Julian v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: November 8, 2022
• Docket: 3:22-cv-05356
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT TACOMA 8

9 JENNIFER J., Plaintiff, CASE NO. C22-5356-MAT 10 v. 11 ORDER RE: SOCIAL SECURITY COMMISSIONER OF SOCIAL SECURITY, DISABILITY APPEAL 12 Defendant. 13

14 Plaintiff appeals a final decision of the Commissioner of the Social Security Administration 15 (Commissioner) denying Plaintiff’s applications for disability benefits after a hearing before an 16 administrative law judge (ALJ). Having considered the ALJ’s decision, the administrative record 17 (AR), and all memoranda of record,1 this matter is REVERSED and REMANDED for further 18 administrative proceedings. 19 FACTS AND PROCEDURAL HISTORY 20 Plaintiff was born on XXXX, 1971.2 Plaintiff has at least a high school education and 21

22 1 The Court notes that Plaintiff’s Reply Brief (Dkt. 12) fails to comply with the page number and formatting requirements contained in the Scheduling Order (Dkt. 9) and LCR 10(e)(1). Pleadings that fail to comply 23 with the Court’s orders and the federal and local rules of civil procedure may be rejected. 2 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1). 1 previously worked as furniture mover, substance abuse counselor, warehouse worker, and 2 teacher’s aide. AR 26. Plaintiff filed an application for Disability Insurance Benefits (DIB) and an 3 application for Supplemental Security Income (SSI) on August 15, 2019, alleging disability

4 beginning August 13, 2019. AR 15. The applications were denied at the initial level and on 5 reconsideration. On April 23, 2021, the ALJ held a hearing and took testimony from Plaintiff and 6 a vocational expert (VE). AR 34–61. On June 2, 2021, the ALJ issued a decision finding Plaintiff 7 not disabled. AR 15–28. Plaintiff timely appealed. The Appeals Council denied Plaintiff’s request 8 for review on April 4, 2022 (AR 1–6), making the ALJ’s decision the final decision of the 9 Commissioner. Plaintiff appeals this final decision of the Commissioner to this Court. 10 JURISDICTION 11 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 12 STANDARD OF REVIEW 13 This Court’s review of the ALJ’s decision is limited to whether the decision is in

14 accordance with the law and the findings are supported by substantial evidence in the record as a 15 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). “Substantial evidence” means more 16 than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable 17 mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 18 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s 19 decision, the Court must uphold the ALJ’s decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th 20 Cir. 2002). 21 DISCUSSION 22 The Commissioner follows a five-step sequential evaluation process for determining 23 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). 1 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 2 since the alleged onset date. AR 17. 3 At step two, the ALJ found that Plaintiff has a severe impairments of seizure disorder. AR

4 17. The ALJ also found that the record contained evidence of vertigo; however, the ALJ found that 5 these conditions did not rise to the level of severe. AR 18. 6 At step three, the ALJ found that Plaintiff’s impairments did not meet or equal the criteria 7 of a listed impairment. AR 18–21. 8 At step four, the ALJ found that Plaintiff has the residual functional capacity (RFC) to 9 perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the following 10 limitations: 11 [She can] occasionally climb ramps and stairs; never climb ladders, ropes or scaffolds; occasionally stoop, kneel, crouch, and crawl; 12 avoid concentrated exposure to noise; avoid all exposure to workplace hazards; and capable of simple, routine tasks. 13 AR 21. With that assessment, the ALJ found Plaintiff unable to perform any past relevant work. 14 AR 26. 15 At step five, the ALJ found that Plaintiff is capable of making a successful adjustment to 16 other work that exists in significant numbers in the national economy. With the assistance of a VE, 17 the ALJ found Plaintiff capable of performing the requirements of representative occupations such 18 as sales attendant, small products assembler, and cashier II. AR 27. 19 Plaintiff raises the following issues on appeal: (1) Whether the ALJ failed to resolve an 20 apparent conflict between the VE testimony and the Dictionary of Occupational Titles (DOT); (2) 21 whether the ALJ properly considered the opinion of Plaintiff’s primary care physician, (3) whether 22 the ALJ properly considered Plaintiff’s pain complaints; and (4) whether the ALJ properly 23 considered the lay witness statements. Plaintiff requests remand for an award of benefits or, in the 1 alternative, remand for further administrative proceedings. The Commissioner argues the ALJ’s 2 decision has the support of substantial evidence and should be affirmed. 3 1. VE Testimony

