1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FELIPE H., ) Case No. 2:20-cv-10395-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) KILOLO KIJAKAZI, Acting ) 15 Commissioner of Social Security ) Administration, ) 16 ) ) 17 Defendant. ) ) 18 19 20 I. 21 INTRODUCTION 22 On November 12, 2020, plaintiff Felipe H. filed a complaint against 23 defendant, the Commissioner of the Social Security Administration 24 (“Commissioner”), seeking review of a denial of a period of disability and 25 disability insurance benefits (“DIB”) and supplemental security income (“SSI”). 26 The court deems the matter suitable for adjudication without oral argument. 27 Plaintiff presents four issues for decision: (1) whether the Administrative 28 Law Judge (“ALJ”) improperly discounted plaintiff’s symptom testimony, (2) 1 whether the ALJ properly considered third party lay testimony, (3) whether the 2 ALJ erred in his residual functional capacity (“RFC”) determination, and (4) 3 whether the ALJ erred in relying the vocational expert’s testimony regarding an 4 allegedly incomplete hypothetical. Plaintiff’s Motion in Support of Plaintiff’s 5 Complaint (“P. Mem.”) at 27-37; see Defendant’s Memorandum in Support of 6 Answer (“D. Mem.”) at 1-9. 7 Having carefully studied the parties’ memoranda on the issues in dispute, the 8 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 9 that, as detailed herein, the ALJ properly discounted plaintiff’s testimony, any error 10 in discounting the third party testimony was harmless, the ALJ’s RFC 11 determination was supported by substantial evidence, and the ALJ properly relied 12 on the vocational expert’s testimony at step five. Consequently, the court affirms 13 the decision of the Commissioner denying benefits. 14 II. 15 FACTUAL AND PROCEDURAL BACKGROUND 16 Plaintiff was 25 years old on the alleged disability onset date. AR at 74, 88. 17 He has a ninth grade education and past relevant work as a janitor. AR at 42-43, 18 64. 19 On July 23, 2017, plaintiff filed applications for a period of disability and 20 DIB, and for SSI, alleging an onset date of January 28, 2015. AR at 74-75, 88-89. 21 Plaintiff claimed he suffered from severe depression, anxiety, social isolation, 22 social phobia and paranoia, paranoid schizophrenia and distrust of people, inability 23 to deal with stress, fatigue, insomnia, impaired memory and concentration, and 24 suicidal ideation. AR at 75, 89. Plaintiff’s applications were denied initially and 25 upon reconsideration. AR at 106. 26 Plaintiff, represented by counsel, appeared and testified at a hearing before 27 the ALJ on November 12, 2019. AR at 41-62. The ALJ also heard testimony from 28 1 Rebecca Kendrick, a vocational expert. AR at 62-70. The ALJ denied plaintiff’s 2 claims for benefits on December 3, 2019. AR at 15-29. 3 Applying the well-established five-step sequential evaluation process, the 4 ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity 5 since the alleged onset date. AR at 17. 6 At step two, the ALJ found plaintiff suffered from the following severe 7 impairments: schizophrenia, depression, anxiety, and cannabis use disorder in 8 remission. AR at 18. 9 At step three, the ALJ found that plaintiff’s impairments, whether 10 individually or in combination, did not meet or medically equal one of the 11 impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR at 18. 12 The ALJ then assessed plaintiff’s RFC,1 and determined he had the ability to 13 perform a full range of work at all exertional levels, but with nonexertional 14 limitations: 15 [Plaintiff] can perform tasks of nature that can be learned within a 16 short demonstration period of approximately 30 days, with no more 17 than frequent changes to the daily workplace tasks and duties. He can 18 work primarily with things, rather than with people, such that the 19 workplace contact with others is only on an occasional basis. He can 20 maintain concentration, pace, and persistence, for two hours at a time 21 before taking regularly scheduled breaks, and returning to work 22 throughout the workday. 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 56 nn.5-7 (9th Cir. 1989) (citations omitted). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the 27 ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 1 AR at 20-21. 2 At step four, the ALJ determined plaintiff is unable to perform his past 3 relevant work as a janitor. AR at 26. 4 At step five, considering plaintiff’s age, education, work experience, and 5 RFC, the ALJ found there are jobs that exist in significant numbers in the national 6 economy that plaintiff can perform, including cleaner II, industrial cleaner, and 7 housekeeper/laundry aide. AR at 28. The ALJ accordingly concluded plaintiff 8 was not under a disability, as defined in the Social Security Act. AR at 29. 9 Plaintiff filed a timely request for review of the ALJ’s decision, which the 10 Appeals Council denied. AR at 1-3. Accordingly, the ALJ’s decision stands as the 11 final decision of the Commissioner. 12 III. 13 STANDARD OF REVIEW 14 This court is empowered to review decisions by the Commissioner to deny 15 benefits. 