaintiff, the ALJ should have “used the translation of Dr. Trueblood’s opinion as

set forth in Dr. Hennings’ opinion,” instead of the ALJ crafting her own interpretation. (Pl. Br. at

13-14.)

Plaintiff asks the court to go beyond what the law itself requires. First, ALJs do not err by

relying on their own translation of a limitation into a concrete RFC restriction; nor are ALJs

required to adopt a credited medical source’s opinion, so long as the RFC finding adequately

captures that opinion. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (an

ALJ is not compelled to adopt, word-for-word, the limitations set forth by a credited medical

opinion, so long as the RFC adequately captures that opinion.) (citing Howard v. Massanari, 255

F.3d 577, 582 (8th Cir. 2001)). Here, the ALJ considered Dr. Trueblood’s evaluation and

translated his assessment into concrete restrictions consistent with his opinion. The ALJ was not

required to adopt Dr. Hennings translation of Dr. Trueblood’s assessment and plaintiff points to

no authority to support such an assertion.

Even after the ALJ assessed plaintiff’s limitations, the ALJ did not have to include those

limitations verbatim in the RFC or hypothetical question to the VE. See 20 C.F.R. §

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404.1520a(c)-(d) (only after the degree of limitation is rated in the functional areas is the severity

of the impairment rated overall; if the severity does not establish a listing, only then is the RFC

formulated); SSR 96-8p, 1996 WL 374184, at *4 (“limitations identified in the ‘paragraph B’

and ‘paragraph C’ criteria are not an RFC assessment”). Here, the ALJ reviewed Dr. Trueblood’s

clinical findings regarding plaintiff’s ability to understand and remember instructions against the

record and concluded that a moderate limitation was appropriate. The ALJ then supported that

conclusion with substantial evidence. (Tr. 642.) The ALJ therefore did not err in her evaluation of

Dr. Trueblood’s medical opinion.

3. Dr. Hennings

Dr. Hennings submitted a medical evaluation noting that plaintiff “is only occasionally

able to carry out detailed instructions. She can work in proximity to others but should not be

required to work in coordination with others. In the setting of a simple, routine job, [she] can

complete a normal work week.” (Tr. 130.) Dr. Hennings opined that plaintiff is precluded from

working with the public, and “will occasionally fail to get along with coworkers and requires a

job with relative autonomy.” (Tr. 130.)

The ALJ found Dr. Hennings’ opinion persuasive in terms of “limiting the claimant to

simple, routine jobs and no work with the public,” but that other limitations included in his

opinion were unsupported by the record. (Tr. 641.) For example, the ALJ found Dr. Hennings’

statement that plaintiff would occasionally fail to get along with coworkers not persuasive

because it was inconsistent with evidence that plaintiff regularly had a normal mood and affect,

and no issues with irritability. (Tr. 641.) Additionally, the ALJ found that “[s]imple, routine,

repetitive tasks, simple work-related decisions, and few if any changes eliminate the need for

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additional provisions . . . concerning ‘supported transitions’ during changes and ‘assistance to set

realistic goals.’” (Tr. 641.) The ALJ declined to include Dr. Hennings’ limitation concerning

supported changes because it was inconsistent with plaintiff’s “own statement that she handled

changes in routine ‘great.’” (Tr. 641.)

Plaintiff argues that the ALJ’s RFC finding omits key limitations and is therefore

insufficient. (Pl. Br. at 13-14.) Specifically, plaintiff argues that the omission of the limitation to

“occasionally” being able to carry out detailed instructions amounts to legal error. It is plaintiff’s

contention that Dr. Hennings’ use of the term “occasionally” restricts plaintiff to carrying out

detailed instructions for only up to one-third of the workday. By limiting plaintiff to only

occasionally carrying out detailed instructions, plaintiff argues that she is only capable of

performing jobs at reasoning level one, whereas the VE identified only jobs at reasoning level

two. Plaintiff argues that, had the ALJ’s RFC finding “included the limitation on performing

detailed tasks,” the RFC would have been more restrictive. (Pl. Repl. Br. at 7.)

The ALJ adequately explained the reasoning for partially discounting Dr. Hennings’

limitation regarding complex instructions and mental tracking, noting that the asserted

limitations contrast with plaintiff’s ability to perform six months of skilled work at above SGA

levels in 2020, after both Dr. Hennings’ and Dr. Trueblood’s opinions were issued. (Tr. 632.) An

ALJ need only include those limitations that he or she finds credible and supported by the record,

so long as the ALJ makes specific findings explaining why the limitations were not probative.

