McGlothin

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

ALYSSA M., Ca se No. 6:24-cv-01520-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, plaintiff Alyssa M. (last name omitted for privacy) challenges the Administrative Law

Judge’s findings regarding step two, their subjective symptom testimony, the medical opinion

evidence, and the lay witness testimony. Because the court finds that the ALJ did not err, the

Commissioner’s decision is affirmed.

ALJ’S DECISION

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

Supplemental Security Income (SSI) on January 19, 2021, alleging disability beginning on June

1, 2012. (Tr. 62-63, 82-83.) Their claims were initially denied and on reconsideration. (Tr. 80-81,

101, 110, 120.) Plaintiff then filed for a hearing that was held before the ALJ on August 24,

2023. (Tr. 37.) The Appeals Council denied review, making the ALJ’s decision final.

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

process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step one, the ALJ determined

plaintiff had not engaged in substantial gainful activity since the alleged onset date. (Tr. 20-21.)

At step two, the ALJ determined that they had the following severe impairments: migraine

headache disorder, obesity, left patellofemoral syndrome, major depressive disorder, and

generalized anxiety disorder. (Tr. 21.) At step three, the ALJ determined that their impairments

singly or in combination did not meet or medically equal the severity of any listed impairment.

(Tr. 22.) 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 some limitations. (Tr. 24.) At step four, the ALJ determined that plaintiff has no past

relevant work. (Tr. 29.) Considering their age, education, work experience, and RFC, the ALJ

found at step five that jobs existed in significant numbers in the national economy that plaintiff

could perform, including such representative occupations as electronics worker, garment sorter,

and “stocker checker, apparel[.]” (Tr. 30.)

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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, 587 U.S. 97, 103 (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. Step Two

At step two, the ALJ determines the medical severity of a physical or mental impairment,

and if the claimant does not have any medically severe impairments, he or she is not

disabled. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); 20 C.F.R. §

404.1520(a)(4)(ii); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). An impairment is

severe if it “significantly limits” a claimant’s “physical or mental ability to do basic work

activities,” 20 C.F.R. § 404.1521(a), and not severe if the “medical evidence establishes only a

slight abnormality or combination of slight abnormalities which would have no more than a

minimal effect on an individual’s ability to work.” Social Security Ruling (SSR) 85-28, available

at 1985 WL 56856, at *3 (Jan. 1, 1985). Even if an impairment is not severe, the ALJ must still

consider its limiting effect when formulating the claimant’s RFC. Ghanim v. Colvin, 763 F.3d

1154, 1166 (9th Cir. 2014); 20 C.F.R. § 404.1545(a)(2). Generally, the step two threshold is low;

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the Ninth Circuit describes it as a “de minimus screening device to dispose of groundless

claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted).

Plaintiff argues that the ALJ committed reversible legal error by concluding that their

fibromyalgia was not medically determinable at step two. Fibromyalgia can be established as

medically determinable under either of two sets of criteria, enumerated in Social Security Ruling

12-2P, 2012 WL 3104869 (July 25, 2012); Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996,

1005 (9th Cir. 2015). First, based on the “1990 ACR Criteria for the Classification

of Fibromyalgia,” this impairment is medically determinable if: (1) the claimant has a “history of

widespread pain—that is, pain in all quadrants of the body (the right and left sides of the body,

both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest,

thoracic spine, or low back)—that has persisted (or that persisted) for at least 3 months. The pain

may fluctuate in intensity and may not always be present.”; (2) “[a]t least 11 positive tender

points on physical examination”; and (3) there is “[e]vidence that other disorders that could

cause the symptoms or signs were excluded.” SSR 12-2P, 2012 WL 3104869, at *2-3. Second,

based on the “2010 ACR Preliminary Diagnostic Criteria,” fibromyalgia is medically

determinable if: (1) the claimant has a “history of widespread pain,” as provided in the 1990

ACR criteria; (2) the claimant has “[r]epeated manifestations of six or more symptoms, signs, or

co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems

(‘fibro fog’), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome”;

and (3) there is “[e]vidence that other disorders that could cause these repeated manifestations of

symptoms, signs, or co-occurring conditions were excluded.” Id. at *3.

