Guinn v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: March 14, 2023
• Docket: 2:21-cv-01822
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jason M. Guinn, No. CV-21-01822-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff challenges the denial of his applications for benefits under the Social 16 Security Act (“the Act”) by the Commissioner of the Social Security Administration 17 (“Commissioner”). The Court has reviewed Plaintiff’s opening brief (Doc. 14), the 18 Commissioner’s answering brief (Doc. 15), and Plaintiff’s reply (Doc. 18), as well as the 19 Administrative Record (Doc. 11, AR), and now affirms the Administrative Law Judge’s 20 (“ALJ”) decision. 21 I. Procedural History 22 On August 22, 2018, Plaintiff filed an application for disability and disability 23 insurance benefits. (AR at 15.) Later, Plaintiff protectively filed a Title XVI application 24 for supplemental security income. (Id.) In both applications, Plaintiff alleged disability 25 beginning on August 8, 2017. (Id.) The Social Security Administration (“SSA”) denied 26 Plaintiff’s application at the initial and reconsideration levels of administrative review and 27 Plaintiff requested a hearing before an ALJ. (Id.) On February 17, 2021, following a 28 hearing and supplemental hearing, the ALJ issued an unfavorable decision. (Id. at 15-30.) 1 The Appeals Council later denied review. 2 II. The Sequential Evaluation Process And Judicial Review 3 To determine whether a claimant is disabled for purposes of the Act, the ALJ 4 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 5 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 6 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 7 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 8 §404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 9 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 10 step three, the ALJ considers whether the claimant’s impairment or combination of 11 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 12 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 13 found to be disabled. Id. At step four, the ALJ assesses the claimant’s residual functional 14 capacity (“RFC”) and determines whether the claimant is still capable of performing past 15 relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and 16 final step, where she determines whether the claimant can perform any other work in the 17 national economy based on the claimant’s RFC, age, education, and work experience. 20 18 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 19 An ALJ’s factual findings “shall be conclusive if supported by substantial 20 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 21 the Commissioner’s disability determination only if it is not supported by substantial 22 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 23 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 24 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 25 evidence is susceptible to more than one rational interpretation, one of which supports the 26 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 27 954 (9th Cir. 2002) (citations omitted). In determining whether to reverse an ALJ’s 28 decision, the district court reviews only those issues raised by the party challenging the 1 decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 2 III. The ALJ’s Decision 3 The ALJ found that Plaintiff had not engaged in substantial, gainful work activity 4 since the alleged onset date and that Plaintiff had the following severe impairments: 5 “cervical and lumbar degenerative disc disease, post laminectomy syndrome, and 6 nonspecific paroxysmal spell.” (AR at 182.)1 Next, the ALJ concluded that Plaintiff’s 7 impairments did not meet or medically equal a listing. (Id. at 20-21.) Next, the ALJ 8 calculated Plaintiff’s RFC as follows: 9 [T]he claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except he can push/pull as 10 much as he can lift/carry. He can frequently handle, finger, or feel and 11 occasionally reach overhead bilaterally. The claimant can frequently stoop, balance, kneel, crouch, crawl, and climb ramps/stairs, but never climb 12 ladders, ropes, or scaffolds. He can never work around unprotected heights, 13 moving mechanical parts, nor operate a motor vehicle. In addition, the claimant can occasionally work around dust, odors, fumes, pulmonary 14 irritants, extreme cold, extreme heat, vibration. He can be exposed to 15 moderate noise. 16 (Id. at 21.) 17 As part of this RFC determination, the ALJ evaluated Plaintiff’s symptom 18 testimony, concluding that Plaintiff’s “statements concerning the intensity, persistence and 19 limiting effects of [his] symptoms are not entirely consistent with the medical evidence and 20 other evidence in the record for the reasons explained in this decision.” (Id. at 21-24.) The 21 ALJ also evaluated opinion evidence from various medical sources, concluding as follows: 22 (1) Dr. Shelly Woodward, consultative psychologist (“persuasive”); (2) Dr. Gregory 23 Lazarz, neurologist (“unpersuasive”); (3) Dr. Heath Spivey, primary care provider 24 (“unpersuasive”); (4) reviewing medical consultants with the State agency (“persuasive”). 25 (Id. at 24-28.) 26

27 1 The ALJ also noted that Plaintiff had asthma, trigger finger in the right ring finger, kidney problems, and right elbow pain, as well as the “mental impairments of depression 28 and anxiety,” but concluded that none of these impairments qualified as severe. (AR at 18- 20.) 1 Based on the testimony of a vocational expert, the ALJ concluded that although 2 Plaintiff was incapable of performing his past relevant work as a deputy sheriff and truck 3 driver, he was capable of performing other jobs that exist in significant numbers in the 4 national economy, including counter clerk, host, and rental clerk. (Id. at 28-29.) Thus, the 5 ALJ concluded that Plaintiff is not disabled. (Id. at 30.) 6 IV. Discussion 7 Plaintiff presents five issues on appeal: (1) whether the ALJ erred by characterizing 8 his mental impairments as non-severe during step two of the sequential analysis (Doc. 14 9 at 7-11); (2) whether the ALJ erred when discrediting the opinions of Dr. Spivey (id. at 11- 10 14); (3) whether the ALJ erred when discrediting the opinions of Dr. Lazarz (id. at 14-16);2 11 (4) whether the ALJ erred when discrediting his symptom testimony (Doc. 15 at 16-18); 12 and (5) whether the ALJ erred by rejecting lay witness testimony and not giving any 13 reasons for the rejection (id. at 18-20). As a remedy, Plaintiff seeks a remand for 14 calculation of benefits pursuant to the credit-as-true rule. (Id. at 25.) 15 A. Step Two 16 To proceed beyond step two in the sequential evaluation, the claimant must have a 17 severe impairment, or a combination of severe impairments, that “significantly limits [his] 18 physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). “An 19 impairment is not severe if it is merely ‘a slight abnormality (or combination of slight 20 abnormalities) that has no more than a minimal effect on the ability to do basic work 21 activities.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citations omitted). 22 Notably, “[s]tep two is merely a threshold determination meant to screen out weak claims.” 23 Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (citation omitted). Because the ALJ 24 must evaluate the functional impact of both severe and non-severe impairments when 25 determining the RFC, “[t]he RFC . . . should be exactly the same regardless of whether 26 certain impairments are considered ‘severe’ or not.” Id. at 1049 (emphasis omitted). 