42 U.S.C. § 405(g). The findings and decision of the SSA must be 16 upheld if they are free of legal error and supported by substantial evidence. Mayes 17 v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court 18 determines the ALJ’s findings are based on legal error or are not supported by 19 substantial evidence in the record, the court may reject the findings and set aside 20 the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th 21 Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 22 “Substantial evidence is more than a mere scintilla, but less than a 23 preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial 24 evidence is such “relevant evidence which a reasonable person might accept as 25 adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 26 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether 27 substantial evidence supports the ALJ’s finding, the reviewing court must review 28 1 the administrative record as a whole, “weighing both the evidence that supports 2 and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 3 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific 4 quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (cleaned up). If the 5 evidence can reasonably support either affirming or reversing the ALJ’s decision, 6 the reviewing court “may not substitute its judgment for that of the ALJ.” Id. 7 (cleaned up). 8 IV. 9 DISCUSSION 10 A. The ALJ Properly Considered Plaintiff’s Symptom Testimony 11 Plaintiff argues the ALJ failed to articulate legally sufficient reasons for 12 discounting his symptom testimony. P. Mem. at 27-32. Specifically, plaintiff 13 argues that in discounting his testimony, the ALJ improperly used boilerplate 14 language, selectively parsed the evidence supporting the RFC determination, and 15 improperly used evidence of plaintiff’s daily activities. Id. 16 1. Legal Standard 17 The court looks to Social Security Ruling (“SSR”) 16-3p for guidance on 18 evaluating plaintiff’s alleged symptoms. “Although SSRs do not have the same 19 force and effect as statutes or regulations, they are binding on all components of 20 the Social Security Administration.” Id. (citing 20 C.F.R. § 402.35(b)(1)). In 21 adopting SSR 16-3p, the SSA sought to “clarify that subjective symptom 22 evaluation is not an examination of an individual’s character.” Id. at *2. 23 [SSR 16-3p] makes clear what our precedent already required: that 24 assessments of an individual’s testimony by an ALJ are designed to 25 evaluate the intensity and persistence of symptoms after the ALJ finds 26 that the individual has a medically determinable impairment(s) that 27 could reasonably be expected to produce those symptoms, and not to 28 1 delve into wide-ranging scrutiny of the claimant’s character and 2 apparent truthfulness. 3 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (cleaned up). 4 To evaluate a claimant’s symptom testimony, the ALJ engages in “‘a two- 5 step analysis.’” Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) 6 (quoting Trevizo, 871 F.3d at 678). First, the ALJ must determine whether the 7 claimant produced objective medical evidence of an underlying impairment that 8 could reasonably be expected to produce the symptoms alleged. Id. Second, if the 9 claimant satisfies the first step, and there is no evidence of malingering, the ALJ 10 must evaluate the intensity and persistence of the claimant’s symptoms and 11 determine the extent to which they limit his ability to perform work-related 12 activities. Id. (citing SSR 16-3p). 13 In assessing intensity and persistence, the ALJ may consider: a claimant’s 14 daily activities; the location, duration, frequency, and intensity of the symptoms; 15 precipitating and aggravating factors; the type, dosage, effectiveness, and side 16 effects of medication taken to alleviate the symptoms; other treatment received; 17 other measures used to relieve the symptoms; and other factors concerning the 18 claimant’s functional limitations and restrictions due to the symptoms. Id. (citing 19 20 C.F.R. § 416.929; SSR 16-3p; Smolen v. Chater, 80 F.3d, 1273, 1283-84 & n.8 20 (9th Cir. 1996)). To reject the claimant’s subjective symptom statements at step 21 two, the ALJ must provide “specific, clear, and convincing” reasons, supported by 22 substantial evidence in the record, for doing so. Smolen, 80 F.3d at 1283-84. 23 2. Plaintiff’s Subjective Symptom Testimony 24 The ALJ summarized plaintiff’s testimony as follows. At the hearing, 25 plaintiff testified he experiences paranoia and difficulty in interacting with others, 26 causing him to isolate. AR at 21, 199, 243, 268. He reported that his 27 comprehension, concentration, and memory were impaired, and that he listens to 28 1 music as a distraction from his symptoms. AR at 21, 199, 268. He testified that 2 his symptoms are intermittent and that medication adjustments helped with 3 paranoia and auditory hallucinations. AR at 21, 50-52. 4 In his memorandum, plaintiff highlighted additional parts of his hearing 5 testimony. He testified his mother drove him to the hearing because he was 6 nervous. AR at 42. He has a ninth grade education, and although he attempted to 7 go back for a GED, he was prevented from doing so by the number of people on 8 the room. AR at 42-43. He last worked in janitorial services in 2015 and was a 9 supervisor for about eight or nine months, but the pressure and interactions with 10 people caused him to stop. AR at 43-44. 