Sara Muncy v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: December 23, 2022
• Docket: 5:21-cv-01554
• Status: Unknown

Opinion

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SARA M.,1 Case No. 5:21-cv-01554-JC 11 Plaintiff, 12 MEMORANDUM OPINION v. 13 [DOCKET NOS. 16, 19] 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security 15 Administration, 16 Defendant. 17 I. SUMMARY 18 On September 14, 2021, plaintiff filed a Complaint seeking review of the 19 Commissioner of Social Security’s denial of her application for benefits. The 20 parties have consented to proceed before the undersigned United States Magistrate 21 Judge. 22 This matter is before the Court on the parties’ cross-motions for summary 23 judgment (respectively, “Plaintiff’s Motion” and “Defendant’s Motion”). The 24 Court has taken the parties’ arguments under submission without oral argument. 25 See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order ¶ 5. 26 27 1Plaintiff’s name is partially redacted to protect plaintiff’s privacy in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on 28 Court Administration and Case Management of the Judicial Conference of the United States. 1 Case 5:21-cv-01554-JC Document 21 Filed 12/23/22 Page 2 of 18 Page ID #:885

1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 (“ALJ”) are supported by substantial evidence and are free from material error. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On September 16, 2019, plaintiff protectively filed an application for 7 Disability Insurance Benefits, alleging disability beginning December 21, 2016, 8 due to major depression disorder, bipolar disorder, general anxiety/stress disorder, 9 panic attacks, paranoid personality disorder, and borderline personality disorder. 10 (See Administrative Record (“AR”) 167-68, 200). 11 An ALJ subsequently examined the medical record and, on March 12, 2021, 12 heard testimony from a vocational expert and plaintiff (who was represented by 13 counsel). (AR 31-64). On March 31, 2021, the ALJ determined that plaintiff was 14 not disabled from December 21, 2016 to the date of the decision. (AR 15-25). 15 Specifically, the ALJ found: (1) plaintiff has the following severe impairments: 16 bipolar disorder and general anxiety disorder (AR 17); (2) plaintiff’s impairments, 17 considered individually or in combination, do not meet or medically equal a listed 18 impairment (AR 18); (3) plaintiff retains the residual functional capacity (or 19 “RFC”)2 to perform a full range of work at all exertional levels with the following 20 non-exertional limitations: receiving, comprehending and executing only simple, 21 routine tasks; having only occasional contact with the public; and dealing with 22 only occasional changes in the work setting (AR 20); (4) plaintiff is unable to 23 perform any past relevant work (AR 24); (5) there are jobs that exist in significant 24 numbers in the national economy that plaintiff could perform, specifically 25 sweeper/cleaner, linen room attendant, and checker I (AR 24-25); and 26 27 2Residual functional capacity is what a claimant can still do despite existing exertional 28 and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 2 Case 5:21-cv-01554-JC Document 21 Filed 12/23/22 Page 3 of 18 Page ID #:886

1 (6) plaintiff’s statements regarding the intensity, persistence, and limiting effects of 2 subjective symptoms were inconsistent with the medical evidence and other 3 evidence in the record (AR 20). 4 On August 23, 2021, the Appeals Council denied plaintiff’s application for 5 review of the ALJ’s decision. (AR 1-3). 6 III. APPLICABLE LEGAL STANDARDS 7 A. Administrative Evaluation of Disability Claims 8 To qualify for disability benefits, a claimant must show that she is unable “to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than 12 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42 13 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded by 14 regulation on other grounds; 20 C.F.R. §§ 404.1505(a), 416.905(a). To be 15 considered disabled, a claimant must have an impairment of such severity that she 16 is incapable of performing work the claimant previously performed (“past relevant 17 work”) as well as any other “work which exists in the national economy.” Tackett 18 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)). 19 To assess whether a claimant is disabled, an ALJ is required to use the five- 20 step sequential evaluation process set forth in Social Security regulations. See 21 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) 22 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520, 23 416.920). The claimant has the burden of proof at steps one through four – i.e., 24 determination of whether the claimant was engaging in substantial gainful activity 25 (step 1), has a sufficiently severe impairment (step 2), has an impairment or 26 combination of impairments that meets or medically equals one of the conditions 27 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and 28 retains the residual functional capacity to perform past relevant work (step 4). 3 Case 5:21-cv-01554-JC Document 21 Filed 12/23/22 Page 4of18 Page ID #:887

