2 FILED IN THE EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 3 Mar 27, 2023
4 SEAN F. MCAVOY, CLERK
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 JESSE M., NO: 2:22-CV-138-RMP 8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT AND GRANTING THE 10 COMMISSIONER OF SOCIAL COMMISSIONER’S MOTION FOR SECURITY, SUMMARY JUDGMENT 11 Defendant. 12
13 BEFORE THE COURT, without oral argument, are cross-motions for 14 summary judgment from Plaintiff Jesse M.1, ECF No. 10, and Defendant the 15 Commissioner of Social Security (the “Commissioner”), ECF No. 11. Plaintiff 16 seeks judicial review, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), of the 17 Commissioner’s denial of his claims for Social Security Income (“SSI”) and 18 19
1 In the interest of protecting Plaintiff’s privacy, the Court uses Plaintiff’s first 20 name and last initial. 21 1 Disability Insurance Benefits (“DIB”) under Titles XVI and II, respectively, of the 2 Social Security Act (the “Act”). See ECF No. 10 at 1– 2.
3 Having considered the parties’ motions, the administrative record, and the 4 applicable law, the Court is fully informed. For the reasons set forth below, the 5 Court denies Plaintiff’s Motion for Summary Judgment, ECF No. 10, and grants the
6 Commissioner’s Motion for Summary Judgment, ECF No. 11. 7 BACKGROUND 8 General Context 9 Plaintiff applied for SSI and DIB on April 2, 2019, with an alleged onset date
10 of October 17, 2017. Administrative Record (“AR”)2 15, 180–207. Plaintiff was 30 11 years old on the alleged disability onset date and asserted that he was unable to work 12 due to right leg issues, asthma, allergies, right hip pain, sleep apnea, and chronic
13 sinus headaches. AR 225. Plaintiff’s application was denied initially and upon 14 reconsideration, and Plaintiff requested a hearing. See AR 110–15, 122–23. 15 On April 21, 2021, Plaintiff appeared for a hearing held by Administrative 16 Law Judge (“ALJ”) Stewart Stallings in Spokane, Washington. AR 36–38. The
17 hearing was held by teleconference due to the extraordinary circumstances presented 18 by the novel coronavirus (COVID-19) pandemic. AR 38. Plaintiff was represented 19
20 2 The Administrative Record is filed at ECF No. 8. 21 1 by counsel Chad Hatfield. AR 38. The ALJ heard from Plaintiff and from 2 vocational expert (“VE”) Elizabeth Broten. AR 36–57. ALJ Stallings issued an
3 unfavorable decision on August 12, 2021, and the Appeals Council denied review. 4 AR 1−6, 25. 5 ALJ’s Decision
6 Applying the five-step evaluation process, ALJ Stallings found: 7 Step one: Plaintiff meets the insured status requirements of the Act through 8 June 30, 2022. AR 17. Plaintiff has not engaged in substantial gainful activity since 9 October 17, 2017, the alleged onset date. AR 17.
10 Step two: Plaintiff has the following severe impairments that are medically 11 determinable and significantly limit his ability to perform basic work activities: 12 morbid obesity, intellectual disability, obstructive sleep apnea, and asthma, pursuant
13 to 20 C.F.R. §§ 404.1520(c) and 416.920(c). AR 17. The ALJ further found that 14 low back pain, hypertension, and hip pain are not severe, based on the evidence in 15 the record. AR 18. However, the ALJ “considered all of the claimant’s medically 16 determinable impairments, including those that are not severe, when assessing the
17 claimant’s residual functional capacity.” AR 18. 18 Step three: The ALJ concluded that Plaintiff does not have an impairment, or 19 combination of impairments, that meets or medically equals the severity of one of
20 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 21 1 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). AR 18. In 2 reaching this conclusion, the ALJ considered whether Plaintiff’s obstructive sleep
3 apnea and asthma meet or medically equal the listings under 3.00 for the respiratory 4 system. AR 18. The ALJ found insufficient support for the respiratory system 5 listings, as “there was no significant testing of record and obstructive sleep apnea
6 was noted as stable with less fatigue with the use of the CPAP.” AR 18. The ALJ 7 also found that Plaintiff’s impairments do not meet listing 12.05 for intellectual 8 disorders because “the claimant may have tested in the extremely low range of 9 intellectual functioning with a full-scale IQ of 67 but he has no significant deficits in
10 adaptive functioning.” AR 18–19. The ALJ found that Plaintiff is moderately 11 limited in understanding, remembering, or applying information and in 12 concentrating, persisting, or maintaining pace. AR 19. The ALJ found Plaintiff
13 mildly limited in interacting with others and adapting or managing oneself. AR 19. 14 Residual Functional Capacity (“RFC”): The ALJ found that Plaintiff has 15 the RFC to perform: medium work as defined in 20 C.F.R. §§ 404.1567(c) and 16 416.967(c) except that he cannot climb ropes or scaffolds or operate moving or
17 dangerous machinery, but he could occasionally climb a ladder. In addition, he is 18 limited to simple routine repetitive work in a predictable work environment with no 19 production pace/quotas or conveyor belts and only occasional, simple workplace
20 changes. AR 20. 21 1 In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s “medically 2 determinable impairments could reasonably be expected to cause the alleged
3 symptoms; however, [Plaintiff’s] statements concerning the intensity, persistence 4 and limiting effects of these symptoms are not entirely consistent with the medical 5 evidence and other evidence in the record for the reasons explained in this decision.”