4 At step five, the Commissioner has the burden “to identify specific jobs existing in 5 substantial numbers in the national economy that claimant can perform despite her identified 6 limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). Based on the VE’s testimony, 7 the ALJ concluded that Plaintiff would be capable of performing the requirements of a sales 8 attendant, small products assembler, and cashier II. AR 27. 9 Plaintiff argues that the ALJ failed to resolve an apparent conflict between the RFC and 10 the Level 3 Reasoning required for performing the jobs of sales attendant and cashier II. Dkt. 10, 11 at 2–3. Social Security regulations require the ALJ to inquire whether the VE’s testimony is 12 consistent with the DOT and to obtain a reasonable explanation for any apparent conflict. Social 13 Security Ruling (SSR) 00-4p; see also Massachi v. Astrue, 486 F.3d 1149, 11452–53 (9th Cir.

14 2007). Here, the VE testified that a person limited to simple, routine work would be able to perform 15 the jobs of sales attendant and cashier II. AR 59. The DOT describes that both the sales attendant 16 and cashier II jobs require Level 3 Reasoning. DOT 299.677-010, 1991 WL 672643 (sales 17 attendant); DOT 211.462-010, 1991 WL 671840 (cashier II). The Ninth Circuit has held that “there 18 is an apparent conflict between the residual functional capacity to perform simple, repetitive tasks, 19 and the demands of Level 3 Reasoning.” Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015); 20 accord Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). Because the ALJ did not identify 21 or attempt to resolve the conflict between Plaintiff’s RFC and the Level 3 Reasoning required to 22 perform the jobs of sales attendant and cashier II, the ALJ erred by relying on the VE testimony to 23 find that Plaintiff could perform the requirements of these jobs at step five. 1 Plaintiff argues that the ALJ failed to resolve an apparent conflict between the RFC and 2 the noise level of a small products assembler job. Dkt. 10, at 3–4. The VE testified that a person 3 limited to avoiding concentrated exposure to noise could perform the requirements of a small

4 product assembler. AR 59. The Selected Characteristics of Occupations Defined in the DOT (SCO) 5 rates the noise level of occupations between Level 1 (“very quiet”) and Level 5 (“very loud”). 6 Program Operations Manual System (POMS) § DI 25001.001; see also SSR 00-4p (the ALJ’s duty 7 to resolve conflicts with DOT includes the SCO, its companion publication). The SCO rates the 8 small products assembler occupation as a “Level 4 – Loud” noise level. See DOT 706.684-022, 9 1991 WL 679050 (small products assembler I). There is a plain conflict between a limitation to 10 avoid concentrated exposure to noise and an occupation with a Level 4 noise level. The 11 Commissioner argues that the RFC limitation to “avoid concentrated exposure to noise” limits the 12 frequency of noise exposure rather than its intensity such that there is no conflict between the RFC 13 and the DOT in this case. Dkt. 11, at 14–15. Contrary to the Commissioner’s claim, neither the