1 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The 2 || Commissioner has the burden of proof at step five — i.e., establishing that the 3 || clarmant could perform other work in the national economy. Id. 4 B. Federal Court Review of Social Security Disability Decisions 5 A federal court may set aside a denial of benefits only when the 6 || Commissioner’s “final decision” was “based on legal error or not supported by 7 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 8 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard 9 || of review in disability cases is “highly deferential.” Rounds v. Comm’r of Soc. 10 || Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks 11 || omitted). Thus, an ALJ’s decision must be upheld if the evidence could reasonably 12 || support either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75 13 || (citations omitted). Even when an ALJ’s decision contains error, it must be 14 || affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. Admin., 15 | 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to 16 | the ultimate nondisability determination; or (2) ALJ’s path may reasonably be 17 || discerned despite the error) (citation and quotation marks omitted). 18 Substantial evidence is “such relevant evidence as a reasonable mind might 19 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining 20 || “substantial evidence” as “more than a mere scintilla, but less than a 21 || preponderance’) (citation and quotation marks omitted). When determining 22 || whether substantial evidence supports an ALJ’s finding, a court “must consider the 23 || entire record as a whole, weighing both the evidence that supports and the evidence 24 || that detracts from the Commissioner’s conclusion[.]|’ Garrison v. Colvin, 759 F.3d 25 || 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). 26 Federal courts review only the reasoning the ALJ provided, and may not 27 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 28 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need

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1 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 2 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 3 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099). 4 A reviewing court may not conclude that an error was harmless based on 5 independent findings gleaned from the administrative record. Brown-Hunter, 806 6 F.3d at 492 (citations omitted). When a reviewing court cannot confidently 7 conclude that an error was harmless, a remand for additional investigation or 8 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 9 (9th Cir. 2015) (citations omitted). 10 IV. DISCUSSION 11 Plaintiff claims that the ALJ (1) failed to provide specific, clear and 12 convincing reasons for discounting plaintiff’s allegations of mental dysfunction; 13 (2) failed to provide legally sufficient reasons for discounting the medical source 14 opinions of plaintiff’s treating therapist, Carl Wilson, D.B.H., and the consultative 15 psychological examiner, Mehrnoosh Rezapour, Psy.D.;3 and (3) failed to discuss or 16 provide any rationale for discounting the third-party statements of plaintiff’s 17 partner, Anthony Hurtado. (See Plaintiff’s Motion at 1-15). For the reasons stated 18 below, the Court concludes that a reversal or remand is not warranted. 19 A. The ALJ Did Not Err in Assessing Plaintiff’s Subjective 20 Statements 21 1. Applicable Law 22 When determining disability, an ALJ is required to consider a claimant’s 23 impairment-related pain and other subjective symptoms at each step of the 24 sequential evaluation process. 20 C.F.R. § 404.1529(a), (d). Accordingly, when a 25 claimant presents “objective medical evidence of an underlying impairment which 26 27 3Plaintiff presents this as two separate issues, one for each of the two medical sources 28 (Wilson and Rezapour), but they are organized here in one overall issue. 5 Case 5:21-cv-01554-JC Document 21 Filed 12/23/22 Page6of18 Page ID #:889

1 || might reasonably produce the pain or other symptoms [the claimant] alleged,” the 2 || ALJ is required to determine the extent to which the claimant’s statements 3 || regarding the intensity, persistence, and limiting effects of his or her subjective 4 || symptoms (“subjective statements” or “subjective complaints”) are consistent with 5 || the record evidence as a whole and, consequently, whether any of the individual’s 6 || symptom-related functional limitations and restrictions are likely to reduce the 7 || clatmant’s capacity to perform work-related activities. 20 C.F.R. § 404.1529(a), 8 || (c)(4); Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *4-10.7, When 9 || an individual’s subjective statements are inconsistent with other evidence in the 10 || record, an ALJ may give less weight to such statements and, in turn, find that the 11 || individual’s symptoms are less likely to reduce the claimant’s capacity to perform 12 || work-related activities. See SSR 16-3p, 2017 WL 5180304, at *8. In such cases, 13 || when there is no affirmative finding of malingering, an ALJ may “reject” or give 14 || less weight to the individual’s subjective statements “only by providing specific, 15 || clear, and convincing reasons for doing so.” Brown-Hunter, 806 F.3d at 488-89. 16 || This requirement is very difficult to satisfy. See Trevizo, 871 F.3d at 678 (“The 17 || clear and convincing standard is the most demanding required in Social Security 18 || cases.’’) (citation and quotation marks omitted). 19 An ALJ’s decision “must contain specific reasons” supported by substantial 20 || evidence in the record for giving less weight to a claimant’s statements. SSR 16- 21 || 3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective 22 || statement being rejected and the particular evidence in the record which 23 |} SMa 74 “Social Security Rulings reflect the Social Security Administration’s (“SSA”) official interpretation of pertinent statutes, regulations, and policies. 20 C.F.R. § 402.35(b)(1). 25 || Although they “do not carry the ‘force of law,’” Social Security Rulings “are binding on all %6 components of the.. : Administration[,]” and are entitled to deference if they are “consistent with the Social Security Act and regulations.” 20 C.F.R. § 402.35(b)(1); Bray v. Comm’r of 27 || Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009) (citations and quotation marks omitted); see also Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984) (discussing weight and function of 28 || Social Security rulings).