6 AR 22. 7 Step four: The ALJ found that Plaintiff has no past relevant work. AR 23. 8 Step five: The ALJ found that Plaintiff has at least a high school education 9 and was 30 years old, which is defined as a younger individual (age 18-49), on the
10 alleged disability onset date. AR 23. Transferability of job skills is not an issue 11 because Plaintiff has no past relevant work. AR 23. The ALJ found that given 12 Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in
13 significant numbers in the national economy that Plaintiff can perform. AR 23. 14 Specifically, the ALJ recounted that the VE identified the following representative 15 occupations that Plaintiff could perform with the RFC: auto detailer (medium, 16 unskilled work, with around 39,837 jobs nationally); dishwasher (medium, unskilled
17 work, with around 270,000 jobs nationally); and laboratory equipment cleaner 18 (medium, unskilled work with around 26,400 jobs nationally). AR 23–24. The ALJ 19 further recounted that the VE identified the following representative occupations that
20 Plaintiff could perform with an RFC modified to permit only light work with the 21 1 same limitations and restrictions set forth above: production assembler (light, 2 unskilled work, with approximately 59,400 jobs nationally, with an erosion to
3 29,733 for the sit-stand option); small products bench assembler (light, unskilled 4 work with approximately 76,682 jobs nationally); and collator operator (light, 5 unskilled work with approximately 33,745 jobs nationally). The ALJ concluded that
6 Plaintiff had not been disabled within the meaning of the Act at any time from April 7 2, 2019, through the date of the ALJ’s decision. AR 24. 8 LEGAL STANDARD 9 Standard of Review
10 Congress has provided a limited scope of judicial review of the 11 Commissioner’s decision. 42 U.S.C. § 405(g). A court may set aside the 12 Commissioner’s denial of benefits only if the ALJ’s determination was based on
13 legal error or not supported by substantial evidence. See Jones v. Heckler, 760 F.2d 14 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The [Commissioner’s] 15 determination that a claimant is not disabled will be upheld if the findings of fact are 16 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir.
17 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere 18 scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 19 1119 n.10 (9th Cir. 1975); McCallister v. Sullivan, 888 F.2d 599, 601–02 (9th Cir.
20 1989). Substantial evidence “means such evidence as a reasonable mind might 21 1 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 2 401 (1971) (citations omitted). “[S]uch inferences and conclusions as the
3 [Commissioner] may reasonably draw from the evidence” also will be upheld. Mark 4 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the 5 record, not just the evidence supporting the decisions of the Commissioner.
6 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). 7 A decision supported by substantial evidence still will be set aside if the 8 proper legal standards were not applied in weighing the evidence and making a 9 decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 433 (9th Cir.
10 1988). Thus, if there is substantial evidence to support the administrative findings, 11 or if there is conflicting evidence that will support a finding of either disability or 12 nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen,
13 812 F.2d 1226, 1229–30 (9th Cir. 1987). 14 Definition of Disability 15 The Social Security Act defines “disability” as the “inability to engage in any 16 substantial gainful activity by reason of any medically determinable physical or
17 mental impairment which can be expected to result in death or which has lasted or 18 can be expected to last for a continuous period of not less than 12 months.” 42 19 U.S.C. §§ 423(d)(1)(A). The Act also provides that a claimant shall be determined
20 to be under a disability only if his impairments are of such severity that the claimant 21 1 is not only unable to do his previous work, but cannot, considering the claimant’s 2 age, education, and work experiences, engage in any other substantial gainful work
3 which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A). Thus, the 4 definition of disability consists of both medical and vocational components. Edlund 5 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
6 Sequential Evaluation Process 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a claimant is disabled. 20 C.F.R. §§ 416.920, 404.1520. 9 Step one determines if he is engaged in substantial gainful activities. If the claimant
10 is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §§ 11 416.920(a)(4)(i), 404.1520(a)(4)(i). 12 If the claimant is not engaged in substantial gainful activities, the decision
13 maker proceeds to step two and determines whether the claimant has a medically 14 severe impairment or combination of impairments. 20 C.F.R. §§ 416.920(a)(4)(ii), 15 404.1520(a)(4)(ii). If the claimant does not have a severe impairment or 16 combination of impairments, the disability claim is denied.