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In the decision, the ALJ determined that plaintiff’s fibromyalgia was not medically

determinable because the evidence failed to satisfy either set of criteria and because their medical

records did not reveal a fibromyalgia diagnosis. Plaintiff argues that they received a diagnosis

from Diman Raj Lamichhane M.D., in May 2023. As the ALJ explained, however, this was not a

formal diagnosis and other conditions were not excluded. (Tr. 22, citing Tr. 1197-1201.) The

treatment note discussed by the ALJ indicates that Dr. Lamichhane stated “[plaintiff’s] findings

are suggestive of fibromyalgia. I will request records from PCP’s office. If not completed, I will

check for thyroid stimulating hormone and creatinine kinase.” (Tr. 1201.) Dr. Lamichhane also

noted that “[plaintiff] will benefit from a genetic test for vascular type Ehler-Danlos.” (Tr. 1201.)

At the hearing, the ALJ repeatedly asked plaintiff’s attorney where the diagnosis for

fibromyalgia was in the record, yet plaintiff’s attorney was unable to pinpoint an official

diagnosis. (Tr. 45-51.) Their attorney explained an array of plaintiff’s symptoms and abnormal

exams from plaintiff’s primary care doctor found at Exhibit 4F, but did not identify an official

diagnosis. (Tr. 45-51.) Further, plaintiff testified that no follow-up with Dr. Lamichhane

regarding additional evaluation for fibromyalgia had occurred. (Tr. 51.)

Also argued by plaintiff is that the ALJ erred by not considering whether plaintiff

satisfied the 2010 criteria. But that is not error. Under SSR 12-2P, a physician may diagnose

fibromyalgia under either the 1990 or the 2010 criteria, provided the physician has ruled out

other possible causes of a claimant’s pain. See Ford, 950 F.3d at 1155 n.7 (citing SSR 12-2P,

2012 WL 3104869, at *2-3) (emphasis added). SSR 12-2P provides that fibromyalgia is a

medically determinable impairment “if the physician diagnosed [fibromyalgia] and provides the

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evidence” that meets either criteria. The ALJ is not required to independently determine whether

the ACR criteria are satisfied.

The case that plaintiff relies on, Swales v. Saul, 852 F. App’x 253 (9th Cir. 2021), is

distinguishable. In Swales, the court held the ALJ erred in failing to find Swales’ fibromyalgia

medically determinable because the “record includes documentation of an examining physician

finding that Swales met the diagnostic criteria for fibromyalgia” and evidence that the treating

nurse practitioner acknowledged that diagnosis, and that myriad other possible causes for the

pain had been ruled out. Id. at 255 (emphasis added). The court also concluded that the step-two

error was harmful because the ALJ discredited Swales’s subjective symptom testimony and the

nurse practitioner’s opinion based on a perceived inconsistency between Swales’ subjective

complaints and objective medical evidence related to his fibromyalgia. Id. Unlike Swales,

plaintiff has not identified a diagnosis of fibromyalgia by a physician under the diagnostic

criteria here. Consequently, the ALJ’s finding that plaintiff’s fibromyalgia was not medically

determinable is supported by substantial evidence.

B. Plaintiff’s Symptom Testimony

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

disregarding their subjective symptom testimony. (Pl.’s Br. at 11-17.) 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, 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

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1035, 1039 (9th Cir. 2008). At the second stage, 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 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).

In plaintiff’s application for disability benefits, they wrote that they cannot engage in full-

time, competitive employment because of their physical and mental health symptoms. In their

function report, plaintiff explained that they had to reduce the number of hours worked in their

past job “because even part-time [work] ha[d] pushed [their] anxiety to the limits, causing

multiple panic attacks a day.” (Tr. 291.) Interactions with others at work triggered them, and they

struggled to communicate with managers. (Tr. 291.) Their mental impairments affected their

ability to maintain a regular sleep schedule and caused an array of executive functioning issues

that hindered them from maintaining their personal hygiene. (Tr. 292.) Plaintiff also explained

that they need reminders to take their medications and to maintain their personal hygiene and

grooming needs, and that they experience “brain fog,” do not drive, and rarely leave home. (Tr.