27 2 Although Plaintiff groups his challenges regarding Drs. Spivey and Lazarz together 28 under a single heading (Doc. 14 at 1, 11), the Court separates those challenges here for purposes of analytical clarity. 1 Plaintiff argues the ALJ erred by finding that his depression and anxiety were non- 2 severe for purposes of step two. (Doc. 14 at 7-11.) Plaintiff notes that despite the ALJ’s 3 conclusions to the contrary, he participated in “formal mental health treatment” consisting 4 of medication management through his primary care providers, and that his treatment 5 records, including the assessments of his family doctor and neurologist, support that he has 6 significant workplace limitations resulting from his depression and anxiety. (Id.) Plaintiff 7 argues that because the RFC did not properly account for his mental health impairments, 8 the VE testimony supporting the ALJ’s conclusion at step five “has no evidentiary value.” 9 (Id. at 11.) The Commissioner responds that the ALJ relied upon the opinions of three 10 different psychologists when concluding that Plaintiff’s mental impairments were not 11 severe and that substantial evidence supports the ALJ’s conclusions. (Doc. 15 at 7-9.) 12 Plaintiff is not entitled to reversal based on his claim of step-two error. “As this 13 Court has observed in earlier cases, Ninth Circuit law is not a model of clarity concerning 14 how to evaluate claims of step-two error. Some cases suggest that, although it is error for 15 an ALJ to fail to characterize a particular impairment as ‘severe’ during step two, the error 16 can be disregarded as harmless if the ALJ properly addresses the impairment during later 17 steps. Other decisions suggest that a claimant can’t complain about an ALJ’s failure to 18 identify a particular impairment as ‘severe’ during step two so long as the ALJ determined 19 the claimant also had other impairments that so qualify. At any rate, the dispositive issue 20 is whether the ALJ properly evaluated the evidence and testimony concerning that 21 condition during later steps and factored that condition into the RFC.” Harvey v. Comm’r 22 of Soc. Sec. Admin., 2021 WL 5822641, *2 (D. Ariz. 2021) (cleaned up). Here, Plaintiff 23 has separately argued that the ALJ erred by rejecting the mental impairment-related 24 opinions of Drs. Spivey and Lazarz and failing to incorporate those opinions into the RFC. 25 If Plaintiff prevails on that challenge, he will be entitled to relief irrespective of his claim 26 of step-two error. And if Plaintiff does not prevail on that challenge, any theoretical step- 27 two error was harmless. Thus, reversal is not warranted on this basis.3

28 3 At any rate, the ALJ’s RFC findings regarding Plaintiff’s mental health are adequately supported. The ALJ cited evidence of Plaintiff’s ability to concentrate, 1 B. Dr. Spivey 2 1. Standard Of Review 3 In January 2017, the SSA amended the regulations concerning the evaluation of 4 medical opinion evidence. See Revisions to Rules Regarding Evaluation of Medical 5 Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Because the new regulations apply to 6 applications filed on or after March 27, 2017, they are applicable here. 7 The new regulations, which eliminate the previous hierarchy of medical opinions, 8 provide in relevant part as follows: 9 We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical 10 finding(s), including those from your medical sources . . . . The most 11 important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability 12 . . . and consistency . . . . 13 20 C.F.R. § 416.920c(a).4 Regarding the “supportability” factor, the new regulations 14 explain that the “more relevant the objective medical evidence and supporting explanations 15 presented by a medical source are to support his or her medical opinion(s), . . . the more 16 persuasive the medical opinions . . . will be.” Id. § 404.1520c(c)(1). Regarding the 17 “consistency” factor, the “more consistent a medical opinion(s) . . . is with the evidence 18 from other medical sources and nonmedical sources in the claim, the more persuasive the 19 medical opinion(s) . . . will be.” Id. § 404.1520c(c)(2) 20 Recently, the Ninth Circuit confirmed that the “recent changes to the Social Security 21 including evidence of his ability to read, drive, and manage funds. (AR at 20, citing AR at 22 423-31, 455-62.) The ALJ also deemed persuasive the opinion of the psychological examiner who, despite concluding that certain diagnoses were appropriate, ultimately 23 “noted no significant limitations secondary to [Plaintiff’s] anxiety or depression.” (Id. at 25.) The ALJ found the psychologist’s conclusions consistent with treatment notes 24 showing “mostly normal” psychiatric examinations and with Plaintiff’s reported daily activities. (Id. at 25-26.) Substantial evidence supports the ALJ’s rationale that Plaintiff 25 often displayed an appropriate mood and affect (id. at 564, 569, 643, 645, 647, 972), normal attention and concentration (id. at 564, 569), and no depression, anxiety, or agitation (id. 26 at 596, 601, 606). 27 4 Other factors that may be considered by the ALJ in addition to supportability and consistency include the provider’s relationship with the claimant, the length of the 28 treatment relationship, the frequency of examinations, the purpose and extent of the treatment relationship, and the specialization of the provider. 20 C.F.R. § 416.920c(c). 1 Administration’s regulations displace our longstanding case law requiring an ALJ to 2 provide ‘specific and legitimate’ reasons for rejecting an examining doctor’s opinion.” 3 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). Thus, “the former hierarchy of 4 medical opinions—in which we assign presumptive weight based on the extent of the 5 doctor’s relationship with the claimant—no longer applies. Now, an ALJ’s decision, 6 including the decision to discredit any medical opinion, must simply be supported by 7 substantial evidence.” Id. With that said, “[e]ven under the new regulations, an ALJ cannot 8 reject an examining or treating doctor’s opinion as unsupported or inconsistent without 9 providing an explanation supported by substantial evidence. The agency must articulate 10 how persuasive it finds all of the medical opinions from each doctor or other source and 11 explain how it considered the supportability and consistency factors in reaching these 12 findings.” Id. at 792 (cleaned up). Although an “ALJ can still consider the length and 13 purpose of the treatment relationship, the frequency of examinations, the kinds and extent 14 of examinations that the medical source has performed or ordered from specialists, and 15 whether the medical source has examined the claimant or merely reviewed the claimant’s 16 records . . . the ALJ no longer needs to make specific findings regarding these relationship 17 factors . . . .” Id. 18 2. Dr. Spivey’s Opinions 19 On April 21, 2020, Plaintiff’s treating family practitioner, Dr. Spivey, completed a 20 Physical Capacities Evaluation. (AR at 965-66.) In it, Dr. Spivey described Plaintiff’s 21 symptoms as “constant pain in back, neck and most joints, blackout spells with anxiety” 22 and opined that Plaintiff would be significantly limited in his abilities to sit, stand, walk, 23 lift or carry weights, engage in various postural maneuvers, and be exposed to various 24 environmental factors. (Id.) Dr. Spivey also opined Plaintiff would have moderate, 25 moderately severe, or severe