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1 || purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation 2 || omitted). Unless there is affirmative evidence of malingering, the Commissioner’s 3 || reasons for rejecting a claimant’s testimony must be “clear and convincing.” 4 || Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotation marks 5 || omitted), as amended (Apr. 9, 1996). “General findings are insufficient[.]” 6 || Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted). 7 If an ALJ’s evaluation of a claimant’s statements is reasonable and is 8 || supported by substantial evidence, it is not the court’s role to second-guess it. See 9 || Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). When 10 || an ALJ fails properly to discuss a claimant’s subjective complaints, however, the 11 || error may not be considered harmless “unless [the Court] can confidently conclude 12 || that no reasonable ALJ, when fully crediting the testimony, could have reached a 13 || different disability determination.” Stout, 454 F.3d at 1056; see also Brown- 14 | Hunter, 806 F.3d at 492 (ALJ’s erroneous failure to specify reasons for rejecting 15 || claimant testimony “will usually not be harmless’’). 16 2. Plaintiff's Statements 17 As noted above, plaintiff alleged that she was unable to work due to mental 18 | impairments, including major depressive disorder, bipolar disorder, generalized 19 || anxiety and stress disorder with panic attacks, and paranoid personality disorder 20 || (AR 200). Plaintiff provided statements about her impairments on a function 21 || report dated November 9, 2019 (AR 215-22), and at the hearing on March 12, 2021 22 || (AR 40-54), alleging the following: 23 Plaintiff's mental health conditions make it very difficult to concentrate, 24 || focus, and feel calm. (AR 215). She becomes extremely anxious and is easily 25 || confused and distracted, with difficulty remembering basic thoughts and directions. 26 || (AR 220). She also has difficulty talking and getting along with others because she 27 || feels paranoid and judged most of the time. (AR 215, 220). Her stress is 28 || overwhelming and causes her to panic, and her anxiety makes her “shaky.” (AR

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1 215). On some days, she feels depressed, does not want to be around anyone, even 2 family, and requires bed rest all day and meals prepared for her. (AR 45, 216). On 3 other days, she feels great and can shower, groom, attend scheduled appointments, 4 visit with family members, perform housework, and try to do yoga and meditate. 5 (AR 45, 216). She also performs household cleaning, laundry, and occasional yard 6 work. (AR 217). She goes out daily, but does not go out alone due to anxiety, 7 paranoia, confusion, and panic attacks. (AR 218). She shops in stores a few times 8 a month, but as quickly as possible because of her anxiety and paranoia. (AR 218). 9 While shopping, she sometimes begins crying and hyperventilating from worry, 10 and she “barely make[s] it out” of the store. (AR 49). At such times, her boyfriend 11 needs to hold her hand and make sure she is okay. (AR 49). Plaintiff generally 12 feels comfortable with family and talks to them almost daily, but she still feels that 13 they are judging her. (AR 50, 219). She does not handle stress or changes in 14 routine well. (AR 221). She can only pay attention for a very short amount of 15 time, and has difficulty following spoken instructions, but gets along very well 16 with authority figures. (AR 50, 220-21). 17 3. Analysis 18 The ALJ found that plaintiff’s medically determinable impairments could 19 reasonably be expected to cause the alleged symptoms, but plaintiff’s statements 20 about the intensity, persistence, and limiting effects of the symptoms were not 21 entirely consistent with the medical evidence and other evidence in the record. 22 (AR 20). The ALJ’s stated reasons for discounting plaintiff’s subjective 23 complaints are specific, clear and convincing. 24 First, the ALJ found that plaintiff’s allegations were inconsistent with the 25 objective medical evidence. (AR 20-22). “When objective medical evidence in 26 the record is inconsistent with the claimant’s subjective testimony, the ALJ may 27 indeed weigh it as undercutting such testimony.” Smartt v. Kijakazi, 53 F.4th 489, 28 498 (9th Cir. 2022) (emphasis original); see also Burch, 400 F.3d at 681 8 Case 5:21-cv-01554-JC Document 21 Filed 12/23/22 Page9of18 Page ID #:892