293-94, 269, 318, 320.) And spending time with family and authority figures causes anxiety,

which means that they only go to places where they know the other people present, and do not

have hobbies. (Tr. 295-96, 321.) Their chronic migraines prevent them from working “for up to a

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week at a time.” (Tr. 291.) When they have a migraine, they also experience nausea, pain, aura,

vomiting, with sensitivity to sound, smells, and light. (Tr. 291, 217.) Plaintiff could do household

chores when they did not have a migraine, but they needed frequent breaks to avoid triggering a

migraine. (Tr. 294.)

Plaintiff has a long history of migraines. At the hearing, plaintiff testified that they were

taking Duloxetine to treat fibromyalgia for the past six months, and that they have taken

medication for fibromyalgia since they were 18 years old. (Tr. 51-52.) Plaintiff described that in

2009, their migraines lasted a day and a half, and were treated with Excedrin. (Tr. 52.) In 2014,

their migraines began to increase in frequency—two to three times a week—and became

“significantly longer each time”—they lasted about a day and a half. (Tr. 52-53.)

As to their mental health, plaintiff testified that they spent at least a week in bed each

month due to depression, and that they treat their depression with antidepressants and therapy.

(Tr. 53.) Two to three panic attacks a month caused them to shake, twitch, hyperventilate, and

cry. (Tr. 55) When the ALJ questioned plaintiff about their gap in medical treatment from 2009

to 2014, plaintiff replied that they did not have medical insurance during that time. (Tr. 56.)

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

statements regarding their work history were inconsistent, (2) their activities of daily living are

inconsistent with their claimed limitations, (3) their treatment history shows that symptoms

improved with treatment, and (4) their medical records show largely normal objective findings

during medical appointments. Plaintiff contends that the ALJ’s conclusions are not supported by

substantial evidence. (Pl.’s Br. at 11-17.) The court disagrees, and addresses each of the ALJ’s

rationales in turn.

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Inconsistent Statements Regarding Work History. The ALJ concluded that the

“inconsistent statements from [plaintiff] and others concerning why [their] work activity

ended . . . suggest [plaintiff] is able to sustain work activity.” (Tr. 27.) Plaintiff reported working

from April 2019 to December 2019 and a treatment note from December 2019 shows that

plaintiff described their work as “more for supplementary income,” and the ALJ stated this

“suggest[s] there were reasons other than disability for limiting work activity.” (Tr. 27, citing Tr.

424.)) The ALJ also pointed out that in March 2022, plaintiff was asked to describe how they

were the last time they worked, and plaintiff stated that they were “doing really well managing

day to day anxieties and depression, but doing so well kept getting me promoted and more

projects” which became overwhelming. (Tr. 27, citing Tr. 725-26.) The ALJ reasonably could

find those statements inconsistent with plaintiff’s reports that they reduced their hours in past

jobs “because even a part-time job ha[d] pushed [their] anxiety to the limits, causing multiple

panic attacks a day.” Tr. 291. And the ALJ discussed that plaintiff’s former employer submitted

a letter stating that they worked part-time from July 19, 2010, through September 17, 2012, and

from July 14, 2017, through January 24, 2018, and that plaintiff was in good standing but did not

return after requesting a medical leave of absence in January 2018. (Tr. 27, citing Tr. 238.) That

letter also states that plaintiff had no attendance issues, “no documentation of infractions of any

sort,” and that plaintiff’s “quality, attendance, and production were all satisfactory.” (Tr. 27,

citing Tr. 238.) The ALJ explained that the medical evidence from April 2015 to December 2018

does not document any impairment related issues that support plaintiff’s stated reason for no

longer being employed after their leave of absence. (Tr. 27, citing Tr. 489-92, 494-97.)