limitations in his ability to pay attention to or concentrate on 26 tasks, maintain interpersonal relationships, respond to customary work pressures or stress, 27 and provide consistent work effort. (Id. at 966.) Dr. Spivey estimated Plaintiff would 28 likely be absent from work more than four days each month. (Id.) 1 3. The ALJ’s Evaluation Of Dr. Spivey’s Opinions 2 The ALJ deemed Dr. Spivey’s opinions “unpersuasive.” (Id. at 27.) The ALJ’s full 3 rationale for this determination was as follows: 4 The undersigned finds the opinion of Dr. Spivey unpersuasive. He also seemed to rely heavily on the claimant’s subjective complaints because the 5 claimant’s multiple brain MRIs and EEGs were unremarkable. Dr. Spivey 6 noted that the claimant would have limitations with attention/concentration, maintaining interpersonal relationships, responding to customary work 7 pressures, and work effort. However, as stated above, Dr. Woodward noted 8 no mental impairments based on exam and evaluation. Moreover, Dr. Spivey is not a psychiatrist, psychologist, or other mental health specialist to assess 9 the claimant’s mental health limitations. Due to the claimant’s lack of 10 aggressive mental health treatment and reports of improvement of his anxiety with sertraline and buspirone, there was no indication that the claimant 11 suffered from severe disabling stress or anxiety. MRI of the lumbar spine 12 dated July 17, 2019 revealed minimal right L4-L5 and L5-S1 facet arthrosis without central canal, lateral recess, or foraminal stenosis. There was 13 unremarkable conus and cauda equine. In June 2020, cervical spine x-ray showed three level fusion, ACDF, and degenerative spondylosis, but no 14 fracture. EMG of the right upper extremity dated May 26, 2020 was within 15 normal limits. The claimant’s reports of improvement of pain with his prescribed medications and conservative treatment show that his pain was 16 not as disabling as alleged. Physical exams revealed mostly normal gait, 17 coordination, range of motion, strength, tone, and sensation with negative straight leg raises and intact cranial nerves. Thus, Dr. Spivey’s extreme 18 limitations are unsupported by the overall objective medical evidence. 19 Furthermore, the claimant was higher functioning than alleged as he continued to report that he was able to tend to his personal hygiene, prepare 20 simple meals, perform light household chores, manage his finances, drive 21 independently, take care of his dog, help his elderly parents, travel to Montana, and shop. 22 (Id., citations omitted.) 23 Put another way, the ALJ identified the following five reasons for discrediting Dr. 24 Spivey’s opinions related to Plaintiff’s mental impairments: (1) inconsistency with, and 25 lack of support from, medical records (unremarkable brain MRIs and EEGs); (2) 26 inconsistency with the opinions of other medical providers (Dr. Woodward); (3) Dr. 27 Spivey’s lack of specialization; (4) inconsistency with the absence of aggressive mental 28 1 health treatment; and (5) inconsistency with Plaintiff’s improvement from other forms of 2 mental health treatment. Separately, the ALJ identified the following four reasons for 3 discrediting Dr. Spivey’s opinions related to Plaintiff’s physical impairments: (1) 4 inconsistency with medical records (MRIs and cervical spine x-rays); (2) inconsistency 5 with Plaintiff’s improvement from various forms of conservative treatment; (3) 6 unsupported by the results of Dr. Spivey’s physical exams; and (4) inconsistency with 7 Plaintiff’s activities of daily living (“ADLs”). 8 4. The Post-Hearing Submission 9 On April 29, 2021—that is, after the issuance of the ALJ’s decision, but before the 10 Appeals Council denied review—Dr. Spivey filled out a questionnaire. (Id. at 536.) In 11 this questionnaire, Dr. Spivey stated that he agreed with the ALJ’s determination that the 12 Plaintiff’s multiple brain MRIs and EEGs were allegedly unremarkable. (Id.) However, 13 Dr. Spivey disagreed with the ALJ’s determinations as to other issues related to Plaintiff’s 14 mental health impairments. (Id.) 15 When denying review, the Appeals Council stated that it had “considered the 16 reasons” that Plaintiff had “submitted [as to why] you disagree with the decision” and 17 “exhibited them on the enclosed Order of the Appeals Council.” (Id.) The corresponding 18 order clarifies that Plaintiff’s “Representative Brief, dated May 7, 2021” was among the 19 pieces of evidence considered by the Appeals Council. (Id.) The order also specifies that 20 the “Representative Brief” appeared as Exhibit 36E in the administrative record. (Id.) The 21 index to the administrative record, in turn, states that the “Representative Brief” labeled as 22 Exhibit 36E appears at pages 527-36 of the administrative record. (AR, unnumbered index 23 between pages 500 and 501.) Dr. Spivey’s questionnaire, which appears at page 536, was 24 part of this exhibit. 25 5. The Parties’ Arguments 26 As an initial matter, Plaintiff argues—incorrectly, in light of Woods—that the new 27 regulations “do not replace long-standing Ninth Circuit precedent that affords primacy to 28 treating physician medical opinion evidence.” (Doc. 14 at 11.) On the merits, Plaintiff 1 seems to identify the following reasons why the evaluation of Dr. Spivey’s opinions was 2 erroneous: (1) the Appeals Council disregarded Dr. Spivey’s post-hearing questionnaire 3 (id. at 10); (2) Dr. Spivey’s lack of specialization is irrelevant because “Dr. Spivey need 4 not be a mental health specialist in order to comment on how that impairment effect a 5 claimant’s ability to work” (id. at 13); and (3) the ADLs identified by the ALJ were not 6 inconsistent with Dr. Spivey’s opined-to limitations (id. at 13-14). 7 In response, the Commissioner argues that the ALJ’s evaluation of Dr. Spivey’s 8 opinions was permissible under the new regulations and that most of Plaintiff’s arguments 9 are misplaced because they are based on the old regulations. (Doc. 15 at 13-14.) More 10 specifically, the Commissioner argues that the ALJ expressly considered the consistency 11 and supportability factors when analyzing Dr. Spivey’s opinions and provided multiple 12 reasons why each factor undermined Dr. Spivey’s opinions. (Id. at 18-19.) 13 In reply, Plaintiff essentially restates the arguments related to Dr. Spivey that appear 14 in his opening brief. (Doc. 18 at 3-6.) Plaintiff also argues, in reliance on Ninth Circuit 15 caselaw that predates the new regulations, that the ALJ could not discredit Dr. Spivey’s 16 opinions simply because they conflicted with the opinions of other medical sources. (Id. 17 at 7.) 18 6. Analysis 19 The Court finds no harmful error in the ALJ’s evaluation of Dr. Spivey’s opinions. 20 The new regulations require consideration of the consistency and supportability factors. 21 The ALJ expressly considered these factors in the underlying decision and identified 22 multiple reasons why each factor undermined the persuasiveness of Dr. Spivey’s opinions. 