Masoumian v. Kijakazi

• Court: District Court, S.D. California
• Decided: January 2, 2024
• Docket: 3:22-cv-01729
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MAHNAZ M., Case No.: 22-cv-1729-BGS

12 Plaintiff, ORDER REGARDING JOINT 13 v. MOTION FOR JUDICIAL REVIEW [ECF NO. 20] AND AFFIRMING 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, FINAL DECISION OF THE 15 COMMISSIONER OF SOCIAL Defendant. SECURITY 16

17 On November 4, 2022, Plaintiff Mahnaz M.1 commenced this action against 18 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, for judicial review 19 under 42 U.S.C. § 405(g) of a final adverse decision for a period of disability and 20 disability insurance benefits. (ECF No. 1.) On November 14, 2022, Plaintiff consented to 21 the undersigned’s jurisdiction to conduct all proceedings in this case. (ECF No. 7.)2 22 23 24 1 The Court refers to Plaintiff using only her first name and last initial pursuant to the 25 Court’s Civil Local Rules. See S.D. Cal. Civ. R. 7.1(e)(6)(b). 2 The United States has informed the Court of its general consent to Magistrate Judge 26 jurisdiction in cases of this nature. See S.D. Cal. Gen. Order No. 707 (Apr. 12, 2019). 27 1 Defendant filed the Administrative Record on March 17, 2023. (ECF No. 15.) On August 2 18, 2023, the parties filed a Joint Motion for Judicial Review of Final Decision of the 3 Commissioner of Social Security. (ECF No. 20.) 4 For the following reasons, the Court AFFIRMS the final decision of the 5 Commissioner. 6 I. BACKGROUND 7 A. Factual and Procedural History 8 Plaintiff, who was born in 1971, previously worked as a health information 9 technician with Kaiser Permanente from 2001 to 2014, office clerk with Aerotek from 10 2014 to 2016, and clinical coordinator with Blue Shield of California from 2018 to 2019. 11 (AR 55-58, 186, 217.)3 She was laid off from her position at Blue Shield on April 25, 12 2019, and collected unemployment benefits thereafter. (AR 58-59, 181.) On or about July 13 28, 2020, Plaintiff filed an application for disability insurance benefits under Title II of 14 the Social Security Act. (AR 139-44.) She alleged that she had been disabled since 15 October 27, 2019, due to post-traumatic stress disorder (“PTSD”). (AR 181.) Plaintiff’s 16 application was denied on initial review and again on reconsideration. (AR 90-93, 95-99.) 17 An administrative hearing was conducted on May 20, 2021, by Administrative Law 18 Judge (“ALJ”) Randolph E. Schum. (AR 48.) On July 29, 2021, the ALJ issued a 19 decision and concluded that Plaintiff was not disabled. (AR 32-43.) Plaintiff requested a 20 review of the ALJ’s decision; the Appeals Council denied the request on September 8, 21 22 23 24 3 “AR” refers to the Administrative Record filed on March 17, 2023. (ECF No. 15.) The 25 Court’s citations to the AR use the page references on the original document rather than the page numbers designated by the Court’s case management/electronic case filing 26 system (“CM/ECF”). For all other documents, the Court’s citations are to the page 27 numbers affixed by CM/ECF. 1 2022. (AR 1-6.) Plaintiff then commenced this action pursuant to 42 U.S.C. § 405(g). 2 (AR 245.) 3 Plaintiff provided the following explanation of her PTSD in a function report dated 4 November 1, 2020: 5 My PTSD which is from many physical, emotional[,] psychological and sexual abuse has made my life an absolute nightmare. I am living this 6 nightmare over & over. It’s killing me slowly. I relive those events on a 7 daily basis. I have constant flashbacks. I have negative feelings, hard time to trust, holding on to jobs. My high general & social anxiety causing me so 8 much of physical reactions such as chronic cough for over 15 years, stomach 9 & acid issues, allergy & asthma[,] urology issues, [rheumatology] issues & much more. 10

11 . . . .

