Gardner v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5

9 Tina Gardner, No. CV-22-00321-TUC-LCK

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 14 Defendant. 15 Plaintiff Tina Gardner filed this action pursuant to 42 U.S.C. § 405(g) seeking 16 judicial review of a final decision by the Commissioner of Social Security (Commissioner). 17 (Doc. 1.) Before the Court are Gardner's Opening Brief, Defendant’s Responsive Brief, 18 and a Reply. (Docs. 16-18.) The parties have consented to Magistrate Judge jurisdiction. 19 (Doc. 13.) Based on the pleadings and the Administrative Record, the Court remands this 20 matter for further proceedings. 21 FACTUAL AND PROCEDURAL HISTORY 22 Plaintiff filed an application for Disability Insurance Benefits (DIB) and 23 Supplemental Security Income (SSI) in August 2019. (Administrative Record (AR) 305, 24 309.) She alleged disability from April 1, 2017. (AR 305, 309.) She was born in July 1966, 25 making her 50 years of age at the onset date of her alleged disability. (AR 305.) She stopped 26 working because she couldn't breathe well or easily move around. (AR 77.) In the year 27 prior to Plaintiff stopping work, she was employed in customer service at a call center. (AR 28 1 345.) For the prior 15 years, she worked as a veterinary assistant at an animal hospital. (AR 2 345, 356.) 3 Plaintiff's application was denied upon initial review (AR 93-112) and on 4 reconsideration (AR 113-52). A telephonic hearing was held on April 12, 2021 (AR 73- 5 92), and a supplemental telephonic hearing was held on August 25, 2021 (AR 47-72). The 6 ALJ then found Plaintiff not disabled. (AR 14-24.) The ALJ determined Plaintiff had 7 severe impairments of deep vein thrombosis (DVT) with pulmonary embolism in March 8 2020; status post breast cancer and bilateral mastectomies with failed left reconstruction; 9 bilateral upper extremity lymphedema; and obesity. (AR 17.) The ALJ concluded Plaintiff 10 had the Residual Functional Capacity (RFC) to perform light work with no exposure to 11 dangerous equipment. (AR 19.) He concluded at Step Four that Plaintiff could perform her 12 past work as a customer service representative. (AR 23.) The Appeals Council denied 13 review of the ALJ's decision. (AR 1.) 15 The Commissioner employs a five-step sequential process to evaluate SSI and DIB 16 claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460- 17 462 (1983). To establish disability the claimant bears the burden of showing she (1) is not 18 working; (2) has a severe physical or mental impairment; (3) the impairment meets or 19 equals the requirements of a listed impairment; and (4) claimant’s RFC precludes her from 20 performing her past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the 21 burden shifts to the Commissioner to show that the claimant has the RFC to perform other 22 work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 23 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant 24 “disabled” or “not disabled” at any point in the five-step process, she does not proceed to 25 the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 26 “The ALJ is responsible for determining credibility, resolving conflicts in medical 27 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 28 Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings 1 of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 2 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a 3 preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. 4 Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to 5 deny benefits only “when the ALJ’s findings are based on legal error or are not supported 6 by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 7 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve 8 conflicts in the evidence, and if the evidence can support either outcome, the court may not 9 substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson 10 v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 11 1190, 1198 (9th Cir. 2004). The Commissioner’s decision, however, “cannot be affirmed 12 simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 13 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 14 1989)). Reviewing courts must consider the evidence that supports as well as detracts from 15 the Commissioner’s conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 17 Plaintiff alleges the ALJ committed four errors: (1) the ALJ's finding that Plaintiff's 18 COVID-19 infection failed to satisfy the duration requirement for a severe impairment was 19 not supported by substantial evidence; (2) the ALJ's reasons for adopting Dr. Goldstein’s 20 opinion were not supported by substantial evidence; (3) the ALJ's reasons for rejecting Dr. 21 D’Souza’s opinion were not supported by substantial evidence; and (4) the ALJ failed to 22 provide germane reasons to reject a lay witness statement. 