17 If the impairment is severe, the evaluation proceeds to the third step, which 18 compares the claimant’s impairment with listed impairments acknowledged by the 19 Commissioner to be so severe as to preclude any gainful activity. 20 C.F.R. §§
20 416.920(a)(4)(iii), 404.1520(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If 21 1 the impairment meets or equals one of the listed impairments, the claimant is 2 conclusively presumed to be disabled.
3 If the impairment is not one conclusively presumed to be disabling, the 4 evaluation proceeds to the fourth step, which determines whether the impairment 5 prevents the claimant from performing work that he has performed in the past. If the
6 claimant can perform her previous work, the claimant is not disabled. 20 C.F.R. §§ 7 416.920(a)(4)(iv), 404.1520(a)(4)(iv). At this step, the claimant’s RFC assessment 8 is considered. 9 If the claimant cannot perform this work, the fifth and final step in the process
10 determines whether the claimant is able to perform other work in the national 11 economy considering his residual functional capacity and age, education, and past 12 work experience. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v); Bowen v.
13 Yuckert, 482 U.S. 137, 142 (1987). 14 The initial burden of proof rests upon the claimant to establish a prima facie 15 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 16 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden
17 is met once the claimant establishes that a physical or mental impairment prevents 18 him from engaging in his previous occupation. Meanel, 172 F.3d at 1113. The 19 burden then shifts, at step five, to the Commissioner to show that (1) the claimant
20 can perform other substantial gainful activity, and (2) a “significant number of jobs 21 1 exist in the national economy” which the claimant can perform. Kail v. Heckler, 722 2 F.2d 1496, 1498 (9th Cir. 1984).
3 ISSUES ON APPEAL 4 The parties’ motions raise the following issues regarding the ALJ’s decision: 5 1. Did the ALJ erroneously reject Plaintiff’s right hip impairment as groundless at step two? 6 2. Did the ALJ err in rejecting Plaintiff’s subjective complaints? 7 3. Did the ALJ err by rejecting lay witness testimony? 8 4. Did the ALJ err by failing to conduct an adequate step three evaluation and failing to find the claimant disabled? 9 5. Did the ALJ err in failing to conduct an adequate analysis at step five? 10 Step Two 11 Plaintiff argues that the ALJ mischaracterized the record in finding his right 12 hip impairment to be groundless at step two. ECF No. 10 at 8–9. Plaintiff asserts, 13 “While imaging of [Plaintiff’s] right hip may not show acute abnormalities, it does 14 demonstrate ‘a partially threaded screw transfixing [the] femoral neck and head,’ 15 resulting from a history of pinning for dislocation in 1999.” Id. at 9 (citing AR 330). 16 Plaintiff also cites to treatment records indicating that Plaintiff presented with right 17 hip pain at appointments in October 2017. Id. (citing AR 327–29). 18 The Commissioner responds that Plaintiff overlooks the purpose of step two 19 as “‘a threshold determination to screen out weak claims’” that is “‘not meant to 20 identify the impairments that should be taken into account when determining the 21 1 RFC.’” ECF No. 11 at 2 (quoting Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2 2017)). The Commissioner contends that although the ALJ found Plaintiff’s hip
3 pain to be not severe at step two, the ALJ found at least one other impairment to be 4 severe and proceeded to consider all of Plaintiff’s medically determinable 5 impairments, including hip pain, in assessing Plaintiff’s RFC. Id. at 3 (citing AR
6 17–18). 7 At step two, an ALJ may find impairments or combinations of impairments to 8 be non-severe “if the evidence establishes a slight abnormality that has no more than 9 a minimal effect on an individual’s ability to work.” Webb v. Barnhart, 433 F.3d
10 683, 686 (9th Cir. 2005); see also Social Security Ruling (“SSR”) 85-28, 1985 SSR 11 LEXIS 19 at *8, 1985 WL 56856, at *3. Omissions at step two are harmless error if 12 step two is decided in the claimant’s favor and the ALJ incorporates all of the
13 claimant’s limitations into the RFC. Burch v. Barnhart, 400 F.3d 676, 682–84 (9th 14 Cir. 2005). 15 In this matter, the ALJ found at step two that Plaintiff has several severe 16 impairments, but Plaintiff’s hip pain is not a severe impairment “as this term is used
17 for Social Security disability evaluation purposes.” AR 18. The ALJ reasoned that 18 imaging of Plaintiff’s hip “was unremarkable.” AR 18 (citing AR 313–36, 353–58, 19 380–90). Plaintiff argues that the ALJ mischaracterizes the records that he cites for
20 that proposition. ECF No. 12 at 2–3. Plaintiff relies on imaging from October 2017 21 1 showing “‘a partially threaded screw transfixing femoral neck and head [. . . ],’ 2 resulting from a history of pinning for dislocation in 1999.” Id. (citing AR 330).