14 RFC nor the DOT make a meaningful distinction between noise “frequency” and noise “intensity.” 15 Because the ALJ did not identify or attempt to resolve the conflict between Plaintiff’s RFC and 16 the Level 4 noise level of a small products assembler job, the ALJ erred by relying on the VE 17 testimony to find that Plaintiff could perform the requirements of a small products assembler at 18 step five. 19 Plaintiff next argues that the ALJ failed to resolve an apparent conflict between the RFC 20 and the hazards of a small products assembler job. Dkt. 10, at 3–4. The VE testified that a person 21 limited to avoiding all exposure to workplace hazards could perform the requirements of a small 22 product assembler. AR 59. The SCO defines “hazards” to include “moving mechanical parts of 23 equipment, tools, or machinery; electric shock; working in high, exposed places; exposure to 1 radiation; working with explosives; and exposure to toxic, caustic chemicals.” SSR 96-9p. The 2 SCO rates all of these conditions as “Not Present – Activity or condition does not exist” for the 3 small products assembler job. See DOT 706.684-022. Accordingly, there is no apparent conflict

4 between the RFC limitation to avoid hazards and the DOT’s description that the SCO-defined 5 hazards are “not present.” Plaintiff argues that the DOT’s general description of the small products 6 assembler occupation contemplates activities such as “light metal-cutting” and the use of portable 7 power tools, drill presses, and spot-welding machines, which “could obviously be considered a 8 hazard.” Dkt. 10, at 4. However, there is no indication that the ALJ’s RFC in this case intended to 9 define “hazards” any broader than the SCO’s definition. Therefore, Plaintiff has not shown that 10 the ALJ failed to identify or resolve an apparent conflict between the RFC’s limitation to avoid 11 exposure to all hazards and the VE’s testimony that Plaintiff could perform the duties of a small 12 products assembler. 13 The Commissioner argues that Plaintiff forfeited her challenge to the alleged

14 inconsistencies between the DOT and the RFC because Plaintiff’s counsel did not question the VE 15 at the hearing regarding any inconsistencies. Dkt. 11, at 16 (relying on Lair v. Colvin, 2013 WL 16 1247708, at *4 (C.D. Cal. Mar. 25, 2013)). Contrary to the Commissioner’s assertion, counsel’s 17 failure to question the VE regarding consistency with the DOT at the administrative level “does 18 not relieve the ALJ of his express duty to reconcile apparent conflicts through questioning.” 19 Lamear v. Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017). Further, the district court in Lair found 20 that the alleged inconsistency was “not at all apparent” such that “the ALJ was entitled to rely 21 upon the VE’s testimony.” Lair, 2013 WL 1247708 at *4. Here, as discussed above, it is reasonably 22 apparent that the RFC’s limitation for simple, routine tasks is inconsistent with the Level 3 23 Reasoning required for the sales attendant and cashier II jobs and that the RFC’s limitation to avoid 1 exposure to concentrated noise is inconsistent with the Level 4 loud noise level of the small 2 products assembler. Therefore, the ALJ’s duty to reconcile these apparent conflicts was not 3 forfeited. Remand is required for the ALJ to reconcile the conflicts between the RFC and the DOT

4 and explain the ALJ’s departure from the DOT at step five. See Pinto v. Massanari, 249 F.3d 840, 5 847 (9th Cir. 2001) (“[I]n order for an ALJ to rely on a job description in the Dictionary of 6 Occupational Titles that fails to comport with a claimant’s noted limitations, the ALJ must 7 definitively explain this deviation.”). 8 2. Medical Opinion Evidence 9 The regulations effective March 27, 2017, require the ALJ to articulate how persuasive the 10 ALJ finds medical opinions and to explain how the ALJ considered the supportability and 11 consistency factors. 20 C.F.R. §§ 404.1520c(a)–(b), 416.920c(a)–(b). The “more relevant the 12 objective medical evidence and supporting explanations presented” and the “more consistent” with 13 evidence from other sources, the more persuasive a medical opinion or prior finding. Id. at