12 I come from a history of physical abuse by my uncle right after loss of my 13 father (I was only 8 years old). Then I grew up with a very abus[ive], [narcissistic] & neglectful mother. I’ve been forced to an awful marriage. 14 The man who was physically, emotionally, sexually, financially abused me. 15 The worse was the time that he by manipulating the system legally took the custody of my only child. He destroyed my son’s life as well—when finally 16 he lost the custody due to many situations (after 9 years), my son was 17 involved in [the] wrong crowds & drug abuse. From that time I’ve been emotionally abused by the system & his destructive path of living. 18

19 (AR 238, 245.) 20 Plaintiff’s psychologist, Sean House, Ph.D., submitted a letter to the 21 Department of Social Services dated September 5, 2020. (AR 269.) The letter 22 stated: 23 I have [met] with [Plaintiff] in weekly pscyhotherapy since July 2019. To date, we have done 52 sessions. Her primary diagnosis is Post-Traumatic 24 Stress Disorder. She also experiences various degrees of anxiety and 25 depression. [Plaintiff’s] PTSD is characterized by interpersonal conflict, and continued ruminations about various aspects of the past, including being set 26 up for an arranged marriage by her mother, which resulted in an unhappy 27 1 marriage, abandonment by her family, moving from Iran to the United States with her husband and son. Being abandoned by her husband. Having her son 2 become a victim of the family court system and legal system. Losing her 3 rights as a parent until her son was 13. Having to raise a problematic teenager on her own, and seeing him descend into drug addiction and 4 criminal behavior which resulted in his incarceration, and difficult 5 interactions in the workplace. Client maintains a sense of being victimized and abandoned by everyone. Her attitude toward others is highly suspicious 6 and judgmental, as she fears their judgment and being treated poorly by 7 them. We have processed over a dozen negative interactions with various people that client has experienced in the past year. It is her highly 8 dysfunctional interpersonal issues that makes her unlikely to be able to 9 maintain a job. Client would like to be able to work, but does not believe that she will find a workplace that will treat her with basic dignity. Her 10 interpersonal interactions are characterized by conflict, which will likely 11 keep her from maintaining employment.

12 (Id.) 13 On September 18, 2020, state agency consultant Michael D’Adamo, Ph.D. 14 observed, “[Plaintiff] has been treated on an [outpatient] basis since [July 2019]. A 15 review of a sampling of [Dr. House’s] notes revealed that [Plaintiff] is not suffering any 16 severe psychopathology. She has plans to attend college. She is capable of adapting to 17 jobs where the social demands are modest.” (AR 72; see also AR 83 (same finding by 18 state agency consultant R. Paxton, M.D. on reconsideration of Plaintiff’s claim).) 19 B. ALJ’s Decision 20 In rendering his decision, the ALJ followed the Commissioner’s five-step 21 sequential evaluation process. See 20 C.F.R. § 404.1520; see also Tackett v. Apfel, 180 22 F.3d 1094, 1098-99 (9th Cir. 1999) (describing five steps). The ALJ determined at step 23 one that Plaintiff had not engaged in substantial gainful activity since October 27, 2019, 24 the alleged onset date. (AR 34.) He noted that Plaintiff received unemployment benefits 25 26 27 1 after being let go from her job. (Id.)4 At step two, the ALJ found that Plaintiff’s severe 2 impairments included post-traumatic stress disorder and an adjustment disorder with 3 anxiety. (Id.) The ALJ determined at step three that Plaintiff did not have an impairment 4 or combination of impairments that met or medically equaled a listed impairment. (AR 5 36.) He then found that Plaintiff retained the residual functional capacity (“RFC”) to 6 perform a full range of work at all exertional levels but could have only “contact with 7 others [that is] casual and not more than occasional” and could not work in a setting that 8 includes “constant/regular public contact or more than occasional handling of customer 9 complaints.” (AR 38.) At step four, the ALJ determined that Plaintiff was unable to 10 perform her past relevant work as a general clerk, medical records clerk, or quality 11 assurance coordinator because these jobs required “contact with others [that] was more 12 than occasional or casual.” (AR 41.) At step five, the ALJ stated that Plaintiff was able to 13 perform the requirements of the representative occupations of marker, restaurant kitchen 14 helper, and grocery store bagger. (AR 42.) Accordingly, the ALJ found that Plaintiff had 15 not been under a disability from October 27, 2019, through the date of his decision. (Id.) 16 C. Disputed Issues 17 The parties have briefed two issues in their joint motion which Plaintiff asserts are 18 grounds for reversal: (1) whether the ALJ properly considered Plaintiff’s testimony and 19 (2) whether the ALJ gave germane reasons for rejecting lay witness testimony. 20 II. LEGAL STANDARDS 21 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek 22 judicial review of a final agency decision of the Commissioner. 42 U.S.C. § 405(g). The 23