23 COVID-19 24 The ALJ acknowledged that Plaintiff was diagnosed with COVID-19 on January 7, 25 2021, with some residual shortness of breath. (AR 17.) He concluded that it was not "a 26 severe impairment of the requisite 12-month duration," citing Plaintiff's testimony that "she 27 'kind of' recovered from COVID-19 and that she still had breathing problems only 28 secondary to viral pneumonia." (Id.) 1 Plaintiff argues that record evidence establishes Plaintiff's COVID-19 symptoms 2 could be expected to last 12 or more months. In support she cites a November 10, 2021, 3 record from pulmonologist Dr. Ahmed. He assessed Plaintiff with dyspnea (shortness of 4 breath), sleep apnea, and COVID-19 infection, stating "symptoms overall favors – post 5 covid long hauler." (AR 31.) Dr. Ahmed reviewed a November 3, 2021, pulmonary 6 function test, which documented mildly reduced diffusion capacity. (AR 33.) 7 Plaintiff argues that this Court may consider the November 2021 medical evidence 8 in determining whether the ALJ's September 2021 decision was supported by substantial 9 evidence, because she submitted it to the Appeals Council when seeking review. If the 10 Appeals Council considers new evidence when reaching a conclusion on whether to review 11 the ALJ's decision, the district court also should consider that evidence. Brewes v. Comm'r 12 of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). Defendant does not dispute 13 Plaintiff's contention that Brewes directs the Court to consider the November 2021 14 evidence. (Doc. 17 at 5.) The Court finds, however, that Brewes does not control because 15 the Appeals Council did not consider the evidence, finding it did not relate to the period on 16 or before the ALJ's September 2021 decision. (AR 2.) Instead, the Court must assess if the 17 Appeals Council should have considered the new evidence because, if so, the Court is 18 directed to remand the matter for the ALJ to reconsider his decision based on the additional 19 evidence. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir. 2011). If 20 the evidence from Dr. Ahmed related to the pre-September 2021 period, the Appeals 21 Council should have considered it. The Ninth Circuit has found, "it is clear that reports 22 containing observations made after the period for disability are relevant to assess the 23 claimant's disability." Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) ("It is obvious 24 that medical reports are inevitably rendered retrospectively and should not be disregarded 25 solely on that basis.") (citing Kemp v. Weinberger, 522 F.2d 967, 969 (9th Cir. 1975); Bilby 26 v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985)). 27 Plaintiff was diagnosed with COVID-19 in January 2021. (AR 1491.) During the 28 same hospital visit, she was diagnosed with viral pneumonia. (AR 1491, 1497.) According 1 to the CDC, SARS-CoV-2 (the virus that causes COVID-19) is a common cause of viral 2 pneumonia.1 At the April 2021 hearing, when asked if she had recovered from COVID-19, 3 Plaintiff testified:

4 Kind of. I still believe that I am having some breathing problems due to the scarring in the lungs. I have viral pneumonia. I still have a hard time 5 breathing when I move around a lot. I get up to go to the restroom and come back and I have to take a break, rest for awhile before I can even think about 6 doing anything. And I believe that is part of the cause. 7 (AR 79.) Thus, in April, Plaintiff confirmed that she was continuing to experience 8 breathing limitations from her January illness. The ALJ suggested that Plaintiff's breathing 9 problems were secondary only to pneumonia. (AR 17.) To the contrary, Plaintiff's 10 testimony indicates her ongoing breathing problems were due, in part, to COVID-19. And 11 it is evident that the pneumonia was a result of that virus. At the August 2021 hearing, 12 Plaintiff testified that her symptoms had stayed the same or progressed a bit. (AR 51.) 13 A diagnosis and functional testing related to shortness of breath and fatigue are 14 significant in this case. The testifying medical expert, Dr. Goldstein, did not include those 15 symptoms in his RFC finding because there was no pulmonary function test or causative 16 finding for the symptoms. (AR 55-58.) The ALJ adopted Dr. Goldstein's RFC finding, 17 which did not account for those symptoms. Less than two months later, a pulmonologist 18 surmised that Plaintiff was suffering from long COVID, which may contribute to shortness 19 of breath and fatigue. Given the absence of record evidence to the contrary, Dr. Ahmed's 20 opinion may have been sufficient to establish that diagnosis by a preponderance of the 21 evidence, the standard applicable to the ALJ's findings. 