23 Plaintiff, however, makes no effort to challenge some of those reasons—instead, he 24 identifies only a small subset of the ALJ’s reasons (i.e., lack of specialization and 25 inconsistency with ADLs) and attempts to demonstrate that those reasons were not 26 supported by substantial evidence. But even if Plaintiff were correct as to those reasons, 27 the ALJ also identified many other seemingly unchallenged reasons why Dr. Spivey’s 28 opinions lacked support and/or were inconsistent with other evidence in the record. This, 1 alone, requires affirmance as to Dr. Spivey. See, e.g., Reed v. Saul, 834 F. App’x 326, 329 2 (9th Cir. 2020) (“To the extent the ALJ erred in discounting the opinions of Dr. Cochran 3 because her opinions were based in part on Reed’s self-reports of his symptoms, that error 4 is harmless because the ALJ offered multiple other specific and legitimate reasons for 5 discounting Dr. Cochran’s opinions.”); Baker v. Berryhill, 720 F. App’x 352, 355 (9th Cir. 6 2017) (“Two of the reasons the ALJ provided for discounting examining psychologist Dr. 7 Wheeler’s opinion were not legally valid . . . [but] the ALJ provided other specific and 8 legitimate reasons for discounting Dr. Wheeler’s opinion. . . . As a result, any error was 9 harmless.”); Presley-Carrillo v. Berryhill, 692 F. App’x 941, 944-45 (9th Cir. 2017) (“The 10 ALJ also criticized Dr. Van Eerd’s opinion in part because Dr. Van Eerd did not define the 11 terms ‘mild,’ ‘moderate,’ or ‘severe’ in his assessment. This criticism was improper . . . 12 [but] this error was harmless because the ALJ gave a reason supported by the record for 13 not giving much weight to Dr. Van Eerd’s opinion—specifically, that it conflicted with 14 more recent treatment notes from Dr. Mateus.”). 15 Nor is there any merit to Plaintiff’s contention that the Appeals Council ignored Dr. 16 Spivey’s post-hearing questionnaire. As discussed above, the Appeals Council specifically 17 identified Plaintiff’s “Representative Brief,” which included Dr. Spivey’s questionnaire, as 18 one of the materials it considered when denying review. At any rate, Dr. Spivey 19 acknowledged in that questionnaire that the ALJ was correct to conclude that his opined- 20 to limitations “seem to rely heavily on Mr. Guinn’s subjective complaints because his 21 multiple brain MRIs and EEGs were allegedly unremarkable.” (AR at 536.) This 22 acknowledgement, if anything, underscores why it was permissible for the ALJ to 23 determine that the supportability and consistency factors (which, again, are the mandatory 24 considerations under the new regulations) undermined the persuasiveness of Dr. Spivey’s 25 opinions. 26 … 27 … 28 … 1 C. Dr. Lazarz 2 1. Dr. Lazarz’s Opinions 3 On May 7, 2020, Plaintiff’s treating neurologist, Dr. Lazarz, completed a “Mental 4 Residual Functional Capacity Assessment.” (AR at 1212-14.) Dr. Lazarz assigned mostly 5 “moderate” limitations in different functional categories, defined as a limitation causing 6 “noticeable difficulty” or distraction from job activity for 11-20% of the workday. (Id. at 7 1212-13.) Dr. Lazarz also stated he was treating Plaintiff for “episodes of amnesia” that 8 underlined Plaintiff’s working ability. (Id. at 1214.) 9 In a separate “Residual Functional Capacity Questionnaire” completed the same 10 day, Dr. Lazarz addressed the functional impact of Plaintiff’s amnestic spells. (Id. at 1215- 11 18.) Dr. Lazarz indicated that the nature of Plaintiff’s seizure activity was unclear and was 12 being evaluated, that Plaintiff experienced the episodes once per week, that a typical 13 episode lasted one day, and that the episodes are precipitated by pain and anxiety. (Id. at 14 1215.) Dr. Lazarz opined Plaintiff was capable of only “low stress jobs” and would likely 15 miss “about four days” of work per month. (Id. at 1217-18). Dr. Lazarz noted that Plaintiff 16 would experience impairment in his memory, executive functioning, and ability to work 17 with others because of these episodes. (Id. at 1218.) 18 2. The ALJ’s Evaluation Of Dr. Lazarz’s Opinions 19 The ALJ deemed Dr. Lazarz’s opinions “unpersuasive.” (Id. at 26.) The ALJ’s full 20 rationale for this determination was as follows: 21 The undersigned finds the opinion of Dr. Lazarz unpersuasive. He seemed to rely heavily on the claimant’s subjective complaints because the 22 claimant’s multiple brain MRIs and EEGs were unremarkable. Dr. Lazarz 23 noted that the claimant would have limitations due to a memory impairment. However, as stated above, Dr. Woodward noted no memory impairment 24 based on Folstein Mini Mental Status exam wherein the claimant scored 28 25 out of 30. Dr. Lazarz indicated the claimant had executive dysfunction, but his treatment notes show that the claimant continued to report that he could 26 continue to drive, eat, drink, and perform normal functions while having 27 these spells/episodes. Dr. Lazarz reported the claimant had inability to work with others while he was having spell/episode, but there is no objective to 28 support this. In fact, Dr. Lazarz indicated that it was unclear if the claimant 1 was having seizures and that he was still being evaluated. He further stated the diagnosis was spells of unclear etiology, but were triggered by pain, 2 stress, and anxiety. Due to the claimant’s lack of aggressive mental health 3 treatment and reports of improvement of his anxiety with sertraline and buspirone, there was no indication that the claimant suffered from severe 4 disabling stress or anxiety. The claimant’s reports of improvement of pain 5 with his prescribed medications show that his pain was not as disabling as alleged. Thus, Dr. Lazarz’s extreme limitations are unsupported by his 6 treatment notes and pain management records. Furthermore, the claimant 7 was higher functioning than alleged as he continued to report that he was able to tend to his personal hygiene, prepare simple meals, perform light 8 household chores, manage his finances, drive independently, take care of his 9 dog, help his elderly parents, travel to Montana, and shop. 10 (Id. at 26-27, citations omitted.) 11 Put another way, the ALJ identified the following seven reasons for discrediting Dr. 12 Lazarz’s opinions related to Plaintiff’s mental impairments: (1) inconsistency with, and 13 lack of support from, medical records (unremarkable brain MRIs and EEGs); (2) 14 inconsistency with the opinions of other medical providers (Dr. Woodward); (3) lack of 15 support from Dr. Lazarz’s treatment notes; (4) Dr. Lazarz’s acknowledgement that the 16 etiology of certain symptoms was unclear; (5) inconsistency with the absence of aggressive 17 mental health treatment; (6) inconsistency with Plaintiff’s improvement from other forms 18 of mental health treatment; and (7) inconsistency with Plaintiff’s ADLs. 19 3. The Parties’ Arguments 20 After summarizing Dr. Lazarz’s opinions and the ALJ’s reasons for discrediting 21 those opinions (Doc. 14 at 14-15), Plaintiff identifies the following reasons why the ALJ’s 22 reasoning was erroneous: (1) “contrary to the ALJ’s assertions, [Plaintiff’s] activities of 23 daily living are not extensive and are interspersed with breaks to rest”; (2) “[Plaintiff] did 24 have mental health treatment, including trials of many different medications, through his 25 primary care provider”; and (3) “Dr. Lazarz specifically noted that the memory 26 impairment, executive dysfunction, and social deficits would be a problem only when 27 [Plaintiff] was actively in the midst of a blackout episode during work hours, and estimate 28 this would happen about once a week. This explains why the consultative examiner, who 1 examined [Plaintiff] when he was not in the midst of an episode, would not have noted any 2 memory impairment.” (Id. at 14-16.) 