24 25 4 Receipt of unemployment benefits can undermine a claimant’s alleged inability to work full-time as it demonstrates that the claimant is holding herself out as available for work. 26 See Carmickle v. Comm’r, 533 F.3d 1155, 1161-62 (9th Cir. 2008) (citing Copeland v. 27 Bowen, 861 F.2d 536, 542 (9th Cir. 1988)). 1 scope of judicial review is limited, however, and the denial of benefits “‘will be disturbed 2 only if it is not supported by substantial evidence or is based on legal error.’” Brawner v. 3 Sec’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. 4 Heckler, 803 F.2d 528, 529 (9th Cir. 1986)); see also Garrison v. Colvin, 759 F.3d 995, 5 1009 (9th Cir. 2014). Substantial evidence means “‘more than a mere scintilla but less 6 than a preponderance; it is such relevant evidence as a reasonable mind might accept as 7 adequate to support a conclusion.’” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 8 1997) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); see also Biestek 9 v. Berryhill, 587 U.S. ----, ----, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) 10 (“[W]hatever the meaning of ‘substantial’ in other contexts, the threshold for . . . 11 evidentiary sufficiency [under the substantial evidence standard] is not high.”). The court 12 must consider the entire record, including the evidence that supports and detracts from 13 the Commissioner’s conclusions. Desrosiers v. Sec’y of Health & Human Servs., 846 14 F.2d 573, 576 (9th Cir. 1988). If the evidence supports more than one rational 15 interpretation, the court must uphold the ALJ’s decision. Burch v. Barnhart, 400 F.3d 16 676, 679 (9th Cir. 2005); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). The district 17 court may affirm, modify, or reverse the Commissioner’s decision. 42 U.S.C. § 405(g). 18 The matter may also be remanded to the Social Security Administration for further 19 proceedings. Id. 20 III. DISCUSSION 21 A. Evaluation of Subjective Symptom Testimony 22 Plaintiff’s first argument is that the ALJ failed to articulate clear and convincing 23 reasons to discount her testimony regarding her subjective symptoms. (Joint Mot., ECF 24 No. 20 at 4-16.) Defendant counters that the ALJ properly evaluated Plaintiff’s alleged 25 symptoms and found they were inconsistent with the objective medical evidence, 26 Plaintiff’s reported activities, and the opinions of two state agency consultants in the 27 1 record. (Id. at 18-24.) The Court finds that the ALJ properly discounted Plaintiff’s 2 testimony that her PTSD condition precluded her from working. 3 1. Applicable standards 4 It is up to the ALJ “to determine credibility, resolve conflicts in the testimony, and 5 resolve ambiguities in the record.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) 6 (quoting Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)). An 7 ALJ engages in a two-step analysis to determine the extent to which a claimant’s report 8 of symptoms must be credited. First, the ALJ must decide whether the claimant has 9 presented objective medical evidence of an underlying impairment which could 10 reasonably be expected to produce the pain or other symptoms alleged. Garrison, 759 11 F.3d at 1014; see also SSR 16-3p, 2017 WL 5180304, at *3 (Oct. 25, 2017); 20 C.F.R. § 12 404.1529(b). Second, the ALJ evaluates the intensity and persistence of the claimant’s 13 symptoms to determine the extent to which they limit the ability to perform work-related 14 activities. SSR 16-3p, 2017 WL 5180304, at *3; 20 C.F.R. § 404.1529(c). When the ALJ 15 finds that a claimant is not malingering, “the ALJ can reject the claimant’s testimony 16 about the severity of her symptoms only by offering specific, clear and convincing 17 reasons for doing so.” Garrison, 759 F.3d at 1014-15; see also Lambert, 980 F.3d at 18 1277; Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022). This requires the ALJ to 19 “specifically identify the testimony [from a claimant] she or he finds not to be credible 20 and . . . explain what evidence undermines that testimony.” Lambert, 980 F.3d at 1277 21 (citing Treichler, 775 F.3d at 1102). 22 2. Plaintiff’s subjective symptom testimony 23 At the administrative hearing, Plaintiff provided the following testimony in 24 response to the ALJ’s inquiry about why she was unable to work: 25 Because I can’t; I applied many, many, many places although I didn’t get it. Dealing with so many other things going on in my life. . . . So many 26 particular things -- I have to say, I’m so sorry, but politics -- terrible politics, 27 1 or discrimination so much that it’s really frustrate me terribly -- affected me. . . . [¶] I am still dealing with a lot of PTSD[.] . . . [¶] I told you it affected 2 me, unfortunately, after being so mistreated at work; I had extreme fear and 3 anxiety that it hold me back to get even close to that environment. . . . I have extreme phobia; I have extreme anxiety around these people. 4