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Plaintiff does not challenge the ALJ’s assessment that their work history is inconsistent

with their subjective symptom testimony. The court finds that the ALJ did not err in considering

plaintiff’s inconsistent statements regarding their work history. Tommasetti, 533 F.3d at 1040

(holding ALJ did not err in relying on claimant’s inconsistent statements about work history and

capabilities to discount subjective symptom testimony). That finding is supported by substantial

evidence and is sufficiently specific to allow the court to meaningfully review the ALJ’s

reasoning. The ALJ did not err.

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 extent that they contradict claims of a totally

disabling impairment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012).

Plaintiff argues that the ALJ did not identify what activity he found inconsistent with

their subjective symptom testimony. According to plaintiff, they testified to minimal daily

activities, with depression and anxiety significantly that affected their “ability to maintain

personal hygiene, engage in any activity outside the home, socialize with people they do not

know, and sustain focus and concentration.” (Pl.’s Br. at 10.) Their “progress in self-esteem, self-

advocacy, and boundary setting with family,” in plaintiff’s view, is not substantial evidence that

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supports the ALJ’s conclusion that plaintiff is able to sustain fulltime competitive employment.

The court disagrees.

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

inconsistent with their allegations of debilitating physical and mental health symptoms. (Tr. 26-

27.) The ALJ acknowledged that in September 2022, plaintiff’s second function report stated that

they “were ‘terrified to leave’ the trailer they were living in.” (Tr. 26, quoting Tr. 317.) Even so,

the ALJ explained that this statement was made when plaintiff was getting out of a relationship

and was living on their partner’s family property. (Tr. 26-27, citing Tr. 1038-40.) The ALJ cited

therapy treatment notes from September 2022 to February 2023 where plaintiff reported they had

moved to a better housing situation and were going on several social outings including two

concerts. (Tr. 27, citing Tr. 1018-23, 1080, 1083, 1134.) And in plaintiff’s most recent mental

health treatment notes from August 2023, plaintiff conveyed that one of their “measurable

objectives” was to increase their ability to complete at least one task outside the home per day.

(Tr. 27, citing Tr. 1230.) Based on that treatment note, the ALJ found that plaintiff was

successfully completing tasks outside the home three to four days per week. (Tr. 27, citing Tr.

1230.) The ALJ’s finding that plaintiff’s subjective symptom testimony about their mental

impairments was inconsistent with their activities of daily living is supported by substantial

evidence and a reasonable interpretation of the record. Chaudhry v. Astrue, 688 F.3d 661, 672

(9th Cir. 2012) (“If the ALJ’s finding is supported by substantial evidence, the court may not

engage in second-guessing.” (quotation omitted)).

Migraines Improved with Treatment. The ALJ also found that plaintiff’s migraine

symptoms improved with conservative treatment when concluding that their symptom testimony

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overstated their limitations. (Tr. 25-26.) Plaintiff argues that the record “fails to support the

ALJ’s conclusion that their migraines improved with treatment. (Pl.’s Br. at 16.) Also contended

by plaintiff is that they “engaged in regular treatment for ongoing migraines, including

medication management and acupuncture” and that the ALJ erred in discounting their testimony

because they did not seek out more aggressive migraine treatment. (Id.)

An ALJ may reject a claimant’s symptom testimony if that testimony is contradicted by

evidence in the medical record. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161

(9th Cir. 2008). If the record shows a claimant’s symptoms have improved with treatment,

that improvement is “an important indicator of the intensity and persistence of . . .

symptoms.” 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Wellington v. Berryhill, 878 F.3d 867,

876 (9th Cir. 2017) (noting “evidence of medical treatment successfully relieving symptoms can

undermine a claim of disability”). 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).

Here, regarding plaintiff’s migraine symptoms, the ALJ relied on treatments notes from

2010 to 2022 documenting conservative treatment, gaps in treatment, and overall improvement

with treatment. (Tr. 25-26.) Although plaintiff has a long history of migraine headache disorder,

and was diagnosed in 2006 and 2009, the ALJ explained that there is no evidence of treatment

for migraines again until December 2014, when plaintiff described their headaches as

“incapacitating,” unilateral, with aura, nausea, and vomiting once per week. (Tr. 25, citing Tr.