11 Plaintiff testified he lives with his mother and siblings, but stays in his room 12 during the day. AR at 45-46. He indicated he tries to help quickly with chores like 13 cleaning and doing dishes. AR at 46. He stated his anxiety and depression hold 14 him back from doing things, and his anxiety is triggered by public and small, 15 confined places with a lot of people. AR at 49-50. He was taking medication for 16 paranoia, schizophrenia, and anxiety. AR at 51. When he was in public, he 17 thought other people were talking about him, including the neighbors. Id. He 18 stated he puts on his music or the radio and stays in his room to handle his 19 thoughts. AR at 52, 57. He tried alcohol and marijuana for his issues, then tried 20 going to church, but became uncomfortable as he thought people were staring. AR 21 at 53-54. 22 Plaintiff stated he washes the dishes when no one is around. AR at 55. Even 23 at home, he was bothered by people in the house. Id. He stated his anxiety and 24 stress increases paranoia, although medications helped in part. AR at 55-56. He 25 did not engage in social activities with his siblings and going out in public made 26 him anxious and nervous. AR at 58, 60. He testified that his father would take 27 over his job at the janitorial company two to three times per week when he did not 28 1 understand what the supervisor was saying. AR at 60, 61. 2 3. ALJ’s Findings 3 At the first step for evaluating a claimant’s symptom testimony, the ALJ 4 found plaintiff’s medically determinable impairments could reasonably be 5 expected to cause the symptoms alleged. AR at 21. At the second step, the ALJ 6 found plaintiff’s testimony concerning the intensity, persistence, and limiting 7 effects of his symptoms was not entirely consistent with the medical evidence and 8 other evidence in the record. Id. Because plaintiff cleared step one and the ALJ 9 found no evidence of malingering, the ALJ’s reasons for discounting plaintiff’s 10 testimony had to be specific, clear, convincing, and supported by substantial 11 evidence. 12 Plaintiff first argues that the ALJ’s boilerplate language was insufficient to 13 discredit his testimony, and that “the ALJ must identify which testimony is not 14 credible and what evidence undermines the claimant’s complaints. P. Mem. at 28- 15 29. In discounting plaintiff’s testimony the ALJ first summarized the testimony 16 and then reviewed in fair detail the evidence he found inconsistent with that 17 testimony. AR at 21-25. While the ALJ’s analysis could have been more explicit 18 in some respects, the court finds that on balance the ALJ’s juxtaposition of 19 plaintiff’s testimony with the inconsistent medical and other evidence in the record 20 is sufficiently clear for the court to evaluate. See Lambert v. Saul, 980 F.3d 1266, 21 1277 (9th Cir. 2020) (ALJs are not required to “perform a line-by-line exegesis of 22 the claimant’s testimony, nor do [the regulations] require ALJs to draft 23 dissertations when denying benefits” (citation omitted)). 24 The ALJ gave three main reasons for discounting plaintiff’s symptom 25 testimony: (1) he exhibited a positive response to treatment; (2) his allegations 26 were inconsistent with his activities of daily living; (3) his testimony was not 27 entirely consistent with the medical evidence in the record. AR at 21-25. 28 1 a. Positive Response to Treatment 2 The first reason the ALJ articulated for discounting plaintiff’s symptom 3 testimony was his positive response to treatment, including medication 4 management. AR at 21-24; see Wellington v. Berryhill, 878 F.3d 867, 876 (9th 5 Cir. 2017) (“evidence of medical treatment successfully relieving symptoms can 6 undermine a claim of disability”). 7 The ALJ noted that while plaintiff alleged the onset of his disability in 8 January 2015, there were no records of treatment at that time. AR at 22. The 9 record showed plaintiff first received treatment for depression with feelings of 10 paranoia after having suicidal thoughts in late 2011. AR at 273. He participated 11 intermittently in follow-up care for schizophrenia, substance-induced psychotic 12 disorder, and cannabis dependence in early partial remission. AR at 22 (citing AR 13 at 291, 313, 316, 363). Treatment records showed plaintiff felt better on 14 medication, and that his delusions, hallucinations, and mood were controlled. AR 15 at 295-96, 298, 312, 318. But plaintiff stopped treatment around 2013 and did not 16 resume until 2017, when he experienced increased paranoia after having stopped 17 taking his medication years earlier. AR at 22, 318, 354, 359. 423, 427-28. In 18 2017, plaintiff was reportedly anxious appearing with some paranoia and exhibited 19 poor eye contact. AR at 350. Although his thought processes were mostly linear 20 and logical, he denied having hallucinations or ideation, and showed fair judgment 21 and insight. AR at 421. When plaintiff restarted his medications in May 2017, he 22 reported less stress, better sleep, and lack of side effects. AR at 22, 348, 418. 23 Compared to prior visits, he appeared less anxious and less easily distracted. AR at 24 348, 418. He was reportedly fully oriented with normal speech, linear and logical 25 thoughts, no hallucinations or ideation, and still showed fair judgment and insight. 26 AR at 346, 348, 416-18. Records indicate continued improvement with treatment 27 throughout the rest of 2017. AR at 22, 383-431. For instance, medical records 28 1 show plaintiff was stable, without signs of psychosis, and he reported feeling 2 better, more active, and still without ideation. AR at 408-10. 