5 (AR 59-60.) She also testified that while she felt she was “too old to . . . start over,” she 6 was hoping to return to college to get her degree because “if I’m not able to get back to 7 work, then I have to do something with my life, and possibly I would be by trying[.]” 8 (AR 61.) 9 Plaintiff submitted two function reports dated September 8 and November 1, 2020, 10 respectively. (AR 204-11, 238-45.) In these reports, Plaintiff indicated that she was 11 unable to work because she had trouble concentrating, experienced memory problems, 12 and had fatigue from poor sleep patterns. (AR 204.) She was “unable to focus” and felt a 13 “lack of motivation” with respect to her hobbies and interests. (AR 208.) She described 14 having problems getting along with family, friends, neighbors, and others because she did 15 not have much patience with people. (Id.) She had become more isolated since the onset 16 of her disabling condition, but also noted that she had not gone anywhere on a regular 17 basis for the prior six months due to COVID-19. (Id.) She wrote that she spent most of 18 her time in her apartment and took several naps a day because sleep served as a coping 19 mechanism. (AR 238.) She indicated that at times she was “very slow due to lack of 20 energy [and] low mood.” (Id.) 21 In her first report, Plaintiff checked off only one ability—concentration—as being 22 affected by her condition. (AR 209.) In her subsequent report, completed just two months 23 later after the initial denial of her claim, Plaintiff checked off seven abilities impacted by 24 her condition: memory, completing tasks, concentration, understanding, following 25 instructions, using hands, and getting along with others. (AR 243.) Additionally, in her 26 initial function report, Plaintiff stated that she got along with authority figures “pretty 27 1 well” and had never been fired or laid off from a job because of problems getting along 2 with other people. (AR 209.) In contrast, Plaintiff’s subsequent function report indicated 3 that she avoided authority figures as much as possible and had been laid off by Blue 4 Shield of California because of problems getting along with other people. (AR 243.) She 5 indicated that she had been “bullied a lot” there and was “laid off unfairly [and] in a very 6 abusive way.” (Id.) 7 3. ALJ’s findings regarding Plaintiff’s subjective symptom testimony 8 The ALJ’s formulation of Plaintiff’s residual functional capacity, in which he 9 found that Plaintiff could perform a full range of work at all exertional levels but could 10 have only “contact with others [that is] casual and not more than occasional” and could 11 not work in a setting that includes “constant/regular public contact or more than 12 occasional handling of customer complaints,” reflects that he did not reject Plaintiff’s 13 allegations in their entirety. (See AR 38.) Rather, he discounted them. In so finding, the 14 ALJ determined that Plaintiff satisfied step one of the two-step analysis by finding that 15 her medically determinable impairments could reasonably be expected to cause some of 16 her alleged symptoms. (AR 39.) At the second step, the ALJ found that Plaintiff’s 17 testimony regarding intensity, persistence, and limiting effects of her symptoms were not 18 entirely consistent with the medical evidence and other evidence in the record. (Id.) He 19 explained: 20 [T]he claimant has significantly full activities of daily living. She has only non-exertional limitations and restrictions. However, even in her Function 21 Report, and the Adult Third Party Function Report,5 the claimant was able to 22 handle most non-exertional tasks such as multi-step tasks (cooking full meals for two to three hours per day),6 driving, being able to go out alone, 23

24 25 5 Plaintiff’s friend, Farshen S., completed an Adult Third Party Function Report on Plaintiff’s behalf. (AR 192-99.) 26 6 Plaintiff’s function report actually indicates that she cooked for one to two hours per 27 day. (AR 206, 240.) 1 shopping in stores for groceries, clothes and household necessities, and handling all of her personal and household finances. While she has reported 2 problems getting along with others, she reported that she communicated with 3 others in almost every modality including being able to handle ZOOM meetings. 4