519-24.) The ALJ found this description inconsistent with their hearing testimony about how

often they had migraines during that same time. (Tr. 25.)

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In December 2014, Gail Hacker, M.D., prescribed Maxalt as an abortive medication and

treatment notes show that a prophylactic medication would be considered if plaintiff’s migraines

persisted with four months of treatment on Maxalt. (Tr. 25, citing Tr. 522.) The ALJ explained

that at plaintiff’s follow-up appointments, there was no discussion of migraine medication

management. (See Tr. 502-517.) The ALJ explained that in March 2015, Dr. Hacker prescribed

plaintiff amitriptyline which provided good results—plaintiff reported having no headaches or

occasionally once per week—and plaintiff did not seek additional migraine treatment until

December 2018 when they re-established care with Jessica Criser, NP. (Tr. 25, citing Tr. 498-

500; Tr. 26, citing Tr. 489-92.)

Although plaintiff’s first gap in treatment from 2009 to 2014 is explained by plaintiff’s

lack of insurance, there is the second gap in treatment from 2014 to 2018. (Tr. 56.) In December

2018, plaintiff reported that they were solely using over-the-counter medications to treat their

migraines during that second gap. Even though plaintiff reported in the next month that they

experienced “migraine headaches most days [without] aura,” there was no discussion of

headaches, plaintiff denied having headache symptoms, and no migraine medication was

prescribed in the following months. (Tr. 26, citing Tr. 485-488, 462-484). The ALJ’s finding that

a significant gap in plaintiff’s migraine treatment from 2014 to 2018 occurred is supported by

substantial evidence and is an appropriate basis on which to discount plaintiff’s subjective

symptom testimony. Based on the four-year absence of treatment, the ALJ could reasonably

conclude that plaintiff’s subjective symptoms were not as disabling as alleged. Molina, 674 F.3d

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at 1112 (ALJ may discount claimant’s testimony based on “unexplained or inadequately

explained failure to seek treatment”) (citation modified).

The ALJ also discussed plaintiff’s acupuncture treatment history. In 2019, plaintiff’s

acupuncture decreased the frequency and severity of their migraine headaches. Plaintiff sought a

new referral for acupuncture in June 2020, because they found acupuncture to be helpful in

alleviating their symptoms. (Tr. 26, citing Tr. 459.) At this referral appointment, even though

plaintiff reported experiencing migraines about once a week with photophobia, sensitivity to

odors, vomiting, and nausea, plaintiff had not sought treatment in many months and denied

changes in cognition or mentation. (Tr. 26.) The ALJ found that the frequency and duration of

plaintiff’s migraines is inconsistent with their hearing testimony where they testified that their

migraines had progressively worsened since their onset date. (Tr. 26.)

Next, the ALJ discussed how plaintiff engaged in physical therapy for headaches and

cervicalgia after their vertebral artery dissection. (Tr. 26, citing 577-83, 596-98.) During that

time, plaintiff was using over-the-counter medication to treat their migraines. The ALJ

acknowledged that plaintiff reported that they continued to have severe headaches about once a

month, and that they engaged in one physical therapy appointment despite having a migraine and

nausea. (Tr. 26, citing Tr. 475.). The ALJ explained that “per neurology, plaintiff had an

excellent response to physical therapy in reducing headache frequency to about once a week with

intensity being much less” (Tr. 26, citing Tr. 620-26 (citation modified); in June 2022, plaintiff

alleged near constant migraine symptoms and requested a daily maintenance medication, but

they “did not trial topiramate as prescribed and continued to use only over the counter

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medication” (Tr. 26, citing Tr. 758-62); eventually amitriptyline was prescribed, but there was no

discussion in follow-up appointments regarding its efficacy, and that plaintiff did not report

migraine headaches at their acupuncture appointments (Tr. 26, citing Tr. 753-56, 994, 997-99,

664-69, 686-89, 692). The ALJ concluded “at no point was there a prolonged effort to trial

preventative medication aside from amitriptyline . . . and there was no discussion of other

treatment options such as a botulinum toxin or other injectables.” (Tr. 26.) The ALJ’s discussion

of the medical record is supported by substantial evidence.