3 Records from throughout 2018 show stable functioning and positive 4 response to treatment. AR at 23, 390-406. Plaintiff was cooperative with 5 treatment, able to help his mother, denied having ideation, and noted no significant 6 complaints or abnormalities. AR at 395, 402-06. Despite some evidence of being 7 somewhat withdrawn, irritable, and having decreased concentration at times, 8 plaintiff was “doing well” on his medications. AR at 397-99. Plaintiff also kept 9 busy doing chores for his mother, reported being stable over the past several 10 months, and denied ideation. AR at 395. 11 Records from July 2019 document plaintiff denied hearing voices but was 12 observed talking to himself throughout the visit, which prompted an adjustment in 13 his medication. AR at 23, 385. After the medication adjustment, plaintiff felt 14 more relaxed and was sleeping better, denying any mania, panic attacks, ideation, 15 or symptoms of obsession or compulsion, and attended appointments on his own. 16 AR at 23, 374, 433. He had been overall stable on medication in the preceding 17 several years, responded positively to medication adjustments, and was not 18 experiencing hallucinations. AR at 23-24, 432-33, 435. Additionally, at the 19 hearing, plaintiff testified his symptoms were intermittent and that since 20 medication adjustments, he no longer experienced significant paranoia or auditory 21 hallucinations. AR at 50-52. 22 Although records from 2019 show plaintiff had ongoing complaints 23 regarding his mental health, he exhibited a positive responses to treatment and a 24 level of stability appropriate for outpatient care. AR at 23 (citing AR at 381, 384, 25 436). The court will not second-guess the ALJ’s determination here that, taking all 26 of the objective medical evidence into account, plaintiff’s overall mental condition 27 and improvements with medication contradicted his claims of incapacity. See 28 1 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is 2 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that 3 must be upheld.” (citation omitted)). 4 Accordingly, the court finds the evidence of plaintiff’s positive response to 5 treatment was a clear and convincing reason to discount his testimony. See Celaya 6 v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003) (ALJ’s finding that symptoms were 7 controlled was clear and convincing reason to reject plaintiff’s testimony). 8 b. Inconsistencies With Activities of Daily Living 9 The ALJ next found that plaintiff’s allegations of debilitation were 10 inconsistent with his activities of daily living. AR at 22-25; see Morgan v. 11 Comm’r, 169 F.3d 595, 600 (9th Cir. 1999) (a plaintiff’s ability “to spend a 12 substantial part of his day engaged in pursuits involving the performance of 13 physical functions that are transferable to a work setting” may be sufficient to 14 discredit him). But plaintiff does not need to be “utterly incapacitated,” and “the 15 mere fact a [plaintiff] has carried on certain daily activities, such as grocery 16 shopping, driving a car, or limited walking for exercise, does not in any way 17 detract from her credibility as to her overall disability.” Fair v. Bowen, 885 F.2d 18 597, 603 (9th Cir. 1989); see Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 19 2001). 20 Here, plaintiff’s allegations of disability concern limitations caused by his 21 anxiety, paranoia, schizophrenia, and depression. AR at 75, 79-80. He has 22 difficulty staying focused, interacting with others, and being in public. Id. 23 Plaintiff argues that he need not be “utterly incapacitated” to be disabled. P. Mem. 24 at 31 (citing Fair, 885 F.2d at 603). But engaging in daily activities that are 25 incompatible with the severity of symptoms alleged can support an adverse 26 credibility determination. See, e.g., Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 27 2007); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). 28 1 The ALJ generally identified plaintiff’s daily activities that would be 2 transferrable to the work environment. “[I]f a claimant engages in numerous daily 3 activities involving skills that could be transferred to the workplace, the ALJ may 4 discredit the claimant’s allegations upon making specific findings relating to those 5 activities.” Burch, 400 F.3d at 681 (citations omitted). The ALJ specifically 6 reasoned that plaintiff’s purported “difficulty interacting with others and reports 7 that he prefers to isolate himself” (AR at 207) were inconsistent with him living 8 with family members without reported conflict, being able to drive himself to 9 appointments that he attended alone, and his ability to run errands in public. AR at 10 24, 366. Plaintiff’s alleged difficulties with comprehension and sustained focus 11 contradicted his admission of playing card games online for up to two hours at a 12 time, as well as completing crossword puzzles. AR at 47-48, 57-58. He was also 13 able to do laundry, prepare food, drive, and help his mother with chores around the 14 house. AR at 46, 366, 395. Accordingly, the inconsistency between plaintiff’s 15 activities and his claimed symptoms was another clear and convincing reason for 16 discounting plaintiff’s testimony. 