Stubbs-Danielson, 539 F.3d at 1174; see also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th

Cir. 2006) (“[I]n hypotheticals posed to vocational expert, the ALJ must only include those

limitations supported by substantial evidence.”). The RFC also limits plaintiff to “understanding,

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remembering, carrying out, and persisting at simple routine repetitive tasks,” as well as only

making “simple work-related decisions with few if any changes in the workplace, no assembly

line pace work.” (Tr. 633.) This sufficiently accounts for plaintiff’s moderate limitation in her

ability to understand, remember, and apply information. Thus, the ALJ’s rationale for not

including more restrictive limitations is reasonable and supported by substantial evidence. See

SSR 96-8p; see also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (concluding that an

ALJ is only required to include in the RFC those symptoms and limitations which the ALJ

determines are reliable and consistent with the record as a whole).

B. Subjective Symptom Testimony

Plaintiff argues that the ALJ failed to give specific, clear and convincing reasons for

disregarding her subjective symptom testimony. (Pl. Br. at 15-16.) Determining the credibility of

a claimant’s symptom testimony requires the ALJ to undertake a two-step process of analysis.

Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017); 20 C.F.R. § 404.1529. At the first step, 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 step, if there is no affirmative evidence of malingering, the ALJ must provide

specific, clear and convincing reasons for discounting the claimant’s testimony. Brown-Hunter v.

Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); 20 C.F.R. § 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

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not whether 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).

Plaintiff contends that the ALJ failed to provide clear and convincing reasons for

rejecting her symptom testimony. That is, according to plaintiff, the ALJ improperly disregarded

her testimony that she “needs multiple restroom breaks each day to deal with her IBS

symptoms.” (Pl. Br. at 17.) And plaintiff asserts that her limited ability to “lift and stand

establishes that she would not have been able to perform more than sedentary work during the

period at issue.” (Id.)

1. Medical Evidence

The ALJ properly discounted plaintiff’s testimony about the limiting effects of her

irritable bowel syndrome. (Tr. 636-37.) As the ALJ noted, the “[l]imited frequency and

consistency of complaints, lack of follow through with diagnostic evaluations, and no unintended

weight loss, anemia, or malnutrition” suggested plaintiff’s IBS symptoms did not “support

limitations beyond what is in the residual functional capacity.” (Tr. 637.) The ALJ’s reasons are

clear and convincing and supported by substantial evidence in the record. For example, the ALJ

noted that, “despite reports of urgent need to use the restroom multiple times a day and

abdominal pain in disability related paperwork and testimony, there is little evidence of the

claimant consistently reporting these issues to her treating providers.” (Tr. 636.) As noted above,

the record reflects that during routine medical exams, plaintiff “often denied abdominal pain,

change in bowel habits, and loss of bowel control.” (Tr. 636, citing Tr. 438, 444, 449, 508, 541,

553.) For example, in April 2019, plaintiff described abdominal symptoms such as cramping,

bloating, and mucous like stools with blood occurring “regularly over the last year” but denied

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weight changes and did not mention diarrhea symptoms. (Tr. 570-71.) Plaintiff received a

prescription for her symptoms and at her next appointment in July 2019, she mentioned no

abdominal complaints. (Tr. 574-75.) On September 10, 2019, plaintiff called Dr. Coss to discuss

filling out her disability paperwork. (Tr. 586.) As elaborated on above, this is the first occasion

that plaintiff attributed “frequent bathroom trips” to her PTSD. During a follow up appointment

with Dr. Coss, plaintiff attributed chronic pain, abdominal pain, and diarrhea to “manifestations

of her PTSD.” (Tr. 587-88.) This is the sole treatment record describing the frequency of her

bowel movements as “diarrhea up to 20 times per day.” (Tr. 588.) In contrast, at her October

2019 hearing, plaintiff testified that she has “has had IBS for quite a while” and that she uses the

bathroom “[p]robably every hour, or three or four times an hour.” (Tr. 93.) The ALJ noted in the

decision, inconsistent with that testimony, that plaintiff did not follow up on referrals for imaging

and labs regarding her stomach complaints, and in August 2020, plaintiff described “no other

concerns or complaints” besides her joint pain. (Tr. 605, 637.) The ALJ also found that plaintiff

did not report symptoms of frequent need for bathroom use again until the October 2020 hearing,

where she stated that she needed to use the bathroom “at least 10 times” daily while working.