All said, the record reflects that the ALJ reasonably could conclude that plaintiff’s ability

to obtain relief with treatment, inconsistent participation in treatment, and not pursuing more

aggressive treatment undermined their complaints of disabling migraines and serve as a specific,

clear and convincing reason to discount their testimony. When the record supports more than one

rational interpretation, if the ALJ’s conclusion is reasonable and supported by substantial

evidence, it must be upheld. Molina, 674 F.3d at 1111.

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); Smartt, 53 F.4th at 498-99. An ALJ may not, however,

discount a claimant’s subjective testimony by demanding positive objective medical evidence

that fully corroborates each allegation within that subjective testimony. Smartt, 53 F.4th at 498-

99; Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (affirming ALJ’s discounting of

subjective claims of disabling pain based on objective medical evidence and daily activities).

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The ALJ discussed that, despite plaintiff’s left patellofemoral syndrome, they consistently

exhibited regular gait, heel-toe and tandem gait, balance, and coordination. (Tr. 25, citing 427,

451, 459, 521, 560, 580, 684, 780, 784-86, 917, 1200.) As for their mental impairments, the ALJ

discussed how plaintiff’s medical providers seldom observed an anxious or depressed mood, and

when it was observed, it was often due to situational stressors. (Tr. 26, citing 411-12, 416-17,

427, 546, 553, 560, 580, 602, 623, 653-54, 713-18, 1018-23.) The ALJ also discussed that when

plaintiff was consistent with their medication management and in therapy, they reported that

their anxiety decreased when in public, had greater mood stability, and a greater ability to

accomplish daily tasks. (Tr. 26, citing 414-19, 462-64, 466-68, 473-75, 479-80, 482-84, 686-89.)

Plaintiff does not challenge the ALJ’s findings that detail the inconsistencies between the

objective medical evidence and plaintiff’s symptom testimony.1 The ALJ’s findings on this point

are supported by substantial evidence, are a reasonable interpretation of the evidence, and

provide a specific, clear and convincing reasons to discount plaintiff’s subjective symptom

testimony.

In summary, the ALJ provided four reasons, each supported by substantial evidence, to

support his findings. Those reasons, especially in combination, amount to specific, clear and

convincing reasons for discounting plaintiff’s subjective symptom testimony.

C. Medical Opinion Evidence

Plaintiff challenges the ALJ’s consideration of the medical opinions of Kelsey

Pemberton, LCSW, plaintiff’s therapist. The regulations require ALJs to evaluate the

1 Plaintiff also does not argue how the ALJ’s subjective symptom finding would be different

had the ALJ found his fibromyalgia a medically determinable impairment.

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supportability and consistency of a medical opinion when assessing its persuasiveness. 20 C.F.R.

§ 404.1520c(c). 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).

On December 15, 2022, Kelsey Pemberton, LCSW, submitted a treating source form

supporting plaintiff’s disability claim. (Tr. 896-99.) The ALJ found Pemberton’s form

unpersuasive, noting that Pemberton is not an acceptable medical source, her opined limitations

are not consistent with the medical record, and that “while Pemberton provides some

explanation, it is mostly citation to subjective reports from [plaintiff.]” (Tr. 29.) The ALJ’s

conclusions are supported by substantial evidence.

Plaintiff challenges the ALJ’s evaluation of Pemberton’s opinion on two primary

grounds. First, they argue that the ALJ erred in discounting Pemberton’s opinion because she

was not an “acceptable medical source.” In plaintiff’s view, as a qualified mental health

practitioner, Pemberton is a licensed medical practitioner under Oregon law, and the ALJ erred

in rejecting her opinion because she is not an acceptable medical source. (Pl.’s Br. at 8-9, citing

OAR 291-124-1030(2)). The court is not convinced. Even if the ALJ erred in finding that

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Pemberton was not an acceptable medical source,2 the ALJ evaluated Pemberton’s medical

source opinion about plaintiff’s limitations, including its supportability and consistency. 20

C.F.R. §§ 404.1520c, 416.920c

Second, plaintiff contends that the ALJ erred by discounting Pemberton’s opinion

because it relied on plaintiff’s self-reports rather than clinical findings. (Tr. 29, citing 901-04.).