17 c. Inconsistencies With Medical Evidence 18 The third reason the ALJ gave for discounting plaintiff’s symptom testimony 19 that his mental impairments cause him to be disabled was that his allegations of 20 debilitating symptoms are inconsistent with medical evidence in the record. AR at 21 21. Some of these noted inconsistencies were discussed above with respect to 22 plaintiff’s positive response to treatment. “While subjective pain testimony cannot 23 be rejected on the sole ground that it is not fully corroborated by objective medical 24 evidence, the medical evidence is still a relevant factor in determining the severity 25 of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 26 853, 857 (9th Cir. 2001). 27 In addition to reviewing the medical evidence, the ALJ identified specific 28 1 medical findings suggesting plaintiff’s limitations were less restrictive than he 2 alleged. For example, State agency medical expert Anna Franco, Psy. D. found on 3 October 26, 2017 that plaintiff had the ability to perform simple, repetitive work 4 without public contact, could sustain concentration, persistence, and pace in a usual 5 work setting with customary breaks, and could adapt accordingly. AR at 84. 6 Though this medical opinion is inconsistent with plaintiff’s testimony, the ALJ 7 found it consistent with other medical evidence that documents issues with 8 perception, mood, and anxiety, but shows plaintiff largely presented as alert and 9 cooperative with grossly intact thought processes, adequate focus and memory, 10 denied ideation, and was typically free of active hallucinations. AR at 25 (citing 11 AR at 346, 348, 350, 354-56, 373, 385, 388, 395, 404, 408, 410, 416-18, 420-21, 12 433-36). The ALJ also found Dr. Franco’s opinion consistent with plaintiff’s 13 activities of daily living. AR at 25 (citing AR at 47-48, 366). 14 The ALJ also considered the opinion of Dr. Bridges, a State agency 15 consultative examiner, although found her opinion less persuasive than Dr. 16 Franco’s. AR at 25-26. Dr. Bridges performed a psychiatric examination of 17 plaintiff on October 5, 2017. AR at 363-369. Plaintiff appeared tired or sedated 18 with decreased focus, but there was nothing unusual documented about his posture, 19 bearing, or hygiene, and he did not appear to be responding to internal stimuli. AR 20 at 366. He demonstrated grossly intact functioning and stated his medications 21 helped with his symptoms and sleep. AR at 365-68. Plaintiff showed no difficulty 22 interacting with clinic staff or the examining doctor, or with staying composed or 23 maintaining his temperament, and appeared intellectually and psychologically able 24 to perform his activities of daily living. AR at 366. 25 Accordingly, the ALJ’s reasons for discounting plaintiff’s symptom 26 testimony – positive response to treatment, inconsistencies with his activities of 27 daily living, and inconsistencies with the medical evidence – were clear and 28 1 convincing. 2 B. Any Error in Discounting Lay Witness Testimony Was Harmless 3 Plaintiff argues the ALJ improperly rejected the Third-Party Function Report 4 provided by plaintiff’s sister, Areli Hernandez. P. Mem. at 33-34; see AR at 5 219-25. 6 “[L]ay testimony as to a claimant’s symptoms or how an impairment affects 7 ability to work is competent evidence and therefore cannot be disregarded without 8 comment.” Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 9 quotation marks, ellipses, and citation omitted); see Smolen, 80 F.3d at 1288; see 10 also 20 C.F.R. § 404.1513(d)(4) (explaining that Commissioner will consider 11 evidence from “non-medical sources,” including “spouses, parents and other 12 caregivers, siblings, other relatives, friends, neighbors, and clergy,” in determining 13 how a claimant’s impairments affect his or her ability to work); 20 C.F.R. 14 § 416.913(d)(4) (same). The ALJ may only discount the testimony of lay 15 witnesses by providing specific “reasons that are germane to each witness.” 16 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1983); accord Lewis v. Apfel, 236 17 F.3d 503, 511 (9th Cir. 2001) (“Lay testimony as to a claimant’s symptoms is 18 competent evidence that an ALJ must take into account, unless he or she expressly 19 determines to disregard such testimony and gives reasons germane to each witness 20 for doing so.”). A lay witness is “not disqualified from rendering an opinion” on 21 how a plaintiff's condition affects his or her ability to work simply because that 22 witness is not a vocational or medical expert. Bruce v. Astrue, 557 F.3d 1113, 23 1116 (9th Cir. 2009). 24 Plaintiff’s sister completed a third party function report on August 25, 2017. 25 AR at 219-25. Ms. Hernandez indicated that plaintiff’s paranoia and anxiety “are 26 too overwhelming for him to have social interactions with people and at places 27 outside of the home.” AR at 219. She reported plaintiff at times sleeps for many 28 1 hours and at other times does not sleep for days, and always wears headphones 2 listening to music, “even to sleep.” AR at 220-23. Regarding the ability to leave 3 the home, Ms. Hernandez noted plaintiff requires a companion because he “is not 4 comfortable stepping out alone.” AR at 222. Ms. Hernandez also noted plaintiff is 5 able to dress himself but does not consistently upkeep his personal hygiene without 6 reminders. AR at 220. According to Ms. Hernandez, plaintiff used go out 7 “shopping with friends and left the house daily,” but he now “does not go outside 8 except to doctors appointments.” AR at 220, 222. Plaintiff cares for his fish with 9 the assistance of his mother, and waters the plants, sweeps, and washes dishes 10 when asked. AR at 220-21. Additionally, plaintiff is afraid to speak or approach 11 people, has difficulty listening to others because of his anxiety, and his ability to 12 follow instructions is dependent upon his level of anxiety and mood. AR at 224. 