20 C.F.R. §§ 404.953(a), 22 416.953(a). 23 Long COVID is an impairment relevant to Plaintiff's ongoing fatigue and breathing 24 problems. Additionally, the pulmonary function test demonstrated some deficiency. As 25 those symptoms recur throughout the record, the November 2021 records are relevant to 26 the period prior to the ALJ's decision. If the ALJ accepted Dr. Ahmed's diagnosis, that 27

28 1 https://www.cdc.gov/pneumonia/causes.html. Last reviewed on September 18, 2023. 1 would demonstrate COVID-19 lasting for ten months, and the ALJ could determine it was 2 expected to last for 12 or more months (or obtain additional evidence to evaluate if the 3 impairment had in fact lasted 12 months). See 20 C.F.R. §§ 404.1509, 416.909 (setting 4 durational requirement that impairment "must have lasted or must be expected to last for a 5 continuous period of at least 12 months."). Because the November 2021 evidence is new 6 and relevant to Plaintiff's period of disability, the Appeals Council should have considered 7 it when deciding whether to review the ALJ's decision. Taylor is factually analogous 8 because that case was remanded to the ALJ, in part, because the Appeals Council failed to 9 consider new evidence that post-dated the ALJ's decision, but which the Ninth Circuit 10 concluded related to the relevant period. 659 F.3d at 1233. Therefore, the Court will not 11 evaluate whether substantial evidence supported the ALJ's decision regarding COVID-19. 12 Instead, the Court must remand this matter to the ALJ to consider that evidence. See id. 13 Medical Opinions 14 The regulations governing cases filed after March 27, 2017, such as this one, 15 provide that an ALJ will consider all medical opinions and, at a minimum, articulate how 16 the ALJ evaluated the opinions' supportability and consistency. 20 C.F.R. §§ 404.1520c(a) 17 & (b), 416.920c(a) & (b). "Even under the new regulations, an ALJ cannot reject an 18 examining or treating doctor's opinion as unsupported or inconsistent without providing an 19 explanation supported by substantial evidence." Woods v. Kijakazi, 32 F.4th 785, 792 (9th 20 Cir. 2022). "The more relevant the objective medical evidence and supporting explanations 21 presented and the more consistent with evidence from other sources, the more persuasive 22 a medical opinion or prior finding." Machelle H. v. Kijakazi, No. 1:20-CV-00357-CWD, 23 2021 WL 4342313, at *7 (D. Idaho Sept. 22, 2021). "In sum, the [ALJ] must explain his 24 reasoning and specifically address how he considered the supportability and consistency 25 of the opinion, and his reasoning must be free from legal error and supported by substantial 26 evidence." Id. 27 28 1 Dr. Goldstein 2 The ALJ asked neurologist Dr. Goldstein to testify at the supplemental hearing as 3 an independent medical expert. The doctor opined that Plaintiff had the following 4 medically determinable physical impairments, breast cancer with chemotherapy and 5 reconstructive surgery, with wound infections; DVT; use of Eliquis; and obesity. (AR 54.) 6 He also acknowledged there was record evidence that Plaintiff experienced swelling and 7 lymphedema of the upper extremities. (AR 61-62.) He stated that Plaintiff elevating her 8 arms would not be helpful for lymphedema, although raising ones' arms above the heart 9 can help reduce swelling from edema.2 (AR 62-63.) The doctor stated that Plaintiff's reports 10 of severe fatigue and shortness of breath could have various causes, including lung damage 11 sustained from pulmonary emboli, deconditioning, or cardiac arrhythmia. (AR 55, 58.) He 12 stated that the record did not contain a pulmonary function test or other medically 13 determined causation for those symptoms. (AR 55-56, 57-58.) Dr. Goldstein opined that 14 Plaintiff was limited to light work, and she should not be near dangerous equipment due to 15 her prescribed blood thinner. (AR 56.) The doctor stated that the record did not contain 16 quantitative information for him to assess how much rest, if any, Plaintiff may need per 17 hour. (AR 64-65.) 