14 §§ 404.1520c(c)(1)–(2), 416.920c(c)(1)–(2). Further, the Court must continue to consider whether 15 the ALJ’s analysis is supported by substantial evidence. Woods v. Kijakazi, 32 F.4th 785, 787 (9th 16 Cir. 2022); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as 17 to any fact, if supported by substantial evidence, shall be conclusive . . . .”). With these regulations 18 and considerations in mind, the Court proceeds to its analysis of the medical evidence in this case. 19 A. Dr. Allison Odenthal, M.D. 20 On April 5, 2021, Dr. Odenthal assessed limitations consistent with the requirements of 21 sedentary work. AR 701; see also 20 C.F.R §§ 404.1567(a), 416.967(a). Dr. Odenthal further 22 assessed that Plaintiff must periodically alternate and shift at will between sitting, standing, or 23 walking due to back pain, that Plaintiff must lie down two times per day during a work shift to 1 relieve back pain and fatigue, can occasionally perform postural activities, can occasionally reach, 2 and would be absent from work more than three times a month due to her impairments. AR 701– 3 4. Finally, Dr. Odenthal opined that Plaintiff must avoid concentrated exposure to extreme cold,

4 extreme heat, wetness, humidity, noise, fumes, odors, dusts, gases, and poor ventilation and must 5 avoid all exposure to hazards and driving due to epilepsy. AR 704. 6 The ALJ found Dr. Odenthal’s opinion “mostly persuasive.” AR 24. However, the ALJ 7 found that the doctor’s opinion limiting Plaintiff to lifting and carrying up to ten pounds, sitting 8 and standing for two hours, reaching occasionally, and avoiding concentrated to exposure to cold, 9 heat, wetness, humidity, and pulmonary irritants were not supported by the medical evidence of 10 record. AR 24. 11 Plaintiff argues that the ALJ failed to provide sufficiently specific reasons supported by 12 substantial evidence for rejecting Dr. Odenthal’s sedentary exertion and occasional reaching 13 limitations. Dkt. 10, at 6. The Commissioner argues that the ALJ sufficiently addressed Plaintiff’s

14 back pain elsewhere in the ALJ’s decision and reasonably found these records inconsistent with 15 Dr. Odenthal’s opinion. Dkt. 11, at 12; see Magallanes, 881 F.2d at 755 (the Court may draw 16 inferences from the ALJ’s decision relevant to the ALJ’s evaluation of medical opinion evidence). 17 The ALJ found that an MRI of Plaintiff’s lumbar spine demonstrated degenerative disc disease but 18 that there was “no obvious nerve root compression” and that, in physical exams, Plaintiff had 19 normal gait, negative straight leg raise, and minimal tenderness in her back with palpation. AR 22– 20 24. However, the ALJ failed to explain how and why this evidence is inconsistent with 21 Dr. Odenthal’s assessment of Plaintiff’s ability to lift carry, sit, stand, and reach. See 20 C.F.R. §§ 22 404.1520c(c)(2), 416.920c(c)(2) (“The more consistent a medical opinion(s) . . . is with the 23 evidence from other medical sources and nonmedical sources in the claim, the more persuasive the 1 medical opinion(s) . . . will be.”). Therefore, the ALJ’s finding that Dr. Odenthal’s sedentary 2 exertion limitations were inconsistent with the medical evidence of record was not supported by 3 substantial evidence.

4 Plaintiff argues that the ALJ’s decision contains no discussion of Plaintiff’s shoulder 5 impairments and little discussion of Plaintiff’s back impairment. Dkt. 10, at 6. Plaintiff argues that 6 the ALJ failed to acknowledge that Dr. Odenthal referenced a 2012 MRI showing a partial rotator 7 cuff tear in Plaintiff’s right shoulder and that the doctor also noted right shoulder tendonitis and 8 hand tingling. Id. (citing AR 703–5). Here, the ALJ rejected Dr. Odenthal’s lifting, carrying, 9 sitting, standing, and reaching limitations but failed to identify or discuss the supporting 10 explanations presented by Dr. Odenthal to support her opinion. See 20 C.F.R. §§ 404.1520c(a)– 11 (b), 416.920c(a)–(b) (the regulations require the ALJ to explain how the ALJ considered the 12 supportability and consistency factors when evaluating the persuasiveness of a medical opinion); 13 see also 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1) (“The more relevant the objective medical