3 In response, the Commissioner defends the sufficiency of the ALJ’s rationale for 4 discrediting Dr. Lazarz’s opinions. (Doc. 15 at 17-18.) The Commissioner’s analysis 5 consists of summarizing the ALJ’s reasoning and explaining why this reasoning, which 6 touched upon the consistency and supportability factors, was sufficient under the new 7 regulations. (Id.) 8 In reply, Plaintiff essentially restates the arguments related to Dr. Lazarz that appear 9 in his opening brief. (Doc. 18 at 6-7.) Plaintiff also argues, in reliance on Ninth Circuit 10 caselaw that predates the new regulations, that the ALJ could not discredit Dr. Lazarz’s 11 opinions simply because they conflicted with the opinions of other medical sources. (Id. 12 at 7.) 13 4. Analysis 14 The Court finds no harmful error in the ALJ’s evaluation of Dr. Lazarz’s opinions. 15 The analysis here mirrors the analysis concerning Dr. Spivey. Plaintiff seeks reversal based 16 on the standards that were applicable under the old regulations and fails to acknowledge— 17 let alone challenge—many of the ALJ’s proffered reasons for concluding that Dr. Lazarz’s 18 opinions lacked supportability and consistency. Instead, Plaintiff focuses on only a subset 19 of the ALJ’s proffered reasons and attempts to establish that those reasons were factually 20 unsupported or inadequately explained. But even if Plaintiff were correct as to that subset 21 of the ALJ’s reasons, any error would be harmless in light of the ALJ’s identification of 22 other, unchallenged reasons why Dr. Lazarz’s opinions lacked supportability and 23 consistency. See, e.g., Reed, 834 F. App’x at 329; Baker, 720 F. App’x at 355; Presley- 24 Carrillo, 692 F. App’x at 944-45. 25 In any event, the Court agrees—at a minimum—with the Commissioner’s 26 arguments as to why substantial evidence supports the ALJ’s findings of inconsistency (Dr. 27 Cunningham’s opinions and testing) and lack of supportability (unremarkable MRI and 28 EEG findings and Dr. Lararz’s own acknowledgements of unclear etiology). 1 D. Symptom Testimony 2 1. Standard Of Review 3 An ALJ must evaluate whether the claimant has presented objective medical 4 evidence of an impairment that “could reasonably be expected to produce the pain or 5 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) 6 (citations omitted). If so, “an ALJ may not reject a claimant’s subjective complaints based 7 solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” 8 Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Instead, the ALJ may “reject the 9 claimant’s testimony about the severity of [the] symptoms” only by “providing specific, 10 clear, and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488– 11 89 (9th Cir. 2015). 12 2. The ALJ’s Evaluation Of Plaintiff’s Symptom Testimony 13 The ALJ provided the following summary of Plaintiff’s symptom testimony: 14 On the Disability Report – Adult, the claimant alleged disability based on blackout/seizure, neck injury, back injury, foot injury, kidney problems, and 15 severe anxiety. On the Function Reports – Adult, the claimant reported that 16 his impairments affect his ability to lift, squat, bend, stand, walk, sit, kneel, remember, complete tasks, and concentrate. Specifically, he described 17 having extreme difficulty doing even the slightest chores at home due to 18 constant pain that resulted in extreme anxiety. He reported having difficulty sleeping that caused episodes lasting several days. When the claimant 19 updated the Disability Report at the reconsideration level, he reported a 20 blockage in his right kidney that would require surgery or removal of kidney. At the hearing level, he reported seeing a specialist who advised him that 21 surgery on his kidney was not possible and was referred to the Mayo Clinic. 22 At the hearing, the claimant testified he was able to drive short distances to the store. According to his wife, the claimant explained that he had lost his 23 personality and was an angry person. The claimant stated he had seen a 24 therapist for his anger issues. He reported kidney issues with pain, infections, and blood in his urine. The claimant stated he had accidents every week. He 25 explained that he had started working at FedEx, but was unable to pass the 26 training because he passed out. Thereafter, the claimant reported that he filed for unemployment. When asked if he was fired because he was taking pain 27 medication, the claimant acknowledged that he was taking pain medication, 28 but unsure why they would have fired him for taking pain medication. The claimant indicated that he is disabled due to his ongoing pain. He reported 1 that he lived with his parents and his wife helped take care of them because he had given up due to his pain. The claimant stated having problems with 2 right hand and had difficulty lifting due to right shoulder pain. 3 (AR at 22.) 4 As noted, the ALJ declined to fully credit this testimony because Plaintiff’s 5 “statements concerning the intensity, persistence and limiting effects of these symptoms 6 are not entirely consistent with the medical evidence and other evidence in the record.” 7 (Id.) The ALJ then identified the following reasons for making this determination. 8 First, as for Plaintiff’s physical impairments, the ALJ stated they were “not 9 supported by the objective findings of record or [his] treatment history.” (Id. at 22-23.) In 10 support of this determination, the ALJ provided a detailed summary of Plaintiff’s medical 11 records, which can be summarized as follows: (1) a June 2018 record showing that Plaintiff 12 reported engaging in moderate physical activity and swimming; (2) a March 2018 record 13 reflecting that although Plaintiff reported some pain, he also reported twice-weekly 14 exercise and no side effects from medication and displayed normal gait, tone, and strength; 15 (3) an imaging study of Plaintiff’s lumbar spine that showed no nerve root impingement; 16 (4) an October 2018 record showing that Plaintiff reported 80 percent relief of pain with 17 medial branch block; (5) a November 2018 record in which Plaintiff was advised to reduce 18 his opioid use; (6) a December 2018 record reflecting that Plaintiff was not in acute distress 19 and had normal gait and station, strength, sensation, and tone; (7) an April 2019 record in 20 which Plaintiff reported difficulty with pain control; (8) a May 2019 record in which 21 Plaintiff reported that his pain was better managed with certain drugs; (9) a July 2019 spinal 22 MRI that revealed largely negative findings; (10) a November 2019 record reflecting that 23 Plaintiff “reported 80 percent of relief of pain for over 6 months with lumbar 24 radiofrequency ablation”; (11) a January 2020 record reflecting that Plaintiff “stopped 25 going to pain management” and reported that “he had not responded well to recent injection 26 therapy”; (12) an April 2020 physical therapy record reflecting that Plaintiff “tolerated 27 treatment well” and “reported no worsening of symptoms, showed improved quality in 28 gait, and split stance movements following intervention”; and (13) a June 2020 record in 1 which Plaintiff reported improvement in his elbow since surgery but still some symptoms. 2 (Id. at 23-24.) Based on these records, the ALJ concluded: “Given his mostly conservative 3 treatment, his improvement with his prescribed medications, 80 percent improvement in 4 pain with injections, and mostly normal physical exams with normal strength, tone, and 5 sensation, the undersigned cannot find the claimant is unable to sit, stand, or walk for 6 prolonged periods.” (Id. at 24.) 7 Second, as for Plaintiff’s claims of epilepsy and seizures, the ALJ noted that various 8 medical records and studies (including an April 2018 brain EEG, a July 2019 brain MRI, 9 and a 2020 EEG) resulted in largely “normal” and “unremarkable” findings. (Id. at 24.) 