18 The ALJ stated that he adopted Dr. Goldstein's opinion because it was "the most 19 comprehensive opinion subject to examination by counsel"; he is a specialist familiar with 20 the Social Security policies; he reviewed the entire documentary record; and he provided a 21 detailed explanation with record citations to support his opinion.3 (AR 22.) Plaintiff argues 22 that it was improper for Dr. Goldstein not to consider her shortness of breath and fatigue 23 24 2 Plaintiff argues that the ALJ erred in not including Dr. Goldstein's implicit opinion that she had a limited ability to elevate her arms. Dr. Goldstein did not find Plaintiff had a 25 limitation in raising her arms. He testified only that elevating one's arms was not a remedy for lymphedema; therefore, it would not provide Plaintiff relief. (AR 62-63.) 26 3 In addition to supportability, the ALJ was obligated to discuss whether Dr. 27 Goldstein's opinion was consistent with other record evidence and failed to do so. (AR 20- 22.) Because Plaintiff did not raise this issue in her brief, the Court does not rely upon it in 28 ruling. However, upon remand, the ALJ must be cognizant of his obligation to explain the consistency and supportability of each medical opinion. 1 solely due to the absence of a pulmonary function test. And she contends there is not 2 substantial evidence to support the ALJ's adoption of Dr. Goldstein's opinion because he 3 failed to consider those symptoms. 4 In creating the RFC, the ALJ must consider limitations from impairments and 5 symptoms related to those impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). Dr. 6 Goldstein stated that he did not factor shortness of breath or fatigue into his opinion because 7 there was an absence of evidence tying it to a medically determinable impairment. (AR 55- 8 58.) He explained that a pulmonary function test would have revealed whether she 9 sustained functional damage from the pulmonary emboli she had experienced. (AR 55, 57- 10 58.) But he noted there were other possible explanations for those symptoms, including 11 deconditioning. (AR 55, 57.) Deconditioning is not an impairment relevant to the RFC. 12 Plaintiff argues that shortness of breath and fatigue were consistent not only with 13 her pulmonary emboli, but also long COVID and sleep apnea. As discussed above, Dr. 14 Goldstein considered the pulmonary emboli, but lacked sufficient evidence to link those 15 symptoms with that impairment. Plaintiff refers to numerous records mentioning sleep 16 apnea, but none include a diagnosis. The cited records discuss possible sleep apnea or are 17 from oncology visits documenting that Plaintiff reported a history of sleep apnea. (Doc. 16 18 at 7 (citing AR 610, 613, 624, 646, 767, 1485, 1516, 1519, 1655).) In December 2020, her 19 primary care doctor documented that Plaintiff never completed a sleep apnea exam. (AR 20 1622.) In sum, there is no direct evidence that Plaintiff was diagnosed with sleep apnea or 21 evaluated for how it impacted her functioning. Dr. Goldstein reviewed evidence of 22 Plaintiff's January 2021 COVID-19 diagnosis. But he did not possess evidence that it 23 evidenced an impairment expected to last 12 or more months, or that it was linked to any 24 functional limitations. Based on the evidence available to Dr. Goldstein and the ALJ, 25 Plaintiff has not demonstrated an absence of substantial evidence to support the ALJ's 26 adoption of Dr. Goldstein's opinion. But see supra note 3. 27 The Court is remanding this matter, however, for the ALJ to consider the evidence 28 of long COVID. The ALJ then will evaluate whether there is evidence that long COVID 1 was a medically determinable impairment of sufficient duration. And, if so, whether 2 Plaintiff experienced related limitations.4 This evaluation may require the ALJ to 3 reconsider Dr. Goldstein's testimony and Plaintiff's RFC. 4 Dr. D'Souza 5 On October 22, 2019, Dr. Netley D'Souza completed a Physical Medical Source 6 Statement indicating that he saw Plaintiff every one to two months. (AR 904.) He 7 diagnosed Plaintiff with breast cancer, DVT, and open wounds, with a fair to poor 8 prognosis. (Id.) Dr. D'Souza stated that Plaintiff had back pain, fatigue, shortness of breath, 9 and an open wound on her breast. (Id.) His clinical findings to support his opinion included 10 limited back movement (30°), open wound with drainage, swelling of upper extremities, 11 and shortness of breath. (Id.) The doctor indicated ongoing hyperbaric oxygen treatment, 12 wound vacuum, and antibiotics, as well as planned surgery, and a treatment side effect of 13 dizziness and/or weakness. (Id.) 14 Dr. D'Souza opined that Plaintiff could walk at most 1 block without resting; sit for 15 20 minutes at a time; stand for 10 minutes at a time; and sit and stand/walk for less than 16 two hours each per workday. (AR 905.) He stated that she required the ability to shift 17 positions at will and take unscheduled breaks for 10-15 minutes per hour due to muscle 18 weakness, chronic fatigue, and pain. (Id.) Due to leg swelling, the doctor determined that 19 Plaintiff needed to elevate her legs 75% of the time if she was working in a seated position. 