3 However, Plaintiff does not indicate why an ALJ must interpret imaging that merely 4 confirms that Plaintiff underwent a medical procedure approximately eight years 5 before the x-ray was captured as remarkable. Indeed, Plaintiff’s treatment provider
6 noted that the x-ray “looked okay” and that it “reveal[ed] no bony changes except 7 for the hardware, which appear to be intact.” AR 327–28. 8 The ALJ then considered Plaintiff’s diagnosis of chronic hip pain in 9 formulating Plaintiff’s RFC. AR 22.
10 The Court cannot decipher any mischaracterization of the record in the ALJ’s 11 finding that Plaintiff’s hip pain is non-severe. Rather, the ALJ relied on substantial 12 evidence in making his step two finding regarding hip pain. See AR 313–36, 353–
13 58, 380–90. Therefore, the Court finds no error at step two. Moreover, even if the 14 ALJ had erred at step two, that error would be harmless given that the ALJ found 15 other severe impairments at step two and proceeded to consider Plaintiff’s hip pain 16 in determining Plaintiff’s RFC. See AR 22; Burch, 400 F.3d at 682–84.
17 The Court finds in favor of the Commissioner with respect to this issue and 18 denies Plaintiff’s Motion for Summary Judgment in part with respect to the same. 19 / / /
20 / / / 21 1 Subjective Symptom Testimony 2 Plaintiff argues that the ALJ failed to provide the requisite clear and
3 convincing reasons for making a negative credibility finding and instead “offered 4 little more than vague assertions that Plaintiff’s allegations are unsupported by the 5 objective medical evidence of record, contrary to law.” ECF No. 10 at 17 (citing
6 Robbins v. Social Sec. Admin., 466 F.3d 880 (9th Cir. 2006)). Plaintiff maintains 7 that it was error for the ALJ to reject Plaintiff’s testimony based on his work history 8 and daily activities, particularly where the ALJ also found that Plaintiff has no 9 relevant work. Id. (citing AR 23). Plaintiff argues that none of the “cited
10 ‘independent’ activities” is inconsistent with the inability to maintain continuous, 11 competitive full-time employment. Id. at 17–18 (citing Fair v. Bowen, 885 F.2d 12 597, 603 (9th Cir. 1989)). Plaintiff further asserts that the ALJ did not account for
13 the permanent nature of Plaintiff’s intellectual disability, that there is no treatment 14 that can alleviate his deficits in memory and cognition, and that Plaintiff needs to lie 15 down to due to right hip pain. Id. (citing AR 44–46, 61–62). Plaintiff argues that 16 the VE testified that accommodating these impairments would preclude competitive
17 employment. Id. (citing 58, 61–62). 18 The Commissioner responds that the ALJ’s reasoning in discounting 19 Plaintiff’s statements about the intensity, persistence, and limiting effects of his
20 alleged symptoms was sufficiently specific and supported by substantial evidence. 21 1 ECF No. 11 at 8. First, the record supports that Plaintiff’s self-reports conflicted 2 with the medical opinions in the record. Id. (citing Carmickle v. Comm’r, 553 F.3d
3 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient 4 basis for rejecting the claimant’s subjective testimony.”). The Commissioner argues 5 that every medical source opinion that addressed Plaintiff’s functioning found that
6 his impairments were not disabling, and Plaintiff could perform some level of work. 7 Id. at 8–9 (citing the opinions of Ruth Childs, M.D., Bethany Miller, D.O., and 8 Joyce Everhart, PhD.). The Commissioner further argues that the ALJ was 9 permitted to consider Plaintiff’s part-time work for many years and the fact that
10 Plaintiff “admitted” that he “had no mental problems doing the jobs” and ultimately 11 quit “because of pain in his hip, rather than because of any other difficulties, even 12 though he acknowledged that x-rays of his hip were normal.” Id. at 9 (citing AR 49–
13 50, 353). 14 In deciding whether to accept a claimant’s subjective pain or symptom 15 testimony, an ALJ must perform a two-step analysis. Smolen v. Chater, 80 F.3d 16 1273, 1281 (9th Cir. 1996). First, the ALJ must evaluate “whether the claimant has
17 presented objective medical evidence of an underlying impairment ‘which could 18 reasonably be expected to produce the pain or other symptoms alleged.’” 19 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v.
20 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the first test is met and there 21 1 is no evidence of malingering, “the ALJ can reject the claimant’s testimony about 2 the severity of [his] symptoms only by offering specific, clear and convincing
3 reasons for doing so.” Smolen, 80 F.3d at 1281. 4 There is no allegation of malingering in this case. Plaintiff testified that he 5 last worked in 2017 doing two part-time jobs that consisted of janitorial work at a
6 smoke shop and a hardware store. AR 41. The owner of the smoke shop was 7 encouraging to Plaintiff and taught Plaintiff how he wanted Plaintiff to do the tasks 8 around his store. AR 45. The smoke shop owner also reminded Plaintiff to do tasks 9 if Plaintiff forgot to do them. AR 45. Plaintiff worked at the smoke shop
10 approximately two hours each evening for approximately ten years. AR 44–45. 11 Sometime during this period, Plaintiff began working at the hardware store for 12 approximately two hours daily on staggered days with the smoke shop. AR 46–47.