14 evidence and supporting explanation presented by a medical source are to support his or her 15 medical opinion(s) . . . the more persuasive the medical opinions . . . will be.”). The Commissioner 16 argues that “the record fails to establish any shoulder impairment that the ALJ was required to 17 consider” and that the 2012 MRI is not in the record and has a remote date. Dkt. 11, at 12–13. 18 However, the Court is the limited to “review[ing] the ALJ’s decision based on the reasoning and 19 factual findings offered by the ALJ,” and the ALJ did not identify the relevance or remoteness of 20 the 2012 MRI when evaluating the persuasiveness of Dr. Odenthal’s opinion. See Bray v. Comm’r 21 of Soc. Sec., 554 F.3d 1219, 1226 (9th Cir. 2009). Therefore, the ALJ erred by failing to articulate 22 how the ALJ considered the supportability factor when evaluating the persuasiveness of Dr. 23 Odenthal’s opinion as required by the regulations. 1 Plaintiff argues that the ALJ failed to provide any reasons for rejecting Dr. Odenthal’s 2 limitations for an at-will sit/stand opinion, the need to lie down at unpredictable intervals, and 3 multiple absences per month. Dkt. 10, at 7. The Commissioner argues that the ALJ’s rejection of

4 Dr. Odenthal’s sitting and walking limitations “necessarily implies” that the ALJ found the 5 doctor’s at-will sit/stand option, need to lie down periodically, and absenteeism limitations 6 unpersuasive. Dkt. 11, at 13. Limitations from properly discounted evidence does not need to be 7 included in the RFC finding. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 691–92 (9th 8 Cir. 2009). Here, the ALJ found Dr. Odenthal’s opinion “mostly persuasive” and “largely 9 consistent with and supported by the [medical evidence of record],” yet expressly rejected the 10 doctor’s lifting, carrying, sitting, and standing limitations. AR 24. Notably, the ALJ did not 11 specifically reject Dr. Odenthal’s sit/stand, need to lie down, and absenteeism limitations. AR 24. 12 Therefore, the Court is not persuaded that the ALJ’s decision reasonably implies the rejection of 13 Dr. Odenthal’s sit/stand, need to lie down, and absenteeism limitations absent the express rejection

14 of those limitations. Because the ALJ did not properly reject Dr. Odenthal’s sit/stand, need to lie 15 down, and absenteeism limitations, the ALJ erred by not accounting for these limitations in the 16 RFC. 17 As discussed above, the ALJ erred by failing to support with substantial evidence her 18 finding that Dr. Odenthal’s lifting, carrying, sitting, standing, and reaching limitations were 19 inconsistent with the medical evidence, failing to consider the supportability of Dr. Odenthal’s 20 opinion, and failing to account for account for all of the doctor’s assessed limitations that were not 21 properly rejected. Where the ALJ fails to even mention a physician’s opinion that a claimant’s 22 impairment causes functional limitations, the Court “cannot ‘confidently conclude’ that the error 23 was harmless.” Marsh v. Colvin, 729 F.3d 1170, 1173 (9th Cir. 2015) (citing Stout v. Comm’r of 1 Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006)). Therefore, remand is necessary for the 2 ALJ to adequately evaluate the persuasiveness of Dr. Odenthal’s opinion pursuant to the regulatory 3 factors and reevaluate the RFC as warranted by further consideration of the evidence.