20 (AR 906.) The doctor limited her to never lifting or carrying any weight, crouching, or 21 climbing stairs or ladders; and rarely twisting or stooping. (Id.) Dr. D'Souza limited 22 Plaintiff to 10% of the day spent grasping/turning/twisting with her hands, fine finger 23 manipulations, and reaching overhead; and 25% of the day spent reaching in front of her 24 body. (Id.) He concluded Plaintiff would be off task 25% or more of a typical workday due 25 to symptoms severe enough to interfere with her attention and concentration. (AR 907.) 26 4 For consideration on remand, there is evidence in the record of lung damage prior 27 to Plaintiff's COVID-19 diagnosis. (AR 1530 (June 5, 2020, CT scan revealed mild scarring in lung bases); AR 1600 (September 26, 2020, CT scan showed changes in lung bases 28 compatible with scarring).) After her diagnosis, on March 30, 2021, a CT scan showed minimal subpleural fibrotic changes to the periphery of the left lung. (AR 1638.) 1 Due to anxiety and fatigue, he found Plaintiff incapable of tolerating even low stress work. 2 (Id.) Because Plaintiff was likely to experience good and bad days, the doctor estimated 3 Plaintiff would miss more than four days per month due to her impairments. (Id.) He 4 reported that Plaintiff experienced severe psychological limitations due to homelessness, 5 and severe financial difficulties and a lack of insurance prevented her from completing 6 referrals. (Id.) 7 The ALJ summarized numerous appointment records from Plaintiff's examinations 8 by Dr. D'Souza. (AR 22 (citing AR 591, 594, 598, 601, 604-05, 608, 998-99, 1053-54).) 9 He then determined that the doctor's clinical findings did not support all of his diagnoses. 10 (Id.) He also found Dr. D'Souza's opinion that Plaintiff needed to keep her arms elevated 11 not persuasive, because Dr. Goldstein testified that elevating extremities is not helpful for 12 someone with lymphedema. As an initial matter, Dr D'Souza did not find that Plaintiff had 13 a functional limitation such that she needed to keep her arms elevated any portion of a 14 workday. (AR 904-07.) Rather, shortly after Plaintiff's September 2017 bilateral DVTs in 15 her upper extremities, Dr D'Souza recommended Plaintiff elevate her arms to reduce 16 swelling. (AR 647.) Because D'Souza did not include a finding that Plaintiff needed to keep 17 her arms elevated, the ALJ's rejection of such a finding is irrelevant. 18 Plaintiff argues the ALJ failed to provide sufficient reasons for rejecting Dr. 19 D'Souza's opinion regarding Plaintiff's functional limitations. In particular, the ALJ 20 rejected Dr. D'Souza's opinion that Plaintiff could work less than 4 hours per day (sit less 21 than two hours per day and stand/walk less than two hours per day) and would miss more 22 than 4 days of work per month; had substantial limitations in her ability to handle, finger, 23 and reach; and could sit for only 20 minutes at one time. The only reason the ALJ offered 24 to reject those limitations (and the whole of Dr. D'Souza's opinion) was that the findings in 25 the doctor's records did "not support all his reported impairing diagnoses." The ALJ's 26 conclusion was limited to diagnoses and did not address the many specific functional 27 limitations identified by Dr. D'Souza. For that reason, the ALJ erred in failing to explain 28 how the doctor's opinion lacked support. Even if the Court reads the ALJ's conclusion to 1 apply beyond Dr. D'Souza's diagnoses to the entirety of his opinion, the ALJ's ruling is too 2 general. Although the ALJ implicitly rejected the entirety of Dr. D'Souza's opinion , by 3 finding that the doctor's examinations did not support all of his findings, the ALJ implicitly 4 concluded his examinations supported some of them. For example, on repeated 5 examinations, Dr. D'Souza found that Plaintiff had upper extremity swelling, left or 6 bilateral, sometimes accompanied by a restriction in her range of motion. (AR 590-91, 595, 7 598 601, 604, 618, 624, 641, 643, 647, 999, 1003, 1054.) The ALJ noted some of these 8 findings, but he failed to discuss whether they supported Dr. D'Souza's limitations on 9 Plaintiff's ability to lift and carry, use her fingers and hands, or reach with her arms. It was 10 the ALJ's obligation to delineate which portions of Dr. D'Souza's opinion he found not 11 supported by his medical findings. He failed to do so. He also did not address the 12 consistency of Dr. D'Souza's opinion with the other record evidence. Therefore, the ALJ 13 erred in his treatment of Dr. D'Souza's opinion. 