13 Plaintiff testified that he lost both of his part-time jobs after it was “getting harder 14 with [his] hip.” AR 47. Plaintiff then attempted to work a full-time job doing 15 janitorial work at a casino, and his hip pain became worse. AR 48. Plaintiff 16 reported that he could not work as quickly as his supervisors wanted him to, and he
17 quit the job after approximately two months. AR 48–50. 18 At the time of the hearing, Plaintiff lived in the family house with his older 19 brother and sister, and his parents recently had moved to Alaska. AR 43–44.
20 Plaintiff’s sister was working. AR 44. 21 1 As noted above, the ALJ found that Plaintiff’s statements concerning the 2 intensity, persistence, and limiting effects of his alleged symptoms “are not entirely
3 consistent with the medical evidence and other evidence in the record[.]” AR 22. 4 The ALJ further found that Plaintiff’s testimony that he “worked two part-time jobs 5 in the past, with one job lasting 10 years, . . . although not at the substantial gainful
6 work level . . . demonstrates his ability to obtain and maintain employment.” AR 22. 7 The ALJ added that Plaintiff’s “examinations, physically and mentally, have also 8 routinely and repeatedly been unremarkable.” AR 22 (citing AR 313–36, 353–58, 9 359–74, 380–90, 391–400). The ALJ discussed, in particular, the evaluations of
10 Bethany Miller, DO in July 2019 and Joyce Everhart, PhD in May 2021 11 The ALJ’s reasoning that Plaintiff’s subjective symptom testimony is 12 undermined by unremarkable physical and mental examinations is supported by the
13 evidence cited by the ALJ. For instance, Plaintiff ‘s treatment record from 14 November 2018 indicates that Plaintiff reported being able to care for himself, and, 15 although Plaintiff was asked for a sleep study for sleep issues associated with 16 morbid obesity and asthma, Plaintiff denied excessive daytime sleepiness. AR 314–
17 17. Plaintiff also sought a replacement tube for his nebulizer machine due to his 18 asthma, which he reported he had experienced symptoms of since childhood, and 19 those symptoms were worsened by being around hay in the spring and summer. AR
20 315. Plaintiff reported that he “works on a farm feeding horses and uses his 21 1 albuterol inhaler approximately once/day after feeding them due to shortness of 2 breath.” AR 315.
3 Similarly, in a July 2019 examination report, Dr. Miller recorded that 4 Plaintiff’s right hip discomfort was provoked by “walking for longer than 3 miles 5 over the day or lifting greater than 50 pounds.” AR 353. Medium work does not
6 involve lifting greater than 50 pounds. See 20 C.F.R. § 416.967. Plaintiff’s 7 examination by Dr. Miller was unremarkable, including demonstrating a normal gait 8 and stride, with the ability to sit down and stand up without assistance. AR 355. Dr. 9 Miller opined that the objective evidence does not fully support Plaintiff’s
10 allegations regarding his hip pain and that the only postural or manipulative 11 limitation Plaintiff requires is a limit of lifting 40 pounds occasionally and 20 12 pounds frequently. AR 356–57. A physical examination by Plaintiff’s treatment
13 provider around the same time also revealed unremarkable physical and mental 14 findings, apart from Plaintiff’s morbid obesity. AR 362–63. Likewise, an 15 examination by a treating dermatologist in September 2019 recorded normal 16 findings apart from a minor skin condition for which the provider gave Plaintiff in-
17 office instruction about Plaintiff’s shaving practices and nothing more. AR 376–77. 18 Moreover, the record supports that Plaintiff can attend appointments on his own. 19 AR 377. The Court finds the materials cited by the ALJ to provide substantial
20 support for the ALJ’s reasoning. 21 1 Moreover, the Court notes that Plaintiff himself attributed his inability to 2 maintain competitive employment solely to his hip pain, and not to any mental or
3 other physical limitations. See AR 47–49. Plaintiff did not explain what activities in 4 particular his hip pain prevented him from doing. See AR 47–50. Plaintiff further 5 acknowledged that what is wrong with his hip is unclear, given the normal hip x-ray.