According to plaintiff, an ALJ must exercise care when rejecting opinions based on self-reports

in the mental health context. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (“the rule

allowing an ALJ to reject opinions based on self-reports does not apply in the same manner to

opinions regarding mental illness”). But it wasn’t that the ALJ rejected Pemberton’s opinion

based on plaintiff’s self-reports, but that Pemberton’s form is mostly a record of what plaintiff

reported to her. (Tr. 29 (“while Pemberton provides some explanation, it is mostly citation to

subjective reports from the claimant.”)

The ALJ also concluded that Pemberton’s opinion was inconsistent with the objective

medical record. An ALJ may also reject an opinion that is “brief, conclusory, and inadequately

supported by clinical findings,” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.

2009) (citation omitted), and the ALJ here did that by discussing how the marked and extreme

limitations assessed by Pemberton are inconsistent with other record evidence, noting that

2 The parties agree that “physical or mental impairments must be established by objective

medical evidence from an acceptable medical source,” 20 C.F.R. §§ 404.1521, 416.921, and that

Pemberton is not an “acceptable medical source” as defined under 20 C.F.R. § 404.1502(a)

(defining “acceptable medical source” to include a licensed physician or licensed psychologist).

Pemberton’s state license only means that she is a “medical source” under social security

regulations. 20 C.F.R § 1502(d) (defining “medical source” as individuals licensed “as a

healthcare worker by a State”).

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plaintiff engaged in activities “contrary to the degree of restriction assessed,” including progress

in “self-esteem, self-advocacy, and boundary setting with family” and (Tr. 29, citing Tr. 728,

1054, 1080, 1083, 1104, 1119, 1160-61, 1176, 1229-1249.) Given that the ALJ addressed these

activities when evaluating plaintiff’s subjective symptom testimony, this finding is supported by

substantial evidence and is sufficiently specific to allow the court to meaningfully review the

ALJ’s reasoning. Tommasetti, 533 F.3d at 1041. As a result, the ALJ did not err.

D. Lay Witness Testimony

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

must consider unless he “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.” Id. (quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)).3

Plaintiff asserts that the ALJ erred by not providing an assessment of her friend Kati’s

3 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.

Although the “germane reasons” standard is under consideration at the Ninth Circuit, absent

clear direction, the court will continue to require the ALJs to consider and address lay witness

testimony. See Hudnall v. Dudek, 130 F.4th 668, 671 (9th Cir. March 7, 2025) (overruling

germane reasons standard), vacated and withdrawn, 133 F.4th 968 (9th Cir. Apr. 7, 2025)); see

also Isaiah L. v. Comm’r Soc. Sec. Admin., 6:24-cv-02081-AR, 2025 WL 2910190, at *6 (D. Or.

Oct. 14, 2025) (concluding that “the new regulations have not eliminated an ALJ’s obligation to

consider and address lay witness testimony”); Karen W. v. Comm’r Soc. Sec. Admin., 6:24-cv-

00294-AR, 2025 WL 654113, at *8 (D. Or. Feb. 28, 2025) (same, collecting cases)).

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function report. But the ALJ did consider Kati’s function report, and observed that it had “little

evidentiary value” because most of the responses in the report were not direct observations of

plaintiff and some responses were inconsistent with other information. (Tr. 25; “responses are

inconsistent with other information, such as the claimant being unable to go [to] concerts

because later that year they did in fact attend a concert.”’)

That explanation is sufficiently germane, and supported by substantial evidence.

CONCLUSION

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

action is DISMISSED.

DATED: February 17, 2026.

i / ISTEAD

United States Magisttate Judge

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