(Tr. 47, 637.) Given the limited and infrequent treatment, inconsistent symptom complaints, and

lack of objective medical evidence supporting those symptoms, the ALJ reasonably discounted

plaintiff’s symptom testimony.

2. Activities of daily living

The ALJ cited plaintiff’s daily activities as being inconsistent with her alleged

limitations. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (there are two ways daily

activities may support discounting symptom testimony: (1) the activities contravene the

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claimant’s allegations of functional limitations; or (2) the activities “meet the threshold for

transferrable work skills”) In January 2018, plaintiff reported that she relied on others to do all

her cooking and household chores. (Tr. 326-27.) Plaintiff reported that she can “walk 10

[minutes],” and has no problems driving, but that she is limited by “pain, vertigo, [and] safety

issues due to mental fog.” (Tr. 327, 619.) In her consultative exam, she reported spending her

time watching television, reading, and coloring. (Tr. 620.) The ALJ found that plaintiff’s

testimony conflicted with her self-reported ability to manage her own personal care needs,

grocery shop, drive, and “sustain over six months of work activity in 2020.” (Tr. 638.) The court

agrees that plaintiff’s daily activities are inconsistent with her symptom allegations.

Plaintiff argues the ALJ improperly singled out “a few periods of temporary well-being

from a sustained period of impairment” to show daily activities inconsistent with her testimony.

(Pl. Br. at 16; quoting Garrison, 759 F.3d at 1017-18). The court disagrees. In the decision, the

ALJ relied on records throughout the relevant period to support her conclusions that are backed

by substantial evidence. For instance, in 2018 plaintiff alleged that she was unable to cook food

or perform household chores. Here, the ALJ found that report inconsistent with plaintiff’s ability

to sustain more than six months of skilled work activity that required her to be on her feet for 12-

hour shifts in 2020. (Tr. 638, citing Tr. 838-842; 324-31; 619-20.) An ALJ may consider any

work activity in determining whether a claimant is disabled. See Ford, 950 F.3d at 1156 (stating

an ALJ may consider any work, even part-time work, when considering whether a claimant is

disabled). And contrary to plaintiff’s report of missing a month of work in 2020, the ALJ noted

that plaintiff’s contention was unsupported by her earnings for that period. (Tr. 310-11).

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Contrary to her alleged physical limitations, the ALJ pointed out that plaintiff’s medical

records show that she reported to providers that her job required her to work on her feet for 12

hours a day. For example, on August 15, 2020, plaintiff visited urgent care for a knee injury and

reported that she “works in a lab where she’s on her feet for 12 hours.” (Tr. 606.) Plaintiff

requested and was granted “a few extra [Norco] pills,” but it was recommended that she go to

physical therapy and use a knee immobilizer. (Tr. 607.) There is no record of her following up on

either recommendation. On August 24, 2020, plaintiff called Dr. Coss to request “moving up to 3

Norco per day” given the increased pain she has with “standing for 12 [hours] a day at her

shifts.” (Tr. 610.) Based on plaintiff’s reports to providers that she worked on her feet for 12-

hour shifts, the ALJ could reasonably determine that plaintiff was not as limited as she alleged

and could discount her testimony on that basis.

In sum, the ALJ provided clear and convincing reasons supported by substantial evidence

to discount plaintiff’s subjective symptom testimony, and those findings will not be disturbed.

C. 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). An

exception to the rule applies, however, “[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.” Molina v.

Astrue, 674 F.3d 1104, 1118-19 (9th Cir. 2012); see also Valentine v. Comm'r Soc. Sec. Admin.,

574 F.3d 685, 694 (9th Cir. 2009) (“In light of our conclusion that the ALJ provided clear and

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convincing reasons for rejecting [the claimant’s] own subjective complaints, and because [the

claimant’s wife’s] testimony was similar to such complaints, it follows that the ALJ also gave

germane reasons for rejecting her testimony.”).

The Commissioner argues that the new regulations no longer require an ALJ to provide

reasons germane to non-medical sources in discounting their testimony. (Def. Br. at 16-17.)

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. See Kennedy v. O’Malley, No. 22-35866, 2024 WL 242992, at *1-2 (9th Cir. Jan.