6 AR 49–50. At step five, the ALJ found that there are jobs available in the national 7 economy even in a hypothetical limiting Plaintiff to light work with an option of 8 sitting or standing at will. AR 24. The hypothetical considered by the VE plausibly 9 accommodates the vague limitations with respect to Plaintiff’s right hip that Plaintiff
10 described. AR 24. Therefore, the Court finds that even if there were an error in the 11 ALJ’s evaluation of Plaintiff’s testimony, it likely would be harmless. See Molina v. 12 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (holding that an error is harmless if it is
13 “inconsequential to the ultimate nondisability determination”) (internal quotation 14 omitted). 15 The Court finds no reversible error regarding the ALJ’s evaluation of 16 Plaintiff’s testimony, grants summary judgment to the Commissioner on this issue,
17 and denies summary judgment to Plaintiff on the same. 18 Lay Witness Testimony 19 Plaintiff posits that the ALJ did not provide adequate, germane reasons for
20 rejecting the lay witness statement of Plaintiff’s mother. ECF No. 10 at 14. 21 1 The Commissioner responds that, under the revised regulations applying to 2 claims filed after March 27, 2017, the ALJ was “not required to provide written
3 analysis of evidence from nonmedical sources, let alone provide germane reasons to 4 reject them.” ECF No. 11 at 11. The Commissioner continues that, “[e]ven though 5 he was not required to do so, the ALJ provided sufficient reasons for discounting
6 Plaintiff’s mother’s opinion by noting that her letter “suffered many of the same 7 infirmities as Plaintiff’s own self-reports.” Id. at 11–12 (citing AR 22). 8 The revised regulations that apply to disability applications filed on or after 9 March 27, 2017, provide that lay witness testimony fits within the category of
10 evidence from nonmedical sources, which the ALJ will “consider” in how a 11 claimant’s symptoms affect his activities of daily living and his ability to work. See 12 20 C.F.R. §§ 404.1545(a)(3), 404.1413(a)(4), 404.1529(a), 416.913(a)(4),
13 416.945(a)(3), and 416.929(a). However, an ALJ is “not required to articulate how 14 [he or she] considered evidence from nonmedical sources.” 20 C.F.R. §§ 15 404.1520c(d), 416.920c(d) (emphasis added). 16 Prior to the revisions to the relevant regulations, the United States Court of
17 Appeals for the Ninth Circuit required an ALJ to express germane reasons for 18 discounting lay witness testimony. Turner v. Comm’r, 613 F.3d 1217, 1224 (9th 19 Cir. 2010). As other courts have noted, the Ninth Circuit has yet to address whether
20 the revised regulations modify the requirement for germane reasons to discount lay 21 1 witness testimony. See Johnson v. Kijakazi, 2022 U.S. App. LEXIS 24769, at *4–5 2 (Sept. 1, 2022) (declining to address whether an ALJ must discuss the treatment of
3 lay witness statements in his or her decision after the 2017 revised regulations); 4 Sharon v. Kijakazi, 2023 U.S. Dist. LEXIS 10129 (D. Id. Jan. 18, 2023); Robert U. 5 v. Kijakazi, 2022 U.S. Dist. LEXIS 20038, 2022 WL 326166, at *7 (D. Or. Feb. 3,
6 2022). The Court notes, however, that the Ninth Circuit has expressed in dicta in an 7 unpublished decision that while “it is an open question whether ALJs are still 8 required to consider lay witness evidence under the revised regulations, . . . it is clear 9 that they are no longer required to articulate it in their decisions.” Fryer v. Kijakazi,
10 No. 21-36004, 2022 U.S. App. LEXIS 35651, at *7 n.1 (9th Cir. Dec. 27, 2022). 11 Furthermore, the Ninth Circuit has continued to hold after the 2017 revision of 12 the regulations that any error by an ALJ in failing to provide reasons for rejecting a
13 lay witness is harmless if the ALJ’s reasons for discounting the plaintiff’s testimony 14 were sufficient and the lay testimony is substantially similar to the plaintiff’s 15 testimony. See Valentine v. Comm’r, 574 F.3d 685, 694 (9th Cir. 2009) (holding 16 that the same germane reasons that applied to the claimant’s testimony applied to his
17 wife’s, which was similar to his own); Johnson, 2022 U.S. App. LEXIS 24769, at *5 18 (finding the ALJ’s failure to address lay witness testimony harmless where the lay 19 witness statements were “largely duplicative” of plaintiff’s testimony).