13 Ms. Hernandez also noted plaintiff can drive “but [is] fearful of police.” AR at 14 225. 15 The ALJ provided two reasons for discounting Ms. Hernandez’s statements: 16 (1) she was not a medical expert and her statements are less persuasive than the 17 opinions of medical experts; and (2) her statements were not fully supported by the 18 evidence in the record. AR at 26. 19 The Regulations specifically instruct all ALJs to consider testimony from 20 “non-medical sources” who have an opportunity to observe the claimant. See 20 21 C.F.R. §§ 404.1513(d)(4), 416.913(d)(4). The ALJ discounted the statements 22 because Ms. Hernandez was not a medical expert. Id. But Ms. Hernandez did not 23 need to be an expert to render an opinion as to how her brother’s conditions 24 affected his ability to perform basic work activities. See Bruce v. Astrue, 557 F.3d 25 1113 (9th Cir. 2009) (finding plaintiff’s wife was not disqualified from rendering 26 an opinion although she was not a vocational expert). “Friends and family 27 members [are] in a position to observe a claimant’s symptoms and daily activities 28 1 are competent to testify as to his or her condition.” Valentine v. Comm’r Soc. Sec. 2 Admin., 574 F.3d 685, 694 (9th Cir. 2009); see Diedrich v. Berryhill, 874 F.3d 634, 3 640 (9th Cir. 2017) (a personal relationship with the claimant is not a valid reason 4 to discount the witnesses observations); Smolen v. Chater, 80 F.3d 1273, 1289 (9th 5 Cir. 1996) (“The fact that a lay witness is a family member cannot be a ground for 6 rejecting his or her testimony. To the contrary, testimony from lay witnesses who 7 see the claimant every day is of particular value; such lay witnesses will often be 8 family members”). As such this was not a valid reason for discounting Ms. 9 Hernandez’s statements. 10 The ALJ’s second reason for discounting Ms. Hernandez’s statements was 11 that they were “not fully supported by the evidence of record, which documents 12 greater medical functioning.” AR at 26. An ALJ may reject lay testimony if it is 13 inconsistent with medical evidence, but not if it is simply unsupported by medical 14 evidence. Compare Lewis, 236 F.3d at 511 (“One reason for which an ALJ may 15 discount lay testimony is that it conflicts with medical evidence.”) (citing Vincent 16 v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984), with Diedrich v. Berryhill, 874 17 F.3d 634, 640 (9th Cir. 2017) (a lack of support from the medical evidence is not a 18 proper basis for disregarding lay observations); Bruce, 577 F.3d at 1116 (same). It 19 is unclear which the ALJ was saying here. The ALJ said Ms. Hernandez’s 20 statements were not supported by the evidence, but also that the record documents 21 greater functioning, which indicates a finding of a conflict. And indeed, as 22 discussed, the ALJ detailed the evidence that conflicts with Ms. Hernandez’s 23 statements, which substantially track those of plaintiff. 24 Even assuming the ALJ improperly discounted Ms. Hernandez’s statements, 25 where third party testimony “does not describe any limitations not already 26 described by the claimant, and the ALJ’s well-supported reasons for rejecting the 27 claimant’s testimony apply equally well to the lay witness testimony,” any error by 28 1 the ALJ in discounting the lay witness testimony is harmless. Molina v. Astrue, 2 674 F.3d 1115, 1117 (9th Cir. 2012). That is the case here, where plaintiff’s 3 sister’s did not describe any additional limitations plaintiff may suffer. 4 Accordingly, any error in discounting the lay witness statements was harmless 5 because the ALJ articulated well-supported reasons for discounting plaintiff’s own 6 symptom testimony. 7 C. The ALJ’s RFC Determination Was Supported by Substantial Evidence 8 Plaintiff argues the ALJ erred in assessing his RFC. P. Mem. at 34-37. 9 First, he contends the ALJ failed to properly consider plaintiff’s symptom 10 testimony and his sister’s similar statements about plaintiff’s symptoms in 11 determining plaintiff’s RFC, given the ALJ’s discounting of that testimony. As 12 discussed in detail above, the ALJ properly considered plaintiff’s testimony in 13 formulating the RFC, and therefore this argument is unpersuasive. Second, 14 plaintiff argues the ALJ failed to consider substantial other evidence in making his 15 RFC determination. Plaintiff particularly contends the RFC does not sufficiently 16 reflect plaintiff’s limited ability to interact with others, and does not address his 17 limited education and special education. 18 RFC is what one can “still do despite [his or her] limitations.” 20 C.F.R. 19 §§ 404.1545(a)(1), 416.945(a)(1). The ALJ reaches an RFC determination by 20 reviewing and considering all of the relevant evidence, including non-severe 21 impairments. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). Among the evidence an 22 ALJ relies on in an RFC assessment is medical evidence and opinions. 20 C.F.R. 23 § 404.1545(a)(3). An ALJ will consider the persuasiveness of the medical 24 opinions and findings based on five factors: (1) supportability; (2) consistency; (3) 25 relationship with the claimant; (4) specialization; and (5) other factors that tend to 26 support or contradict the medical opinion. 20 C.F.R. § 404.1520c(b)-(c); see 27 Sylvester G. v. Saul, 2021 WL 2435816, at *2 (C.D. Cal. June 15, 2021). The most 28 1 important of these factors are supportability and consistency. 20 C.F.R. 2 § 404.1520c(b)(2). The ALJ may, but is not required to, explain how she or he 3 considered the other three factors. Id. 4 The ALJ found plaintiff had the following nonexertional limitations: 5 plaintiff can perform tasks of nature that can be learned within a short 6 demonstration period of approximately 30 days, with no more than frequent 7 changes to the daily workplace tasks and duties; he can work primarily with things, 8 rather than with people, such that the workplace contact with others is only on an 9 occasional basis; and he can maintain concentration, pace, and persistence for two 10 hours at a time before taking regularly scheduled breaks, and returning to work 11 throughout the workday. AR at 20-21. 12 Plaintiff argues the ALJ failed to address his limited education and special 13 education by limiting the math or reading level required of any jobs, but does not 14 further explain what he means by this. P. Mem. at 36. The RFC formulated by the 15 ALJ limits plaintiff to tasks that can be learned within a short demonstration period 16 of approximately 30 days. AR at 20. Plaintiff does not explain how this is 17 inadequate in light of plaintiff’s education, nor does he cite any authority that 18 would require the ALJ to set math or reading level limitations here. Accordingly, 19 with this argument plaintiff fails to demonstrate the ALJ erred in his RFC 20 determination. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (where 21 argument is “difficult to decipher” and unsupported by authority, court “will not 22 manufacture arguments for an appellant”). 23 As for plaintiff’s argument with respect to his ability to interact with others, 24 there was substantial evidence to support ALJ’s determination that plaintiff could 25 have occasional workplace contact with others. In reaching the RFC 26 determination, the ALJ found the opinion of State agency medical expert Dr. 27 Franco to be persuasive, and the opinion of independent consultative examiner Dr. 28 1 Bridges less persuasive. AR at 25. Dr. Franco concluded that plaintiff was not 2 significantly limited in his ability to carry out short and simple instructions, 3 perform activities within a schedule, sustain an ordinary routine, make simple 4 work-related decisions, and complete a normal workday without interruptions from 5 psychologically based symptoms and to perform at a consistent pace without an 6 unreasonable number of rest periods. AR at 83. The doctor found plaintiff was 7 moderately limited in his ability to carry out detailed instructions, maintain 8 attention for extended periods, and work in coordination or in proximity with 9 others. AR at 83. With respect to plaintiff’s social integration limitations, Dr. 10 Franco concluded that plaintiff was not significantly limited in his ability to ask 11 simple questions or for assistance, accept instructions and respond appropriately to 12 criticism from supervisors, and maintain socially appropriate behavior. AR at 84. 13 Dr. Franco found moderate limitations in plaintiff’s ability to interact with the 14 general public and get along with coworkers or peers. Id. 15 The ALJ found Dr. Franco’s opinion was supported by an accompanying 16 discussion of the evidence, consistent with the evidence of record documenting 17 issues with perception, mood, and anxiety, but indicating that the claimant largely 18 presented as alert and cooperative with grossly intact thought processes, adequate 19 focus and memory, denied ideation, and was typically free of active hallucinations. 20 AR at 25 (citing AR at 346, 348, 350, 354-56, 373, 385, 388, 395, 404, 408, 410, 21 416-18, 420-21, 433-36). Dr. Franco’s opinion was also consistent with plaintiff’s 22 activities of daily living, such as his ability to play video games for extended 23 periods, watch television and YouTube, complete crossword puzzles, and attend to 24 his personal care and perform basic household chores. AR at 47-48, 57-58. 25 Consistent with Dr. Franco’s finding that plaintiff was moderately limited in his 26 ability to interact with the public and get along with coworkers, the ALJ limited 27 plaintiff to only occasional contact with others, but did not prohibit all public 28 1 contact given plaintiff’s activities in the community including shopping and buying 2 fast food by himself. AR at 25, 84, 366. 