1 || (‘Although lack of medical evidence cannot form the sole basis for discounting 2 || pain testimony, it is a factor that the ALJ can consider ... .”);° Rollins v. 3 || Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain testimony 4 || cannot be rejected on the sole ground that it is not fully corroborated by objective 5 || medical evidence, the medical evidence is still a relevant factor in determining the 6 || severity of the claimant’s pain and its disabling effects.”); SSR 16-3p, 2016 WL 7 || 1119029, at *5 (“objective medical evidence is a useful indicator to help make 8 || reasonable conclusions about the intensity and persistence of symptoms, including 9 || the effects those symptoms may have on the ability to perform work-related 10 || activities”); 20 C.F.R. § 404.1529(c)(2) (“Objective medical evidence. . . 1s a 11 || useful indicator to assist us in making reasonable conclusions about the intensity 12 || and persistence of your symptoms and the effect those symptoms, such as pain, 13 || may have on your ability to work.”). 14 As support, the ALJ noted that while mental status examinations from 15 | plaintiffs therapist, Dr. Wilson, occasionally reflected poor eye contact with 16 || anxious mood, circumstantial speech, and self-deprecating thought content, Dr. 17 || Wilson’s findings otherwise were “largely unremarkable” and consistently noted 18 || plaintiff to be oriented with appropriate affect, appropriate dress, appropriate 19 || speech, appropriate thought content and process, good insight, good judgment, 20 || normal psychomotor activity, good immediate/recent/past memory, and with no 21 2200 73 °The Ninth Circuit recently clarified Burch as follows: 74 [W]hat Burch requires is that an ALJ cannot insist on clear medical evidence to support each part of a claimant’s subjective pain testimony when there is no 25 objective testimony evincing otherwise. That is, an ALJ cannot effectively render %6 a claimant's subj ective symptom testimony superfluous by demanding positive objective medical evidence “fully corroborat[ing]” every allegation within the 27 subjective testimony. That — and only that — is what Burch forbids. 28 Smartt, 53 F.4th at 498 (quoting Burch, 400 F.3d at 681) (other citation omitted).

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1 || evidence of cognitive deficits. (AR 21; see, e.g., AR 298, 411-12, 422, 425-26, 2 || 436, 439-440, 450, 462-63, 467-68, 474-75, 486-87, 493-94, 511-12, 541-42). The 3 || ALJ remarked that plaintiff's condition was noted to be generally improving, and 4 | plaintiff consistently denied experiencing suicidal ideations or hallucinations. (AR 5 | 21; see, e.g., AR 416-19, 422, 436, 450, 466, 471, 478, 490, 497, 552). The ALJ 6 || cited similar findings from other providers in the record. (AR 21; see AR 298, 7 | 329, 331, 333, 335, 337, 340-41, 343, 791-96). The ALJ also noted that the 8 || consultative psychologist, Dr. Rezapour, observed that plaintiff appeared distressed 9 || and described her mood as depressed, but that plaintiff was engaged and 10 || cooperative during the evaluation. (AR 21; see AR 394, 396). Dr. Rezapour also 11 || observed that plaintiff maintained good eye contact and was alert and oriented with 12 || normal speech, normal thought processes, normal thought content, normal insight 13 || and judgment, and normal abstract thinking skills. (AR 21; see AR 396). 14 Second, the ALJ found that plaintiff's symptoms improved with therapy and 15 | medication compliance. (AR 22). This is a clear and convincing reason for 16 || discounting the severity of plaintiff's alleged limitations. See Wellington v. 17 || Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (‘Symptoms may wax and wane 18 || during the progression of a mental disorder. Those symptoms, however, may also 19 || subside during treatment. . . . Such evidence of medical treatment successfully 20 || relieving symptoms can undermine a claim of disability.”) (citations omitted); 21 || Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 22 || (‘Impairments that can be controlled effectively with medication are not 23 | disabling ....”); Bailey v. Colvin, 659 F. App’x 413, 415 (9th Cir. 2016) 24 || (evidence that “impairments had been alleviated by effective medical treatment,” to 25 || the extent inconsistent with “alleged total disability[,|” specific, clear, and 26 || convincing reason for discounting subjective complaints) (citing Warre, 439 F.3d 27 || at 1006). Here, as the ALJ noted, plaintiff had undergone no psychiatric 28 || hospitalizations or emergent care since 2016, during a period when she had 10