20 21 1 Plaintiff’s mother wrote a letter dated April 13, 2021, expressing that Plaintiff 2 suffers from “life-long severe learning impairments” since he was born with the
3 umbilical cord wrapped around his neck. AR 303. Plaintiff’s mother recounts that 4 Plaintiff was placed in special education throughout school and, rather than a 5 diploma, received a certificate that he attended school. AR 303. She states, “I
6 believe that he never achieved more than a fourth-grade level for comprehension.” 7 AR 303. She writes that Plaintiff got his driver’s license at age 25 and can use it to 8 run “short errands, but he has to use GPS on his phone for every place he goes.” AR 9 303. She reports that Plaintiff cannot make his own shopping lists, but can follow
10 the lists that she makes, and she worries that he is “very prone to be taken advantage 11 of by others.” AR 303. She reports that Plaintiff has always lived with family and 12 “is not able to live on his own” and requires “lots of reminders” and “frequent
13 encouragement.” AR 303. She asserts that Plaintiff cannot make his own medical 14 appointments and “does not understand why he would go to the doctor.” AR 304. 15 The ALJ noted Plaintiff’s mother’s letter but recited that ALJs “are not 16 required to articulate how we considered evidence from nonmedical sources using
17 the requirements in paragraphs (a)-(c) in this section, such as the lay witness 18 statement of the claimant’s mother.” AR 21. The ALJ continued, “Nevertheless, 19 while the claimant did test in the extremely low range of intellectual functioning
20 21 1 with a full-scale IQ of 67, he is independent for all his activities of daily living and 2 has been able to obtain and maintain employment in the past.” AR 21.
3 The Court does not find that Plaintiff’s mother duplicates Plaintiff’s own 4 statements because Plaintiff’s mother alleges more extensive limitations than 5 Plaintiff. Indeed, Plaintiff’s mother’s allegations are outliers both with respect to
6 Plaintiff’s testimony and with respect to the medical source opinions and medical 7 records. See AR 330, 345, 353–58, 380–83, 376–77, 391–96. Those records 8 support that Plaintiff is more independent in his activities of daily living than 9 Plaintiff’s mother alleges and support the ALJ’s finding that Plaintiff was able to
10 maintain part-time employment over a lengthy period of approximately ten years. 11 See AR 41–45, 315–16, 392. While it is undecided whether an ALJ within the Ninth 12 Circuit must articulate how he assessed a lay witness’s testimony, Plaintiff offers no
13 authority supporting that Plaintiff’s mother’s opinion was entitled to controlling 14 weight. The ALJ’s opinion indicates that he considered the lay witness statement 15 and further provides two reasons for rejecting it. Those reasons, Plaintiff’s activities 16 of daily living and his ability to maintain employment, are germane to the limitations
17 to which Plaintiff’s mother opines. 18 The Court finds no reversible error based on the ALJ’s treatment of the lay 19 statements of Plaintiff’s mother, grants summary judgment to the Commissioner on
20 this ground, and denies summary judgment to Plaintiff on the same. 21 1 Step Three 2 Plaintiff maintains that the ALJ failed to conduct an adequate step three
3 analysis and should have found that Plaintiff’s intellectual impairments meet or 4 equal listing 12.05. ECF No. 10 at 10. Plaintiff asserts that the ALJ should have 5 found that he meets the listing based on the following testing results: a full-scale IQ
6 score of 67, verbal comprehension score of 70 (second percentile), working memory 7 score of 66 (first percentile), auditory memory score of 64 (first percentile), visual 8 memory score of 55 (.1 percentile), visual working memory score of 70 (second 9 percentile), immediate memory score of 53 (.1 percentile), and delayed memory
10 score of 60 (.4 percentile). Id. at 11 (citing AR 394–95). Plaintiff maintains that 11 these scores are “two to three standard deviations (or more) below the mean” and 12 correspond to marked to extreme limitations in (1) the ability to understand,
13 remember, or apply information; and (2) the ability to concentrate, persist, or 14 maintain pace. See 20 C.F.R. § 416.926a(e)(2)(iii). Plaintiff further asserts that the 15 record supports that he meets the third prong of listing 12.05 by showing that his low 16 intellectual functioning began before age 22 with his participation in special
17 education classes, an individualized education plan in childhood, leaving school 18 without earning a high school diploma, and Plaintiff’s low-skill work history. Id. 19 (citing AR 42, 303–05, 392). Plaintiff stresses that the ALJ found that Plaintiff did
20 not have any past relevant work and that Plaintiff testified that: he needed frequent 21 1 reminders during his two-hour shifts; he lost both part-time jobs; and he could not 2 maintain his most recent job with eight-hour shifts for more than three months due to
3 limitations in pace. ECF No. 10 at 12 (citing AR 44–46, 47–50). Plaintiff adds that 4 the ALJ did not explain how Plaintiff’s daily activities are inconsistent with marked 5 and extreme limitations and erred in evaluating the lay opinion of Plaintiff’s mother.
6 Id. at 13 (citing Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014); AR 303– 7 04). 8 The Commissioner responds that to qualify as per se disabled under a listing, a 9 claimant’s impairment must meet “‘a higher level of severity than the statutory
10 standard’” for disability than under the Act. ECF No. 11 at 3. The Commissioner 11 argues that substantial evidence supports the ALJ’s determination that Plaintiff’s 12 intellectual impairment is not of sufficient severity to meet or equal Listing 12.05.