5 In fact, she enjoyed personal contact such as chatting and having tea, as well as going for walks. The claimant was able to concentrate, attend, and persist 6 as noted by her hobbies of watching documentaries and doing needlework. 7 Moreover, she has reported in her records that she has thought about returning to college. Accordingly, after a thorough review of the record as a 8 whole, the undersigned found the above-reference[d] mental residual 9 functional capacity to be consistent with the record as a whole, including the testimony given at the hearing and, therefore, appropriate. The undersigned 10 has taken both of these Reports into consideration, noting [that] the 11 claimant’s subjective allegations were not always consistent with the medical evidence of record, nor could they always be supported by the 12 record as a whole, or specific evidence. That said, the claimant’s subjective 13 allegations appeared to outweigh the objective medical data, or overall evidence of record. 14

15 (Id.) 16 4. Analysis 17 a. Daily activities 18 An ALJ may properly consider the claimant’s daily activities in evaluating 19 subjective symptom testimony. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 20 2002); see also 20 C.F.R. § 404.1529(c)(3)(i) (claimant’s daily activities relevant to 21 evaluating symptoms); SSR 16-3p, 2017 WL 5180304, at *7 (same). Daily activities may 22 form the basis of an adverse credibility determination when evidence concerning the 23 claimant’s daily activities contradicts his or her testimony, or when the activities meet the 24 threshold for full-time work. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also 25 Smith v. Kijakazi, 14 F.4th 1108, 1114 (9th Cir. 2021). “One does not need to be ‘utterly 26 incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 27 1 2001) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Nevertheless, “[e]ven 2 where [a claimant’s] activities suggest some difficulty functioning, they may be grounds 3 for discrediting the claimant’s testimony to the extent that they contradict claims of a 4 totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) 5 (citations omitted) (superseded on other grounds by 20 C.F.R. § 404.1502(a) (2017)); see 6 also Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (“Engaging in daily 7 activities that are incompatible with the severity of symptoms alleged can support an 8 adverse credibility determination.”). 9 Describing her daily activities, Plaintiff listed cooking, paying bills, shopping, 10 walking, joining “self-improvement” Zoom meetings, and reading. (AR 205.) She 11 reported spending one to two hours a day preparing Mediterranean food, and her 12 household chores included driving, cleaning, reading, and learning. (AR 206.) She was 13 able to go out alone, and handled her own grocery, clothing, and household shopping. 14 (AR 207.) She was also able to pay her own bills and handle finances. (Id.) Her hobbies 15 and interests included watching documentaries, walking, sewing, and needlework. (AR 16 208.) Her social activities included interacting with others in person and on the phone, 17 email, text, and video chats, such as Zoom. (Id.) She would “have tea [and] chat” or take 18 walks with others. (Id.) Citing Plaintiff’s responses, the ALJ concluded that Plaintiff had 19 “significantly full activities of daily living” despite her limitations and found this 20 undermined her subjective symptom testimony. (AR 39.) 21 Plaintiff contends that her daily activities did not constitute a clear and convincing 22 reason to discount her subjective complaints because her “‘sporadic activities’ do not 23 contradict her testimony nor do they demonstrate an ability to spend a substantial part of 24 the day doing activities transferable to a full-time work setting.” (Joint Mot., ECF No. 20 25 26 27 1 at 12.)7 But as the ALJ explained, Plaintiff’s statements about her social interactions, 2 including “communicat[ing] with others in almost every modality including being able to 3 handle ZOOM meetings,” were inconsistent with her reported problems with getting 4 along with others. (AR 39.) Likewise, the ALJ found that Plaintiff’s preparation of 5 Mediterranean foods daily for one to two hours a day and watching documentaries 6 contradicted her statement that she could only pay attention for ten to twenty minutes at a 7 time. (AR 37, citing AR 209.) The ALJ further observed that Plaintiff’s ability to perform 8 “multi-step tasks such as driving, cooking, cleaning, household work, reading, and 9 ‘learning,’” among other activities, supported only a mild limitation in Plaintiff’s ability 10 to understand, remember, or apply information. (AR 37.) The ALJ could reasonably 11 conclude that Plaintiff’s daily activities contradicted her testimony that she was incapable 12 of working. 