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1 || stopped taking her medication and was hospitalized for a suicide attempt and noted 2 || to be unable to care for herself. (AR 20-22; see AR 395, 410). After that, Dr. 3 || Wilson “promptly re-medicated her” and “noted [plaintiff's] self-care and coping 4 || strategies had significantly improved while she was under his care.” (AR 21; see 5 || AR 410). The ALJ remarked that plaintiff also “reported utilizing coping 6 || strategies such as journaling, meditating, taking walks, engaging in self-care 7 || practices, and spending time with family.” (AR 21; see AR 412, 468). 8 In addition, the ALJ found that plaintiff was able to engage in daily activities 9 || “that are not limited to the extent one would expect given her allegations of 10 || disabling symptoms.” (AR 22). For example, in contrast to plaintiffs alleged 11 || difficulty focusing, plaintiff was able to paint, meditate, do yoga, and drive. (AR 12 || 22; see AR 40-41, 47, 396, 413). Despite alleging that she had difficulty being 13 || around crowds due to anxiousness and paranoia, plaintiff reported she got along 14 | well with authority figures, could shop in stores, attended weekly appointments, 15 | and spoke with her family on a daily basis. (AR 22; see AR 218-21). The ALJ 16 || acknowledged that “the scope and extent of these regular activities may change 17 || from day to day,” but nonetheless found that plaintiff's “ability to participate in 18 || such activities tends to suggest she is far more capable than she alleges and 19 | undermines the reliability of her allegations of disabling functional limitations.” 20 || (AR 22). This finding was reasonable. See Burrell v. Colvin, 775 F.3d 1133, 1137 21 || (9th Cir. 2014) (inconsistencies between alleged limitations and claimant’s 22 || reported activities valid reason for giving less weight to claimant’s subjective 23 || complaints) (citation omitted); Molina, 674 F.3d at 1113 (“Even where [a 24 || claimant’s] activities suggest some difficulty functioning, they may be grounds for 25 || [giving less weight to] the claimant’s testimony to the extent that they contradict 26 || claims of a totally debilitating impairment.”) (citations omitted); Valentine v. 27 || Commissioner, 574 F.3d 685, 693 (9th Cir. 2009) (claimant’s admitted activities 28 || did not suggest that claimant could work, but did suggest that claimant was 11

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1 exaggerating the severity of claimant’s limitations); see also SSR 16-3p, 2016 WL 2 1119029, at *7 (ALJ may determine that claimant’s symptoms “are less likely to 3 reduce his or her capacities to perform work-related activities” where claimant’s 4 subjective complaints are inconsistent with evidence of claimant’s daily activities) 5 (citing 20 C.F.R. § 404.1529(c)(3)). 6 Plaintiff fails to identify any significant error in the ALJ’s consideration of 7 the record on this issue. Instead, she contends that her activities and the normal 8 findings in the record are consistent with the waxing-and-waning nature of her 9 symptoms and do not reflect overall improvement or a functional ability consistent 10 with full-time gainful activity. (Plaintiff’s Motion at 5-7). However, the ALJ did 11 not dispute that plaintiff’s symptoms varied and some limitations persisted. 12 Rather, the ALJ reasonably determined that plaintiff’s examinations and other 13 evidence were inconsistent with the extent of the limitations alleged. That finding 14 is supported by substantial evidence in the record. Although the medical record 15 undoubtedly contains some abnormal findings, the Court must defer to the ALJ’s 16 reasonable interpretation of the record. See Brown-Hunter, 806 F.3d at 492 (“[W]e 17 leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and 18 resolve ambiguities in the record.”) (quoting Treichler, 775 F.3d at 1098); Lewis v. 19 Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (“[I]f evidence is susceptible of more 20 than one rational interpretation, the decision of the ALJ must be upheld”). 21 Accordingly, the ALJ provided specific, clear, and convincing reasons to 22 discount plaintiff’s subjective statements. A remand or reversal on the basis of the 23 ALJ’s consideration of plaintiff’s subjective statements and testimony is not 24 warranted. 25 B. The ALJ Did Not Err in Assessing the Medical Opinions 26 Plaintiff claims that the ALJ failed to provide legally sufficient reasons to 27 discount the opinions of her treating therapist, Carl Wilson, D.B.H., and the 28 consultative psychological examiner, Mehrnoosh Rezapour, Psy.D. (Plaintiff’s 12 Case 5:21-cv-01554-JC Document 21 Filed 12/23/22 Page 13 of 18 Page ID #:896