4 3. Subjective Testimony 5 The ALJ must provide specific, clear, and convincing reasons, supported by substantial 6 evidence, for rejecting a claimant’s subjective symptom testimony.3 Trevizo v. Berryhill, 871 F.3d 7 664, 678 (9th Cir. 2017); Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996). An ALJ may reject 8 a claimant’s symptom testimony when it is contradicted by the medical evidence, but not when it 9 merely lacks support in the medical evidence. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 10 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for 11 rejecting a claimant’s subjective testimony.”); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 12 2005) (“[L]ack of medical evidence cannot form the sole basis for discounting pain testimony.”). 13 Plaintiff alleges that she is unable to work because her epilepsy, vertigo, and lower spine

14 impairments make her miss work, make mistakes, and because stress and pressure increases 15 seizure activity. AR 258, 289. Plaintiff alleges that she experiences fatigue, falls asleep, is unable 16 to concentrate or focus, loses track of time, is unable to drive when vertigo, nausea, or vomiting 17 occurs, has memory loss and forgets what she is doing, and is unable to type, write, read, or focus. 18 AR 289. Plaintiff alleges that these symptoms cause her to be tardy, miss deadlines, and miss work. 19 AR 289. At the hearing, Plaintiff testified that she cannot sit for longer than 10 to 15 minutes 20 without experiencing back pain, that she falls asleep when sitting, and that she drops things. AR 53. 21

22 3 Effective March 28, 2016, the Social Security Administration (SSA) eliminated the term “credibility” from its policy and clarified the evaluation of a claimant’s subjective symptoms is not an examination of 23 character. SSR 16-3p. The Court continues to cite to relevant case law utilizing the term credibility. 1 Plaintiff alleges that her impairments affect her ability to lift, bend, stand, reach, walk, sit, talk, 2 see, remember, complete tasks, concentrate, understand, follow instructions, and use her hands. 3 AR 294.

4 The ALJ found that there was “no persuasive corroborating evidence for duration, 5 frequency, and intensity of symptoms and limitation alleged as disabling” and that there is “[n]o 6 objective evidence of psychological abnormality reasonably expected to result in the degree of 7 limitation alleged.” AR 22. 8 Plaintiff argues that the ALJ erred by finding that there was no corroborating or objective 9 evidence to support Plaintiff’s alleged degree of limitation. Dkt. 10, at 8–9. When evaluating 10 whether a claimant’s subjective symptoms limit their capacity for work, an ALJ considers the 11 extent to which such allegations are consistent with the objective evidence and other evidence in 12 the record. 20 C.F.R. §§ 404.1529(c), 416.929(c). Regarding Plaintiff’s back pain,4 the ALJ found 13 that, although an August 2019 MRI showed degenerative disc disease, “there was no obvious root

14 compression” and that a physical exam noted normal gait, negative straight leg raise, and only 15 minimal tenderness to palpation in her back. AR 22. As with the medical opinion evidence, the 16 ALJ failed to explain how and why this evidence was inconsistent with Plaintiff’s testimony that 17 back pain causes functional limitations, including that she cannot sit for longer than 10 to 15 18 minutes before experiencing back pain, that she drops thing, and that her impairments further affect 19 her ability to lift, bend, stand, reach, and walk. Therefore, the ALJ failed to provide specific, clear, 20 and convincing reasons, supported by substantial evidence, for discounting Plaintiff’s symptom 21 22

4 Plaintiff does not challenge the ALJ’s evaluation of Plaintiff’s allegations of symptoms from her seizure 23 disorder. See Dkt. 10, at 11 (conceding that “Plaintiff’s seizure disorder eventually came under some control with treatment”). 1 testimony regarding disabling back pain.5 Moreover, to the extent that the ALJ discounted 2 Plaintiff’s testimony solely by finding that the medical evidence did not support her alleged 3 limitations, this was error. See 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (“[W]e we will not

4 reject your statements about the intensity and persistence of your pain or other symptoms or about 5 the effect your symptoms have on your ability to work solely because the available objective 6 medical evidence does not substantiate your statements.”). 7 Plaintiff argues that the ALJ erred by finding that Plaintiff received routine conservative 8 treatment for her back impairment. Dkt. 10, at 10. Conservative treatment is “sufficient to discount 9 a claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 750– 10 51 (9th Cir. 2007). The ALJ found that “[r]outine conservative treatment and recommendations 11 suggest symptoms not as limiting as alleged.” AR 22. However, although the ALJ explained his 12 reasoning with less-than-ideal clarity, the ALJ did not clearly reject Plaintiff’s allegations of 13 disabling back pain based on conservative treatment. Rather, it is reasonably apparent that the ALJ