13 Plaintiff argues further that the ALJ “made no effort to state how [Plaintiff’s daily 14 activities] relate to the ability to perform work activity.” (Joint Mot., ECF No. 20 at 14.) 15 This argument ignores that an ALJ may rely on a claimant’s daily activities to discount 16 subjective symptom testimony when evidence concerning the claimant’s daily activities 17 contradicts the claimant’s testimony or when the activities meet the threshold for full- 18 time work. See Orn, 495 F.3d at 639. Thus, the ALJ was not required to provide an 19 explanation connecting Plaintiff’s daily activities to the requirements of full-time work if, 20 as here, her daily activities contradicted her testimony that she was disabled. 21 The ALJ also determined that Plaintiff’s plan to return to college was inconsistent 22 with her subjective allegations. (AR 39.) Plaintiff does not contest this finding. An ALJ 23 may properly rely upon a return to school to discount a claimant’s allegation of disability. 24 25 7 Plaintiff’s initial arguments regarding the sufficiency of the ALJ’s decision are 26 boilerplate and present an inaccurate characterization of the decision. (See Joint Mot., 27 ECF No. 20 at 8-11.) Thus, they will not be addressed by the Court. 1 See Johnson v. Colvin, 671 F. App’x 519, 520 (9th Cir. 2016) (“[M]atriculating in basic 2 college classes [along with other daily activities is] clearly inconsistent with the notion 3 that [claimant] could not work at all.”); Lindquist v. Colvin, 588 F. App’x 544, 546 (9th 4 Cir. 2014) (providing that enrollment in community college evidenced that the claimant’s 5 limitations were not as pronounced as his testimony suggested). Here, the record 6 demonstrates that Plaintiff planned to return, and indeed returned, to college. During her 7 March 20, 2020 appointment, at beginning of COVID-19 pandemic, Plaintiff reflected to 8 Dr. House, her psychologist, “that this [was] a good time for her to identify a school 9 program and degree to focus on.” (AR 291.) Dr. House’s notes further stated, “Client 10 noted how she wants to get a degree that will allow her to make a decent income, which 11 she identified as $22 an hour. She would also like it to be relatively quick and in a field 12 that she wants to work.” (Id.; see also AR 288, 289, 290 (reflecting that Plaintiff sent her 13 transcripts to several schools for evaluation); AR 287 (Plaintiff reported that she had 14 applied to two California state schools, San Marcos and San Francisco); AR 328 15 (Plaintiff advising that she had been accepted into San Francisco State University 16 (“SFSU”)); AR 694, 696, 766 (indicating that Plaintiff had registered for classes at 17 SFSU); AR 825 (Plaintiff reporting that she had started school). 18 Plaintiff’s daily activities, including her return to college, constituted clear and 19 convincing reasons for the ALJ to discredit her testimony regarding her subjective 20 symptoms. 21 b. Inconsistency with the medical evidence and record as a whole 22 An ALJ is directed to consider all of the evidence in a claimant’s record when 23 evaluating the individual’s symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1. 24 This includes objective medical evidence as well as statements from the individual, 25 medical sources, and any other sources that might have information about the claimant’s 26 symptoms. Id. at *5, 6. Although an ALJ may not disregard a claimant’s testimony 27 1 “solely because it is not substantiated affirmatively by objective medical evidence,” 2 (see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)), the ALJ may 3 consider whether the alleged symptoms are consistent with the medical evidence as one 4 factor in his evaluation. See Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). 5 “When objective medical evidence in the record is inconsistent with the claimant’s 6 subjective testimony, the ALJ may . . . weigh it as undercutting such testimony.” Smartt, 7 53 F.4th at 498; see also Carmickle v. Comm’r, 533 F.3d 1155, 1161 (9th Cir. 2008) 8 (“Contradiction with the medical record is a sufficient basis for rejecting the claimant’s 9 subjective testimony.”) (citation omitted). 