10 The ALJ also noted that “[d]espite his reports of syncope episodes, the claimant reported 11 he was able to drive during his episodes.” (Id.) 12 Finally, the ALJ noted that Plaintiff still maintains a driver’s license and “continued 13 to drive on a daily basis per his reports” and that Plaintiff “was higher functioning than 14 alleged as he continued to report that he was able to tend to his personal hygiene, prepare 15 simple meals, perform light household chores, manage his finances, drive independently, 16 take care of his dog, help his elderly parents, travel to Montana, and shop.” (Id. at 24-25.) 17 3. The Parties’ Arguments 18 Plaintiff characterizes the ALJ’s opinion as identifying four reasons for discrediting 19 his symptom testimony: (1) inconsistency with objective medical evidence; (2) 20 improvement from medication; (3) conservative treatment; and (4) engagement in ADLs 21 that were inconsistent with his testimony. (Doc. 14 at 16-17.) Plaintiff argues that the 22 ALJ’s analysis as to the first reason was flawed because the ALJ simply summarized the 23 evidence, without explaining why any of it was inconsistent with the specific functional 24 deficits he described, and improperly focused on a few isolated periods of temporary well- 25 being. (Id. at 17.) In a similar vein, Plaintiff argues that the ALJ’s analysis regarding his 26 ADLs was flawed because the ALJ did not specifically explain why his activities were 27 inconsistent with the limitations he described. (Id. at 17-18.) Plaintiff also notes, in other 28 sections of his brief, that the trip to Montana occurred before the alleged onset date. (Id. 1 at 14.) However, Plaintiff does not specifically address why the ALJ’s “improvement from 2 treatment” and “conservative treatment” rationales for discrediting his symptom testimony 3 were flawed. 4 The Commissioner defends the sufficiency of the ALJ’s rationale for discrediting 5 Plaintiff’s symptom testimony. (Doc. 15 at 9-13.) As for the ALJ’s first rationale 6 (inconsistency with objective medical evidence), the Commissioner argues that the 7 rationale was sufficiently detailed and supported by substantial evidence because the ALJ 8 specifically pointed to examinations revealing normal gait and station, strength, and 9 sensation, which were inconsistent with Plaintiff’s testimony regarding pain and needing 10 his wife to take care of him, and to EEG and MRI studies that resulted in normal findings, 11 which were inconsistent with Plaintiff’s claims of seizures and epilepsy. (Id. at 10-11.) As 12 for the ALJ’s second and third rationales (improvement from medication and conservative 13 treatment), the Commissioner argues that they, too, were supported by substantial evidence 14 in light of the evidence that Plaintiff’s medical providers tapered his use of hydrocodone 15 and that Plaintiff repeatedly reported improvement from treatment, including conservative 16 treatment like physical therapy. (Id. at 11-12.) The Commissioner also argues that the 17 ALJ did not “simply consider[] isolated periods of improvement” because “the record 18 shows a consistent pattern of improvement, and not rare reports of relief against a 19 background of ever-worsening symptoms.” (Id. at 12.) As for the ALJ’s fourth rationale 20 (inconsistency with ADLs), the Commissioner acknowledges that the trip to Montana may 21 have been before the period of alleged disability but argues that the other ADLs identified 22 by the ALJ were sufficient—even if they, alone, would not translate to a full-time work 23 schedule—because they contradicted Plaintiff’s claims regarding his limited activity level. 24 (Id. at 12-13.) 25 In reply, Plaintiff again argues that the problem was the ALJ’s failure to identify, 26 with specificity, “any particular findings which were inconsistent with any of the specific 27 functional deficits [Plaintiff] described.” (Doc. 18 at 8.) Plaintiff also repeats his 28 contention that the ALJ singled out a few isolated periods of well-being and improperly 1 focused on ADLs that “are not inconsistent with [his] testimony that he is unable to get 2 along with people or sustain focus for long enough to make it through a typical work week 3 without having a blackout episode.” (Id. at 8-9.) 4 4. Analysis 5 The Court finds no harmful error in the ALJ’s evaluation of Plaintiff’s symptom 6 testimony. 7 As an initial matter, Plaintiff does not meaningfully address or challenge the 8 sufficiency of two of the ALJ’s proffered rationales for rejecting his symptom testimony, 9 which were that he experienced improvement from medication and only pursued 10 conservative treatment. These are, in general, permissible reasons for discrediting a 11 claimant’s symptom testimony under Ninth Circuit law. Tommasetti v. Astrue, 533 F.3d 12 1035, 1040 (9th Cir. 2008) (“[T]he ALJ pointed to Tommasetti’s testimony that his severe 13 diabetes was not a ‘disabling problem,’ was controlled by medication, and was not the 14 reason he stopped working. This testimony undermines Tommasetti's prior claims that his 15 diabetes was among his disabling conditions.”); Fry v. Berryhill, 749 F. App’x 659, 660 16 (9th Cir. 2019) (“The ALJ proffered specific, clear, and convincing reasons for discounting 17 Fry’s testimony concerning the severity of her symptoms, including . . . the effectiveness 18 of Fry’s conservative treatment.”). See also 20 C.F.R. § 1529(c)(3)(iv)-(v) (“Factors 19 relevant to your symptoms, such as pain, which we will consider include . . . [t]he type, 20 dosage, effectiveness, and side effects of any medication you take or have taken to alleviate 21 your pain or other symptoms . . . [and] [t]reatment, other than medication, you receive or 22 have received for relief of your pain or other symptoms.”). 23 Admittedly, it is not clear to the Court that Plaintiff’s course of treatment could be 24 characterized as conservative. Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (“We 25 have previously doubted that epidural steroid shots to the neck and lower back qualify as 26 conservative medical treatment.”) (cleaned up). Among other things, Plaintiff’s providers 27 administered lumbar epidural steroid injections (AR at 1303, 1305), medial branch blocks 28 of the cervical and lumbar spine (id. at 621, 623, 1312), lumbar radiofrequency 1 denervations (id. at 758), and right elbow joint injections (id. at 922). Nor is it clear that 2 Plaintiff experienced consistent relief from these treatments—although Plaintiff reported 3 significant improvement following lumbar pain management procedures (AR at 758 4 [“Prior to discharge, Plaintiff reported having greater than 100% of pain relief following 5 the procedure”]; id. at 1306 [“In the recovery area following the procedure, the patient 6 reported pain relief of 85%.”]),5 other records indicate that Plaintiff’s cervical disc disease 7 was contemporaneously worsening. (Id. at 844.) Plaintiff exhibited progressive symptoms 8 in his upper extremities in August and September 2019. (Id. at 838, 841.) In January 2020, 9 Plaintiff reported pain relief from lumbar radiofrequency ablations but also reported that 10 his neck pain was increasing. (Id. at 909.) Plaintiff’s providers administered more lumbar 11 epidurals in May and June 2020 after Plaintiff reported increased pain (id. at 1301, 1303, 12 1305), but pain management notes from the next month reflect a “significant exacerbation” 13 of his pain, requiring four-to-five days of bedrest (id. at 1310). In October 2020, Plaintiff 14 reported neck pain radiating into his arms and ongoing weakness. (Id. at 1288, 1340.) 