14 Lay Witness Testimony 15 On March 10, 2021, Robson and Alice Alder submitted a joint letter based on their 16 18-year knowledge of Plaintiff. (AR 449.) They attested that, in their early acquaintance 17 with Plaintiff, she was energetic, and any pain or discomfort she experienced did not 18 prevent her from maintaining her activities. (Id.) She cared for her daughters as a single 19 parent and helped with house chores during periods when she lived with the Alders. (Id.) 20 The Alders stated that, since being diagnosed with cancer, she has not been the same. (Id.) 21 Walking only 3 to 4 feet causes Plaintiff to become short of breath, she requires numerous 22 rest breaks and/or support to walk, and she needs assistance when getting out of a chair or 23 she risks falling. (Id.) They also noted that Plaintiff no longer has a positive outlook due to 24 the loss of her previous abilities. (Id.) 25 Pursuant to Ninth Circuit caselaw from 1993, "[i]f the ALJ wishes to discount the 26 testimony of the lay witnesses, he must give reasons that are germane to each witness." 27 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). This requirement satisfies the 28 regulation that the ALJ would "consider observations by non-medical sources as to how an 1 impairment affects a claimant's ability to work.” Id. (quoting Sprague v. Bowen, 812 F.2d 2 1226, 1232 (9th Cir. 1987)). Defendant argues that caselaw no longer applies because the 3 regulations have changed, citing 20 C.F.R. §§ 405.920c, 416.920c, which provide: "[w]e 4 are not required to articulate how we considered evidence from nonmedical sources using 5 the requirements in paragraphs (a)-(c) in this section." This regulatory change does not 6 provide that an ALJ need not articulate any reason for discounting evidence from lay 7 witnesses, it only states that the ALJ's consideration need not follow the requirements for 8 evaluating medical opinions. This regulatory change is not inconsistent with the Ninth 9 Circuit's germane-reasons standard. See Rogers v. Comm'r of Soc. Sec. Admin., No. CV- 10 20-00532-TUC-SHR-MSA, 2022 WL 464911, at *7 (D. Ariz. Jan. 11, 2022) ("the 11 germane-reasons standard 'has always been a different (and lower) standard than that 12 required for evaluating medical opinions.'") (quoting Alice B. v. Kijakazi, No. 20-cv-05897, 13 2021 WL 6113000, at *8 (N.D. Cal. Dec. 27, 2021)), report and recommendation adopted, 14 2022 WL 458517 (D. Ariz. Feb. 15, 2022); see also Kimberly T. v. Kijakazi, No. 3:20-CV- 15 1543-SI, 2022 WL 910083, at *7 (D. Or. Mar. 29, 2022) ("Because there are no provisions 16 of the new regulations that unambiguously remove the ALJ's obligation to address lay 17 witness testimony, it follows that the ALJ must continue to give germane reasons for 18 discounting lay witness testimony."); but see, e.g., John E.L. v. Comm'r of Soc. Sec., No. 19 3:20-CV-5776-TLF, 2021 WL 5150359, at *7 (W.D. Wash. Nov. 5, 2021) (finding ALJ 20 not required to offer any discussion regarding lay witness testimony under the 2017 21 regulations). The Court agrees with the conclusion in the majority of the above-cited cases 22 that the ALJ was obligated to offer germane reasons to reject the Alders' testimony. Further, 23 the ALJ articulated several reasons he rejected the lay witness statement; therefore, the 24 Court need not ignore the rationale supplied by the ALJ. 25 The ALJ found the Alders' testimony not persuasive because it was inconsistent 26 with Dr. Goldstein's opinion; the Alders were not medically trained to make exacting 27 observations; the Alders were not disinterested because their statement could be colored 28 by a bias to confirm the claimant's allegations; and the Alders were not an acceptable 1 medical source. (AR 23.) To the extent the ALJ found the Alders' testimony inconsistent 2 with Dr. Goldstein's opinion, that can be a germane reason to reject the Alders' testimony. 3 See White v. Kijakazi, No. 21-35756, 2022 WL 6649616, at *2 (9th Cir. Oct. 11, 2022) 4 (finding medical opinions contradicted lay witness statements). The Court is remanding 5 this matter for the ALJ to consider medical evidence relevant to Plaintiff's shortness of 6 breath and fatigue, which are the primary issues addressed by the Alders. Therefore, the 7 ALJ also should reevaluate their testimony on remand. 