3 Additionally, the ALJ considered the opinion of Dr. Bridges, but found it 4 less persuasive than Dr. Franco’s assessment. AR at 25. Dr. Bridges performed a 5 psychiatric evaluation of plaintiff and concluded that he had no limitation 6 performing simple and repetitive tasks or detailed and complex tasks, and no 7 difficulty performing work activity in a consistent basis without special or 8 additional supervision. AR at 369. Further, plaintiff had no limitation completing 9 a normal workday or workweek, or accepting instructions from supervisors, 10 interacting with coworkers and the public, and no difficulty handling the usual 11 stresses, changes, and demands of gainful employment. Id. Although Dr. Bridges 12 was as able to review some of the plaintiff’s treatment notes, the ALJ discounted 13 her opinion because “she did not have the opportunity to review the bulk of the 14 record to contextualize her findings, and had to rely heavily on her observations of 15 [plaintiff’s] behavior and functioning during her October 2017 evaluation.” AR 16 at 26. 17 The ALJ properly evaluated the medical evidence under the regulations. 18 The ALJ considered all of the medical evidence and opinions, and based his 19 assessment on the five factors listed in the regulations. The ALJ properly 20 explained how he found Dr. Franco’s opinion to be more persuasive than Dr. 21 Bridges’, noting that Dr. Franco provided evidentiary support for her opinions 22 consistent with the medical record, and Dr. Bridges did not have an opportunity to 23 review the entire record. The RFC determination was therefore supported by a 24 proper evaluation of medical opinions, including with respect to plaintiff’s ability 25 to interact with others. 26 Plaintiff nonetheless argues the ALJ’s limitation to occasional workplace 27 contact with others failed to account for all of plaintiff’s limitations in interacting 28 1 with people, including a claimed inability to interact with a supervisor when 2 necessary. P. Mem. at 36-37. But nothing in the record warrants a conclusion that 3 plaintiff completely lacked any faculties to interact with a supervisor, and plaintiff 4 cites nothing apart from plaintiff’s own testimony that was properly discounted. 5 Consistent wit Dr. Franco’s opinion, the ALJ found plaintiff to have no more than 6 a moderate limitation in interacting with others. AR at 19. The ALJ reasoned that 7 although plaintiff experienced paranoia and preferred to be alone, records showed 8 he was usually cooperative. AR at 24, 433. He was able to help with chores, and 9 lived with multiple family members without noted conflict. AR at 404, 406. The 10 ALJ noted plaintiff went out into the community independently to run errands, go 11 shopping, buy fast food, drive, and attend medical appointments. AR at 24, 366. 12 Accordingly, the ALJ incorporated these limitation in plaintiff’s RFC, namely, that 13 “he can work primarily with things, rather than with people, such that the 14 workplace contact with others is only on an occasional basis.” AR at 20. This 15 determination was supported by substantial evidence. 16 As such, the ALJ did not err in his RFC determination. 17 D. The ALJ Did Not Err at Step Five 18 Plaintiff’s final argument is that the ALJ erred at step five in relying on the 19 testimony of the vocational expert (“VE”). P. Mem. at 37. Plaintiff argues the 20 hypothetical question posed to the VE did not encompass or reflect all of plaintiff’s 21 limitations. 22 At step five, the burden shifts to the Commissioner to show that the claimant 23 retains the ability to perform other gainful activity. Lounsburry v. Barnhart, 468 24 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a claimant is not 25 disabled at step five, the Commissioner must provide evidence demonstrating that 26 other work exists in significant numbers in the national economy that the claimant 27 can perform, given his or her age, education, work experience, and RFC. 20 28 1 C.F.R. § 404.1512(b)(3). The Commissioner may satisfy this burden through the 2 testimony of a VE. Lounsburry, 468 F.3d at 1114. “If a vocational expert’s 3 hypothetical does not reflect all the claimant’s limitations, then the expert’s 4 testimony has no evidentiary value to support a finding that the claimant can 5 perform jobs in the national economy.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th 6 Cir. 2012) (internal quotation marks and citation omitted); see also Edlund v. 7 Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001) (same and citing additional 8 authority). 9 In line with the RFC determination that plaintiff is limited to occasional 10 workplace contact with others, the first hypothetical the ALJ posed to the VE 11 limited contact with others on an occasional basis, as well as the other limitations 12 the ALJ ultimately included in his RFC assessment. AR at 65. The VE testified 13 that an individual with these limitations could not perform plaintiff’s past work as 14 a janitor, but could perform other work for which there are jobs in significant 15 numbers in the national economy, including cleaner II, industrial cleaner, and 16 housekeeper/laundry aide. AR at 65-66. 17 Plaintiff argues the ALJ should not have relied on this testimony, but this 18 argument is based on plaintiff’s disagreement with the RFC determination. As 19 discussed above, the RFC assessment is supported by substantial evidence. As 20 such, the ALJ did not err at step five. 21 // 22 // 23 24 25 26 27 28 1 V. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 || AFFIRMING the decision of the Commissioner denying benefits, and dismissing 5 || the complaint with prejudice. 6 ep 8 | DATED: March 30, 2023 SHERI PYM 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23