10 Here, the ALJ additionally discounted Plaintiff’s symptom allegations because 11 they were “not always consistent with the medical evidence of record, nor could they 12 always be supported by the record as a whole, or specific evidence.” (AR 39.) To support 13 this conclusion, the ALJ determined that, as found by the state agency physicians, Dr. 14 House’s treatment notes did not reveal severe psychopathology. (AR 40, referring to AR 15 72, 83.) The Court’s independent review of Dr. House’s treatment records confirms that 16 substantial evidence supports the ALJ’s determination. Notably, Dr. House’s reports are 17 replete with statements from Plaintiff indicating that she had reasons for not wanting to 18 work that were unrelated to disability. For example, Dr. House reported, “Client 19 expressed her interest in getting a job, but railed against the inhumanity of corporations 20 that don’t care about employees.” (AR 312; AR 297 (Plaintiff again discussing her belief 21 that companies are not “ethical and humane”.); see also AR 302 (“We also discussed her 22 thoughts about getting a job for [or] just going on disability. Client described the 23 advantages of not having to put up with the problem[s] . . . that jobs involve, having the 24 time to do what she wants to do, and being more available to meet someone who she 25 might get into a relationship with.”); AR 292 (“She described being unsure whether she 26 should pursue getting a job, returning to school, or trying to get in a relationship. . . . 27 1 Client tangented to describing how she doesn’t want to work for any Americans because 2 they’re all lazy or incompetent.”); AR 275 (“We returned to processing client’s 3 wondering if she would ever be able to get a job that she is able to feel respected and 4 succeed in.”) 5 Additionally, the record contains evidence that Plaintiff was looking for work 6 during the disability period, which undermines her testimony that her symptoms rendered 7 her unable to work. See Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) (affirming 8 ALJ’s adverse credibility finding based in part on claimant’s holding himself out as 9 available for work); see also AR 311 (“Client began by describing a job interview she 10 had today. She was disappointed to learn that the business is much bigger than she had 11 thought, as she wants to work for a small company, hoping she would be treated better. 12 Client wondered how long she should continue to look for work.”); AR 308 (“Client 13 described her frustration about a lost job opportunity due to not seeing an email in her 14 Spam folder that was time sensitive. This led to a return to her railing against the 15 inhumane capitalist system. . . . She continued to express her resentment of corporate 16 America, mentioning her interest in being able to work for herself.”); AR 305 (“She 17 began by stating that she has had several job interviews in the past week . . . [With 18 respect to the particular place she interviewed,] “[s]he did not like the low pay, and 19 wondered if it was worth it, compared to what she would get on disability.”); AR 304 20 (Plaintiff “stated that it was likely she was going to be offered one job but she turned it 21 down due to the low pay.”); AR 827 (“Client stated that she has continued to apply for 22 jobs but gets no response.”); AR 818 (“Client wondered whether she can work if she 23 receives disability money.”). 24 Based on the foregoing, the Court concludes that the ALJ articulated clear and 25 convincing reasons for discounting Plaintiff’s testimony regarding her subjective 26 symptoms, and his finding was supported by substantial evidence. 27 1 B. Lay Witness Testimony 2 Plaintiff’s second argument is that the ALJ failed to articulate legally sufficient 3 reasons to reject lay witness testimony from her friend, Farshen S. (Joint Mot., ECF No. 4 20 at 24-30.) Defendant contends that the revised 2017 regulations do not require an ALJ 5 to articulate his consideration of lay witness evidence. (Id. at 30-33.) The Court agrees 6 with Defendant. 7 1. Friend’s lay testimony 8 Plaintiff’s friend completed an Adult Third Party Function Report form on behalf 9 of Plaintiff on September 8, 2020. (AR 192-99.) She wrote that Plaintiff suffered from 10 PTSD and visited her therapist every week. (AR 192.) She stated that Plaintiff had told 11 her that she has nightmares. (AR 193.) The friend further related that Plaintiff’s hobbies 12 and interests included walking, cooking, and being creative, but she sometimes suffered a 13 lack of motivation to engage in these activities. (AR 196.) She said that Plaintiff’s 14 concentration and understanding were affected by her PTSD, and that Plaintiff “does not 15 pay attention to details” and “loses patience easily.” (AR 197.) The friend also explained 16 that Plaintiff had a hard time trusting authority figures, got agitated easily, and had a hard 17 time adapting to change. (AR 198.) 