15 Plaintiff stated that his cervical spine symptoms were his most significant pain source. (Id. 16 at 1297.) In December 2020, Plaintiff continued to report progressively worsening 17 symptoms with weakness in his right hand. (Id. at 1328.) 18 Nevertheless, even if the Court were to disregard those rationales (despite Plaintiff’s 19 failure to raise specific challenges to those rationales), affirmance would be required 20 because the ALJ identified multiple other clear and convincing reasons, supported by 21 substantial evidence, for discrediting Plaintiff’s testimony. Molina v. Astrue, 674 F.3d 22 1104, 1115 (9th Cir. 2012) (“[S]everal of our cases have held that an ALJ’s error was 23 harmless where the ALJ provided one or more invalid reasons for disbelieving a claimant’s 24 testimony, but also provided valid reasons that were supported by the record.”); Carmickle 25 5 Plaintiff’s reports of symptomatic improvement in the low back were also 26 inconsistent. He reported no significant relief after an initial diagnostic branch block in August 2018, but he reported 80% relief after medial branch blocks in September 2018 27 (AR at 596, 758.) In late December 2020 he reported “no prolonged relief with lumbar injections.” (Id. at 1334.) At his second hearing, he testified that the various pain 28 management procedures were only “sometimes” effective and did not endorse significant relief. (Id. at 88.) 1 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (“Because we 2 conclude that two of the ALJ’s reasons supporting his adverse credibility finding are 3 invalid, we must determine whether the ALJ’s reliance on such reasons was harmless error. 4 . . . [T]he relevant inquiry in this context is not whether the ALJ would have made a 5 different decision absent any error, it is whether the ALJ's decision remains legally valid, 6 despite such error. . . . Here, the ALJ’s decision finding Carmickle less than fully credible 7 is valid, despite the errors identified above.”). 8 First, it was permissible under Ninth Circuit law for the ALJ to discount Plaintiff’s 9 symptom testimony due to its inconsistency with Plaintiff’s ADLs. Molina, 674 F.3d at 10 1112-13 (“[T]he ALJ may consider inconsistencies . . . between the testimony and the 11 claimant’s conduct . . . and whether the claimant engages in daily activities inconsistent 12 with the alleged symptoms. . . . Even where those activities suggest some difficulty 13 functioning, they may be grounds for discrediting the claimant’s testimony to the extent 14 that they contradict claims of a totally debilitating impairment.”) (cleaned up); Fry, 749 F. 15 App’x at 660 (“The ALJ proffered specific, clear, and convincing reasons for discounting 16 Fry’s testimony concerning the severity of her symptoms, including inconsistencies 17 between her daily activities and alleged limitations . . . .”). 18 The ALJ’s finding of inconsistency with ADLs was also supported by substantial 19 evidence. In his function reports, Plaintiff made such statements as “[m]y wife does pretty 20 much everything for me and our dog” (AR at 398), “I can’t bend, squat or stretch without 21 extreme pain or numbness” (id. at 400), “I can only lift a few pounds, I have a hard time 22 walking to the mail box” (id. at 402), and “I have extreme difficulty doing even the slightest 23 chores at home [and] am in constant pain which causes anxiety” (id. at 423). However, 24 Plaintiff elsewhere acknowledged that he prepares simple meals, performs light household 25 chores, provides some pet care, drives independently to the store, and helps his elderly 26 parents. (Id. at 398-403, 563, 717.) Although it is true that Plaintiff made clear, when 27 describing those activities, that his ability to perform them was limited, it was still rational 28 for the ALJ to conclude that Plaintiff’s ability to perform those activities in even a limited 1 fashion was inconsistent with Plaintiff’s description of himself as unable to bend, squat, 2 stretch, or lift more than a few pounds. The Court also notes that, in some of the medical 3 records cited by the ALJ in the portion of the decision evaluating the credibility of 4 Plaintiff’s symptom testimony, Plaintiff described himself as exercising regularly. (AR at 5 22-23, citing AR 1191 [describing “Exercise” as “Moderate” in intensity and involving 6 “Swimming”] and AR 599 [“Exercise: regularly (1-2 times/week)”].) It would be rational 7 to view such activity as inconsistent with Plaintiff’s description of himself in the function 8 reports as unable to bend, squat, stretch, or lift more than a few pounds. Perhaps a different 9 factfinder might have declined to find make a finding of inconsistency under these 10 circumstances, but “[w]here the evidence is susceptible to more than one rational 11 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 12 upheld.” Thomas, 278 F.3d at 954. 13 Plaintiff seeks to avoid this conclusion by emphasizing that “the activities of daily 14 living cited by the ALJ are not inconsistent with [Plaintiff’s] testimony that he is unable to 15 get along with people or sustain focus for long enough to make it through a typical work 16 week without having a blackout episode.” (Doc. 14 at 17.) This may be true, but it does 17 not mean the ALJ was precluded from making an adverse credibility determination on this 18 record. The Ninth Circuit has recognized that a “tendency to exaggerate” is a “specific and 19 convincing reason” for discrediting a claimant’s testimony. Tonapetyan v. Halter, 242 20 F.3d 1144, 1148 (9th Cir. 2001). See also Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 21 1996) (“To determine whether the claimant’s testimony regarding the severity of her 22 symptoms is credible, the ALJ may consider . . . ordinary techniques of credibility 23 evaluation, such as . . . prior inconsistent statements concerning the symptoms, and other 24 testimony by the claimant that appears less than candid . . . .”). Upholding an adverse- 25 credibility finding in this circumstance does not result in “disability claimants [being] 26 penalized for attempting to lead normal lives in the face of their limitations.” Reddick v. 27 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Instead, upholding the finding simply reflects 28 the common-sense principle that it is logical and permissible for a factfinder to doubt a 1 witness’s veracity when the witness has been shown to exaggerate or misstate the facts. 2 Second, it was also permissible under Ninth Circuit law for the ALJ to discount 3 Plaintiff’s symptom testimony on the ground that it was inconsistent with the objective 4 medical evidence in the record. Although this may not serve as an ALJ’s sole reason for 5 discounting a claimant’s symptom testimony, it is a permissible consideration when (as 6 here) it is coupled with other grounds for an adverse credibility finding. Smartt v. Kijakazi, 7 53 F.4th 489, 498 (9th Cir. 2022) (“Claimants like Smartt sometimes mischaracterize 8 [Ninth Circuit law] as completely forbidding an ALJ from using inconsistent objective 9 medical evidence in the record to discount subjective symptom testimony. That is a 10 misreading of [Ninth Circuit law]. When objective medical evidence in the record is 11 inconsistent with the claimant’s subjective testimony, the ALJ may indeed weigh it as 12 undercutting such testimony. We have upheld ALJ decisions that do just that in many 13 cases.”