8 Because the ALJ will be reexamining the Alders' testimony on remand, the Court 9 briefly addresses the other rationale the ALJ provided for rejecting it. First, the fact that 10 the Alders were not medically trained and were not acceptable medical sources were not 11 germane reasons to discount their testimony. This rationale would apply to virtually all lay 12 witness testimony and would exempt ALJs from discussing all observations from persons 13 without medical training. ALJ's are directed to look to non-medical sources when the 14 objective medical evidence alone does not direct a fully favorable decision. SSR 16-3p ¶ 15 2. The ALJ's rationale also contradicts the Ninth Circuit's holding that "friends and family 16 members in a position to observe a claimant's symptoms and daily activities are competent 17 to testify." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); see Bruce v. Astrue, 557 18 F.3d 1113, 1116 (9th Cir. 2009) (finding a wife competent to testify despite not being a 19 medical expert). Next, in light of the circuit court's finding that friends and family are 20 competent to testify about their observations of a claimant's symptoms and activities, it was 21 not legitimate for the ALJ to discount the Alders' testimony because their friendship may 22 have given them an interest in the outcome. See Diedrich v. Berryhill, 874 F.3d 634, 640 23 (9th Cir. 2017) (quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 24 2009)). The indefensibility of this reasoning by the ALJ is highlighted by the fact that 25 Defendant did not defend the reasons provided by the ALJ as providing a sufficient basis 26 to reject lay witness testimony. (Doc. 17 at 20.) 27 28 2 A federal court may affirm, modify, reverse, or remand a social security case. 42 3 U.S.C. ' 405(g). When a court finds that an administrative decision is flawed, the remedy 4 should generally be remand for “additional investigation or explanation.” INS v. Ventura, 5 537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 6 (1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). However, a district 7 court should credit as true medical opinions and a claimant’s testimony that was improperly 8 rejected by the ALJ and remand for benefits if:

9 (1) the ALJ failed to provide legally sufficient reasons for rejecting the testimony; (2) there are no outstanding issues that must be resolved before a 10 determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such 11 evidence credited. 12 Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004); Garrison v. Colvin, 759 F.3d 995, 13 1021 (9th Cir. 2014) (precluding remand for further proceedings if the purpose is solely to 14 allow ALJ to revisit the medical opinion he rejected). 15 Plaintiff has requested a remand for benefits or, alternatively, a remand for further 16 proceedings. The Court concluded that the first requirement of credit as true was satisfied, 17 because the ALJ rejected the opinion of Dr. D'Souza without legally valid reasons. 18 However, the Court finds this case would benefit from further proceedings. Treichler v. 19 Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101-01 (9th Cir. 2014). "Administrative 20 proceedings are generally useful where the record 'has [not] been fully developed,' there is 21 a need to resolve conflicts and ambiguities, or the 'presentation of further evidence . . . may 22 well prove enlightening' in light of the passage of time." Id. at 1101. Here, the Court has 23 determined Plaintiff's case should be remanded so the ALJ may consider the November 24 2021 records from Dr. Ahmed and pulmonary function testing. Given the passage of time, 25 there necessarily will be further evidence regarding whether suffered from, or continues to 26 suffer from, long COVID. Additionally, Dr. D'Souza's opinion is extremely broad and 27 restrictive, and it conflicts with the other medical opinions in the record. It is the ALJ that 28 should parse his findings in the first instance, not this Court. 1 Upon remand, the ALJ shall consider the November 2021 evidence submitted for 2| the first time to the Appeals Council. (AR 31-46.) In light of that evidence, as well as any 3 | new evidence obtained, the ALJ should reconsider the testimony of Drs. Goldstein and D'Souza, the RFC, and the Alders' lay witness testimony. 5 Accordingly, 6 IT IS ORDERED that this case is remanded to the ALJ for a new hearing and further proceedings, pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of Court 8 | should enter judgment and close this case. 9 Dated this 21st day of September, 2023. 10 1] ; Liaauell 0. dip □ onorable Lynnette C. Kimmins 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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