14 rejected only Plaintiff’s allegations regarding her disabling seizures, and not Plaintiff’s allegations 15 of disabling back pain, based on routine and conservative treatment. See AR 22 (describing 16 medication controlling Plaintiff’s seizures). Plaintiff does not challenge the ALJ’s findings 17 regarding Plaintiff’s seizure disorder. See Dkt. 10, at 11 (“Plaintiff’s seizure disorder eventually 18 came under some control with treatment.”). Because it is not reasonably apparent that the ALJ 19 rejected Plaintiff’s allegations regarding disabling back pain based on evidence of routine and 20 conservative treatment, Plaintiff has not shown that the ALJ erred. 21 5 Plaintiff further argues that the ALJ failed to acknowledge important objective evidence related to 22 Plaintiff’s back and shoulder impairments, including evidence of Plaintiff’s disc bulge being in contact with the nerve route, an annular tear, and a tear in Plaintiff’s rotator cuff. Dkt. 10, at 9. However, “the key question is not whether there is substantial evidence that could support a finding of disability, but whether 23 there is substantial evidence to support the Commissioner’s actual finding that claimant is not disabled.” Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). 1 The Commissioner argues that the record contains affirmative evidence of malingering. 2 Dkt. 11, at 2–3. Although the ALJ did not make a finding of malingering, the Commissioner argues 3 that “‘mere evidence’ of malingering in the record should be sufficient to obviate the clear and

4 convincing standard of review.” Id. at 3 n.1; see Carmickle, 533 F.3d at 1160 (the clear and 5 convincing standard does not apply “when there is affirmative evidence that the claimant is 6 malingering”). The Commissioner relies on an opinion from Dr. Lezlie Pickett, Ph.D., who opined 7 that Plaintiff’s self-reports were “clearly suspect for contradictions, inconsistencies response bias 8 and malingering” and “not at all credible.” Dkt. 11, at 4 (citing AR 501–3). At the hearing, 9 Plaintiff’s counsel raised concerns about the reliability of Dr. Pickett’s opinions, noting that the 10 doctor “clearly makes personal attacks on these claimants.” AR 40–41. Although the ALJ noted 11 the inconsistencies identified by Dr. Pickett, the ALJ did not adopt the doctor’s opinions regarding 12 malingering or Plaintiff’s lack of credibility. AR 23, 25. Further, neither party argues that the ALJ 13 erred when evaluating Dr. Pickett’s opinion. Because the ALJ declined to adopt Dr. Pickett’s

14 opinion regarding malingering and did not independently make a finding of malingering based on 15 Dr. Pickett’s opinion, the Court is not persuaded that it should second-guess the ALJ’s 16 determination against making a finding of malingering. See Brown-Hunter v. Colvin, 806 F.3d 17 487, 494 (9th Cir. 2015) (“[T]he credibility determination is exclusively the ALJ’s to make, and 18 ours only to review.”); see also Bray, 554 F.3d at 1226 (the Court must “review the ALJ’s decision 19 based on the reasoning and factual findings offered by the ALJ”). 20 As discussed above, the ALJ failed to provide specific, clear, and convincing reasons to 21 discount Plaintiff’s subjective symptom testimony regarding disabling back pain. On remand, the 22 ALJ should reevaluate Plaintiff’s subjective symptom testimony and revaluate the RFC as 23 warranted by further consideration of the evidence. 1 4. Lay Witness Testimony 2 Plaintiff argues that the ALJ improperly discounted the lay witness testimony of Plaintiff’s 3 mother, daughter, and friend. Dkt. 10, at 11–12. “Lay testimony as to a claimant’s symptoms is