18 2. Analysis 19 Plaintiff, relying on Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993), 20 C.F.R. 20 § 404.1513(a)(4), and other authorities, contends that the ALJ was required to articulate 21 “germane reasons” to disregard Plaintiff’s friend’s lay witness testimony. (Joint Mot., 22 ECF No. 20 at 24-30.) In Dodrill, the Ninth Circuit, applying pre-2017 regulations, 23 required ALJs to “give reasons that are germane to each witness” to discount the 24 testimony of lay witnesses. See Dodrill, 12 F.3d at 919. Under the revised 2017 25 regulations, however, the ALJ is “not required to articulate how [he] considered evidence 26 27 1 from nonmedical sources[.]” 20 C.F.R. § 404.1520c(d).8 “Nonmedical sources” include 2 the claimant, family members, and friends. Id. § 404.1502(e). Rather, an ALJ is required 3 only to consider evidence from nonmedical sources in evaluating a claimant’s disability 4 claim. See 20 C.F.R. § 404.1513(a)(4). Like other district courts considering this issue, 5 this Court finds that the revised regulations plainly allow for the ALJ to render a decision 6 on a plaintiff’s disability claim without articulating findings regarding lay witness 7 statements, so long as the witness testimony has been considered. See, e.g., Mary M. v. 8 Kijakazi, Case No. 20-cv-1457-AGS, 2022 WL 891445, at *6 (S.D. Cal. Mar. 25, 2022) 9 (“The Court concludes that ALJs are not required to articulate specific reasons for their 10 findings about the persuasiveness of nonmedical-source testimony, and instead must 11 merely show that they considered such evidence in deciding the claim.”); Schilling v. 12 Comm’r of Soc. Sec., Case No. 1:21-cv-01268-SAB, 2022 WL 17418343, at *14 (E.D. 13 Cal. Dec. 5, 2022) (“[T]he new regulations do not support a requirement that the ALJ 14 articulate ‘germane reasons’ for rejecting lay witness testimony, but only a requirement 15 that the lay testimony was ‘considered.’”); but see Sarah B. v. Comm’r of Soc. Sec., Case 16 No. 2:23-CV-564-DWC, 2023 WL 7126580, at *2 n.2 (W.D. Wash. Oct. 30, 2023) (“The 17 revised regulations expressly did not change requirements governing ALJs’ assessments 18 of lay witness testimony.”).9 19

20 21 8 For claims filed before March 27, 2017, the requirements for evaluating opinion evidence was set forth in 20 C.F.R. § 404.1527. Unlike the revised regulation, the pre- 22 2017 regulation specifically required the ALJ to articulate his consideration of 23 nonmedical sources. See 20 C.F.R. 404.1527(f)(2) (“The adjudicator generally should explain the weight given to opinions from these sources or otherwise ensure that the 24 discussion of the evidence in the determination or decision allows a claimant or 25 subsequent reviewer to follow the adjudicator’s reasoning[.]”). 9 The Ninth Circuit has not specifically addressed whether the ALJ is still required under 26 the revised regulations to provide germane reasons for discounting lay witness testimony. 27 Stephens v. Kijakazi, No. 22-35998, 2023 WL 6937296, at *2 (9th Cir. Oct. 20, 2023). 1 In this case, the ALJ, in his assessment of Plaintiff's subjective symptom 2 statements, referred to Plaintiffs friend’s third-party adult function report twice in 3 || conjunction with Plaintiff's function report. (AR 39.) He specifically indicated that he 4 || had taken both reports into consideration. (/d.) This was sufficient under the revised 5 regulations. 6 Moreover, even if the ALJ was still required to articulate how he evaluated the lay 7 || witness testimony, any failure to do so constituted harmless error. See Tommasetti v. 8 || Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (“harmless error . . . exists when it is clear 9 || from the record that the ALJ’s error was inconsequential to the ultimate nondisability 10 || determination”) (internal quotation marks and citation omitted). Plaintiffs friend’s 11 ||statements largely restated Plaintiff's own statements about her subjective symptoms. 12 || When a lay witness’s testimony is similar to a claimant’s subjective complaints, the 13 || ALJ’s analysis of the latter is equally available to the former. Valentine v. Comm Soc. 14 || Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (finding that the ALJ provided germane 15 reasons for rejecting third-party witness testimony similar to the claimant’s subjective 16 || testimony when the ALJ provided clear and convincing reasons for rejecting the 17 claimant’s subjective testimony). As discussed above, the ALJ provided legally sufficient 18 || reasons to discount Plaintiff's subjective complaints. These reasons would equally apply 19 the lay witness testimony contained in the third-party adult function report. 20 IV. CONCLUSION 21 For the foregoing reasons, the final decision of the Commissioner is AFFIRMED. 22 || The Clerk is directed to issue a judgment and close this case. 23 IT IS SO ORDERED. 24 Dated: January 2, 2024 Z p / / 25 on. Bernard G. Skomal 26 United States Magistrate Judge 27 18 28 22-cv-1729-BGS