23, 2024) (stating that under the new regulations, an ALJ is not required to articulate how [she]

considered evidence from nonmedical sources), and Fryer v. Kijakazi, No. 21-36004, 2022 WL

17958630, at *1 n.1 (9th Cir. Dec. 27, 2022) (“It is an open question whether ALJs are still

required to consider lay witness evidence under the revised regulations, although it is clear they

are no longer required to articulate it in their decisions.”). The court is unpersuaded 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. Wilson v. O’Malley, 23-35463, 2024

WL 2103268, at *2 (9th Cir. May 10, 2024) (stating is it unclear “whether an ALJ is required to

provide germane reasons for discounting lay witnesses under the new regulations”). Still, most of

the district courts in this circuit have “concluded that the new regulations have not eliminated an

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ALJ’s obligation to consider and address lay witness testimony.” Tracy Q. v. Kijakazi, No. 622-

cv-00692-SI, 2024 WL 706963, at *7 (D. Or. Feb. 21, 2024); accord 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).

Plaintiff argues that the ALJ erred in failing to provide reasons germane in discounting

the lay witness testimony of her husband, son, and daughter-in-law. (Pl. Br. at 18.) They each

completed witness statements regarding plaintiff’s limitations and symptoms. (Tr. 346-52; 388-

94; 396-402.) The ALJ concluded that the lay witness testimony was inconsistent with the

“medical and other evidence of record.” (Tr. 634.) For example, the ALJ found that the witnesses

described limitations to plaintiff’s ability to walk that were inconsistent with medical

examinations showing a normal gait. (Tr. 444, 536, 542, 556, 560, 597.) Additionally, the ALJ

noted that the lay witnesses provided inconsistent reports about plaintiff’s ability to tend to

personal care, including a 2018 report from her son, stating plaintiff needed help dressing and

bathing, which conflicted with reports from her daughter-in-law and husband in 2019 indicating

that plaintiff was independent in her personal care. (Tr. 347, 390, 398.). Finally, the ALJ noted

that the lay testimony was inconsistent with plaintiff’s ability to work in 2020. (Tr. 634.) The

reasons provided by the ALJ are sufficiently germane and are a reasonable reading of the record.

Page 18 – OPINION AND ORDER

According to plaintiff, the ALJ “improperly focused on minor, inconsequential

inconsistencies” and failed to provide reasons for “discounting the limitations the witness

described which would be disabling.” (Pl. Br. at 18.) The court disagrees. The ALJ reasonably

may consider plaintiff’s inconsistent statements about her ability to function during the relevant

period. See 20 C.F.R. § 404.1520b (an ALJ may consider all evidence, including inconsistencies

in the record, when determining whether a claimant is disabled). Moreover, the ALJ reviewed the

medical and other evidence and supported her conclusions with substantial evidence. The ALJ

thus reasonably concluded that the limitations described by plaintiff’s husband, son, and

daughter-in-law were inconsistent with the record and thus provided germane reasons, backed by

substantial evidence, for discounting that testimony.

C. Vocational Expert Testimony

Plaintiff’s final argument rests on the proposition that, because the ALJ rejected

limitations alleged in the medical opinion evidence, symptom testimony, and lay witness

testimony, the hypothetical posed to the VE was incomplete and thus has no evidentiary value.

(Pl. Br. at 19.) Having concluded that the ALJ did not err, the hypothetical proposed to the VE

contained all the limitations credited by the ALJ and supported by the record. See Kitchen v.

Kijakazi, 82 F.4th 732, 742 (9th Cir. 2023) (confirming that an ALJ may accept or reject

restrictions in a hypothetical question that are not supported by substantial evidence) (citations

omitted). The ALJ, therefore, did not err in relying on the VE’s testimony.

In summary, the ALJ’s conclusion as to the medical opinions, plaintiff’s symptom

testimony, the lay witness testimony, and the vocational expert’s testimony are based on

substantial evidence and supported by reasonable references drawn from the record.

Page 19 – OPINION AND ORDER

CONCLUSION

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

IT IS SO ORDERED.

DATED: February 28, 2025

_ _ _ _ _ _ _ _ _/s_/_ J_E__F_F_ A__R_M_I_S_T_E_A__D_

JEFF ARMISTEAD

United States Magistrate Judge

Page 20 – OPINION AND ORDER