4 competent evidence that an ALJ must take into account, unless he or she expressly determines to 5 disregard such testimony and gives reasons germane to each witness for doing so.” Lewis v. Apfel, 6 236 F.3d 503, 511 (9th Cir. 2001).6 7 The ALJ found that the lay witnesses “are not medically trained to make exacting 8 observations as to the date, frequencies, types, and degrees of medical signs and symptoms, or the 9 frequency or intensity of unusual moods or mannerisms.” AR 25. The ALJ further found that the 10 lay witness statements “are simply not consistent with the preponderance of the opinions and 11 observations by medical doctors in this case.” AR 25 12 Plaintiff argues that the ALJ erred by rejecting the lay witness statements because they are 13 “not medically trained.” Dkt. 10, at 11. An ALJ may not reject lay witness testimony based on its

14 relevance or irrelevance to medical conclusions. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 15 2008); see also Dodrill v. Shalala, 12 F.3d 915, 918–19 (9th Cir. 1993) (“[F]riends and family 16 members in a position to observe a claimant’s symptoms and daily activities are competent to 17 testify as to her condition.”). Therefore, the ALJ erred by rejecting the lay witness statements based 18 on the witnesses’ lack of medical training. 19 Plaintiff next argues that the ALJ erred by rejecting the lay witness statements by finding 20 that they were inconsistent with the medical evidence. Dkt. 10, at 12. “One reason for which an 21 ALJ may discount lay testimony is that it conflicts with medical evidence.” Lewis, 236 F.3d at 22

23 6 The Ninth Circuit has not yet addressed whether the 2017 regulations in relation to the standard of review for lay witness opinions. 1 511. The ALJ found that the medical opinion evidence “support[s] the finding that claimant retains 2 the ability to perform a range of light work with simple, routine tasks.” AR 25–26. However, the 3 ALJ failed to identify reasons for discounting the lay testimony that were germane to each

4 individual who testified. See Smolen, 80 F.3d at 1289 (“[W]holesale dismissal of the testimony of 5 all the witnesses as a group . . . does not qualify as a reason germane to each individual who 6 testified.”). Therefore, the ALJ erred by rejecting the lay witness statements because his reasoning 7 was not germane to each lay witness. 8 The Commissioner argues that the ALJ’s error was harmless because the lay witnesses 9 described limitations that were substantially the same as those alleged by Plaintiff. Dkt. 11, at 9. 10 “Where lay witness testimony does not describe any limitations not already described by the 11 claimant, and the ALJ’s well-supported reasons for rejecting the claimant’s testimony apply 12 equally well to the lay witness testimony,” the ALJ’s error in evaluating the lay witness testimony 13 is harmless. Molina, 674 F.3d at 1117. As discussed above, the ALJ failed to provide well-

14 supported reasons for rejecting Plaintiff’s subjective symptom testimony. Therefore, the ALJ’s 15 error in evaluating the lay witness testimony in this matter was not harmless. 16 5. Remand 17 Plaintiff requests remand for an award of benefits or, in the alternative, for further 18 administrative proceedings. Dkt. 10, at 13–15. The Court may remand for an award of benefits 19 where “the record has been fully developed and further administrative proceedings would serve 20 no useful purpose.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). Here, as 21 discussed above, further administrative proceedings are necessary in order for the ALJ to reconcile 22 the conflicts between the RFC and the DOT and, if necessary, explain the ALJ’s departure from 23 the DOT at step five, to reevaluate the persuasiveness of Dr. Odenthal’s opinion pursuant to the 1 regulatory factors, to reevaluate Plaintiff’s symptom testimony and the lay witness testimony, and 2 to reevaluate the RFC as warranted by further consideration of the evidence. 3 CONCLUSION

4 For the reasons set forth above, this matter is REVERSED and REMANDED for further 5 administrative proceedings. 6 DATED this 8th day of November, 2022.

7 A 8 MARY ALICE THEILER 9 United States Magistrate Judge

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