13 Id. at 4. The Commissioner cites to Plaintiff’s statements and the report of 14 examining psychologist Dr. Everhart for substantial evidence of Plaintiff’s merely 15 moderate limitation in understanding, remembering, and applying information. AR 16 231, 236, 395. The Commissioner continues that Plaintiff reported that he “‘get[s]
17 along with everyone’” and presented as pleasant and cooperative for his evaluation, 18 so the ALJ was justified in determining that Plaintiff has only a mild limitation in 19 interacting with others. Id. (citing AR 19, 236–37, 395). Likewise, the
20 Commissioner maintains, Plaintiff’s own statements and the psychological 21 1 evaluation support that Plaintiff’s impairment in concentrating, persisting, and 2 maintaining pace is no more than moderate. Id. at 6 (citing AR 395–96). Lastly, the
3 Commissioner maintains that the ALJ relied on substantial evidence regarding 4 Plaintiff’s daily activities and work history, and that Plaintiff left work due to 5 physical problems, not mental difficulties, in finding that Plaintiff has only a mild
6 limitation in adapting or managing himself. Id. (citing AR 19–20, 232–35, 392). 7 The ALJ considered whether Plaintiff meets or equals either paragraph A or B 8 of listing 12.05, which addresses intellectual abilities, and requires, among other 9 elements, a showing of “significantly subaverage general intellectual functioning
10 with deficits in adaptive functioning” and an onset of the impairment before age 22. 11 See AR 18–19; 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05. With respect to both, the 12 ALJ found that Plaintiff had not shown significant deficits in adaptive functioning.
13 AR 18–19; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (providing 14 that the claimant bears the burden of proof at step three). As the Commissioner 15 notes, the ALJ relied on Dr. Everhart’s findings that Plaintiff: retains the ability to 16 listen, understand, remember, and follow simple instructions; did not present with
17 any difficulty interacting with her; demonstrated good pace and persistence and was 18 not easily distracted during her evaluation of Plaintiff; and is able to complete his 19 daily living activities independently. AR 19, 395–96. The ALJ also relied on
20 Plaintiff’s testimony and reports that he shops and manages his own finances 21 1 independently; prepares his own meals; completes housework; reads and performs 2 simple math without issue; and gets along with people easily. AR 42–43; 232–36.
3 Plaintiff also testified that he maintained the same part-time job for approximately 4 ten years. AR 44–45. 5 The ALJ’s interpretation of the record rests on substantial evidence. See
6 Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). Plaintiff’s arguments 7 dispute instead whether the ALJ properly weighed the evidence of record, and it is 8 not this Court’s role to reweigh the evidence. See Ahearn v. Saul, 988 F.3d 1111, 9 1115 (9th Cir. 2021). Accordingly, the Court finds no error at step three in the
10 ALJ’s decision, grants summary judgment to the Commissioner on this issue, and 11 denies summary judgment to Plaintiff on the same. 12 Step Five
13 Plaintiff contends that the ALJ erred at step five because the VE testified in 14 response to an allegedly incomplete hypothetical. ECF No. 10 at 19. The ALJ’s 15 hypothetical must be based on medical assumptions supported by substantial 16 evidence in the record that reflect all of a claimant’s limitations. Osenbrock v. Apfel,
17 240 F.3d 1157, 1165 (9th Cir. 2001). The ALJ is not bound to accept as true the 18 restrictions presented in a hypothetical question propounded by a claimant's counsel. 19 Osenbrock, 240 F.3d at 1164. The ALJ may accept or reject these restrictions if they
20 21 1 are supported by substantial evidence, even when there is conflicting medical 2 evidence. Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989).
3 Plaintiff's argument assumes that the ALJ erred in Plaintiff’s subjective 4 symptom testimony and Plaintiff’s mother’s lay statement. As discussed above, the 5 ALJ’s assessment of this evidence was not erroneous. Therefore, the RFC and
6 hypothetical contained the limitations that the ALJ found credible and supported by 7 substantial evidence in the record. The ALJ’s reliance on testimony that the VE 8 gave in response to the hypothetical was proper. See Bayliss v. Barnhart, 427 F.3d 9 1211, 1217–18 (9th Cir. 2005). The Court denies Plaintiff's Motion for Summary
10 Judgment, and grants summary judgment to the Commissioner, on this final ground. 11 / / / 12 / / /
13 / / / 14 / / / 15 / / / 16 / / /
17 / / / 18 / / / 19 / / /
20 / / / 21 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, this Court concludes that
3 the ALJ’s decision is supported by substantial evidence and free of harmful legal 4 error. Accordingly, IT IS HEREBY ORDERED that: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is DENIED.
6 2. Defendant’s Motion for Summary Judgment, ECF No. 11, is 7 GRANTED. 8 3. Judgment shall be entered for Defendant. 9 IT IS SO ORDERED. The District Court Clerk is directed to enter this
10 Order, enter judgment as directed, provide copies to counsel, and close the file in 11 this case. 12 DATED March 27, 2023.
13 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON 14 Senior United States District Judge 15 16 17 18 19
20 21