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (“While subjective pain 14 testimony cannot be rejected on the sole ground that it is not fully corroborated by objective 15 medical evidence, the medical evidence is still a relevant factor in determining the severity 16 of the claimant’s pain and its disabling effects.”). 17 The ALJ’s finding of inconsistency with the objective medical evidence was also 18 supported by substantial evidence. As the Commissioner correctly notes, the ALJ 19 specifically identified several examinations revealing normal gait and station, strength, and 20 sensation, which were inconsistent with Plaintiff’s claims regarding his pain, his inability 21 to bend and squat, and needing his wife to take care of him, and also specifically identified 22 several EEG and MRI studies that resulted in normal findings, which were inconsistent 23 with Plaintiff’s claims of seizures and epilepsy. 24 E. Lay Witness Testimony 25 1. The Parties’ Arguments 26 In his final assignment of error, Plaintiff notes that his “wife, Kyla Guinn, completed 27 a statement describing [his] limitations.” (Doc. 14 at 4.) This statement appears at pages 28 445-51 of the administrative record. Plaintiff contends that “[t]he ALJ failed to discuss the 1 testimony of the lay witness” (id. at 6) and that “[t]he ALJ did not mention this evidence 2 in the decision and gave no reasons for failing to consider the limitations the witness 3 described” (id. at 19). According to Plaintiff, “the ALJ’s failure to base the rejection of 4 the lay witness statement on the record and to give specific and legitimate reasons (or any 5 reasons at all) germane to each witness is reversible error.” (Id. at 19-20.) 6 In response, the Commissioner argues that affirmance is required, either because 7 ALJs are not required to specifically discuss statements from non-medical sources under 8 the new regulations or alternatively because “if Plaintiff’s wife submitted statements 9 consistent with Plaintiff’s allegations, and the ALJ properly evaluated Plaintiff’s own 10 statements, then any error in not reiterating those same findings in relation to the wife’s 11 similar testimony was harmless.” (Doc. 15 at 19-21.) 12 In reply, Plaintiff repeats his contention that the ALJ’s failure to consider his wife’s 13 statement was reversible error. (Doc. 18 at 9-10.) 14 2. Analysis 15 Plaintiff is not entitled to reversal based on his arguments regarding his wife’s lay 16 witness statement. 17 As an initial matter, the Court notes that the Ninth Circuit has not definitively 18 resolved whether ALJs must continue, following the issuance of the new SSA regulations 19 in 2017, to provide reasons for rejecting lay-witness statements. Lower courts have 20 reached conflicting decisions on that issue. Compare Stricker v. Acting Comm’r of Soc. 21 Sec. Admin., 2022 WL 3588215, at *6 (D. Ariz. 2022) (“Pursuant to Ninth Circuit caselaw 22 from 1993, ‘[i]f the ALJ wishes to discount the testimony of the lay witnesses, he must 23 give reasons that are germane to each witness’ . . . . Defendant argues that caselaw no 24 longer applies because the regulations have changed . . . [but] [t]his regulatory change does 25 not provide that an ALJ need not articulate any reason for discounting evidence from lay 26 witnesses, it only states that the ALJ’s consideration need not follow the requirements for 27 evaluating medical opinions. This regulatory change is not inconsistent with the Ninth 28 Circuit's germane-reasons standard.”) with Wendy J. C. v. Saul, 2020 WL 6161402, *12 1 n.9 (D. Or. 2020) (“The new regulations provide the ALJ is ‘not required to articulate how 2 [they] considered evidence from nonmedical sources . . . .’ As such, the ALJ is no longer 3 required to provide reasons germane to lay witnesses to reject their testimony.”). 4 Nevertheless, even assuming the reasoning requirement remains intact, the Ninth 5 Circuit has recognized that the failure to provide such reasoning is harmless where (1) the 6 ALJ provided legally sufficient reasons for rejecting the claimant’s symptom testimony 7 and (2) the lay witness did not describe any limitations beyond those identified by the 8 claimant. Molina, 674 F.3d at 1122 (“Here, the ALJ failed to explain her reasons for 9 rejecting the lay witnesses’ testimony. That testimony, however, did not describe any 10 limitations beyond those Molina herself described, which the ALJ discussed at length and 11 rejected based on well-supported, clear and convincing reasons. . . . Because the ALJ had 12 validly rejected all the limitations described by the lay witnesses in discussing Molina’s 13 testimony, we are confident that the ALJ’s failure to give specific witness-by-witness 14 reasons for rejecting the lay testimony did not alter the ultimate nondisability 15 determination. Accordingly, the ALJ’s error was harmless.”). Here, both conditions are 16 satisfied—the ALJ’s rationale for discrediting Plaintiff’s symptom testimony was legally 17 valid, for the reasons stated in Part IV.D above, and Plaintiff’s wife’s third-party statement 18 did not identify any limitations beyond those Plaintiff identified via his own testimony and 19 function reports. (AR at 398-403 [Plaintiff’s function report, describing limited driving, 20 pet care, and household activities]; id. at 445-49 [wife’s report, providing same 21 description].) 22 This conclusion is not undermined by Plaintiff’s assertion that his wife’s statement 23 explained “what happens during [Plaintiff’s] blackout episodes,” which Plaintiff “cannot 24 describe . . . himself.” (Doc. 18 at 9-10.) First, although it is obviously true that Plaintiff 25 lacks first-hand knowledge of his conduct during his blackouts, Plaintiff conveyed, in his 26 own testimony and reports, the same description of that conduct that Plaintiff’s wife 27 provided in her report. (AR at 50 [Plaintiff’s testimony that, “[a]ccording to my wife,” 28 Plaintiff’s “episodes . . . really [don’t] affect my driving ability, but [they] affect[], I guess, 1 || my personality. ... I don’t know what I’m capable of or saying or doing to somebody.”’]; 2|| id. at 450 [wife’s statement: “If he is having a blackout he is very mean and easily agitated. || He will have no memory of the event and always feels guilty for his behavior. I have to 4|| watch him constantly. He wanders all night and will try to leave the house or cook which would be a very bad idea.”’].) Second, to the extent this description of Plaintiff's conduct 6|| during blackouts could be considered the one piece of new information contained in Plaintiff's wife’s report, the ALJ specifically addressed it in the underlying decision. (/d. 8 || at 22 [“According to his wife, the claimant explained that he had lost his personality and 9|| was an angry person.”].) Third, and more broadly, Plaintiff's wife’s description of □□ Plaintiff’s conduct during blackouts did not identify any limitations beyond those identified 11 || by Plaintiff. And as noted, where “the ALJ ... validly rejected all the limitations described by the lay witnesses in discussing [the claimant’s] testimony, .. . the ALJ’s failure to give 13 || specific witness-by-witness reasons for rejecting the lay testimony . . . [is] harmless.” Molina, 674 F.3d at 1122. 15 Accordingly, 16 IT IS ORDERED that the ALJ’s decision is affirmed. 17 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly 18 || and terminate this action. 19 Dated this 14th day of March, 2023. 20 21 Lm ee” 22 f _o——— Dominic W, Lanza 23 United States District Judge 24 25 26 27 28

- 26 -