1 Motion at 1, 7-13). As explained below, the ALJ’s assessment of the medical 2 opinions accords with applicable standards and is supported by substantial 3 evidence in the record. 4 1. Applicable Law 5 For claims filed on or after March 27, 2017, such as plaintiff’s claims here, 6 new regulations govern the evaluation of medical opinion evidence. Under these 7 regulations, ALJs no longer “weigh” medical opinions; rather, ALJs determine 8 which opinions are the most “persuasive” by focusing on several factors: 9 (1) supportability; (2) consistency; (3) relationship with the claimant (including the 10 length of treatment, frequency of examinations, purpose of treatment, extent of 11 treatment, whether the medical source examined the claimant); (4) the medical 12 source’s specialty; and (5) “other” factors. See 20 C.F.R. § 404.1520c(c)(1)-(5). 13 The two most important factors in determining the persuasiveness of medical 14 opinions are supportability and consistency with the evidence. See 20 C.F.R. 15 § 404.1520c(a). ALJs must explain how they considered the factors of 16 supportability and consistency, but need not explain how they considered any other 17 factor. See 20 C.F.R. § 404.1520c(b). “Supportability means the extent to which a 18 medical source supports the medical opinion by explaining the ‘relevant . . . 19 objective medical evidence.’” Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 20 2022) (quoting 20 C.F.R. § 404.1520c(c)(1)). “Consistency means the extent to 21 which a medical opinion is ‘consistent . . . with the evidence from other medical 22 sources and nonmedical sources in the claim.’” Id. (quoting 20 C.F.R. 23 § 404.1520c(c)(2)). 24 Under the new regulations, treating and examining sources no longer receive 25 special deference, and the ALJ no longer needs to provide “specific and legitimate” 26 reasons to reject opinions from such sources. See 20 C.F.R. § 404.1520c; Woods, 27 32 F.4th at 792. Even so, in evaluating medical opinion evidence “under the new 28 regulations, an ALJ cannot reject an examining or treating doctor’s opinion as 13 Case 5:21-cv-01554-JC Document 21 Filed 12/23/22 Page 14 of 18 Page ID #:897

1 unsupported or inconsistent without providing an explanation supported by 2 substantial evidence.” Woods, 32 F.4th at 792. Finally, the new regulations 3 command that an opinion that a claimant is disabled or not able to work is 4 “inherently neither valuable nor persuasive,” and an ALJ need not provide any 5 analysis about how such evidence is considered. See 20 C.F.R. § 404.1520b(c)(3). 6 2. Carl Wilson, D.B.H. 7 Plaintiff began receiving therapy from Dr. Wilson in August 2016. (AR 8 410). In September 2020 and January 2021, Dr. Wilson opined that plaintiff’s 9 mental health issues rendered her permanently unable to return to normal 10 functioning. (AR 410, 422, 540, 552). He noted that plaintiff’s ability to interact 11 with others was significantly diminished, and her dysregulation likely contributed 12 to her inability to manage stress. (AR 422, 552). He further stated that plaintiff’s 13 frequent relapses would make it impossible for her to continue steady work. (AR 14 410, 552). 15 The ALJ found this opinion “less persuasive” on the grounds that it was 16 “generally unsupported and inconsistent with the evidence as a whole.” (AR 23- 17 24). As support, the ALJ noted that the record “reflects many normal mental status 18 examination findings, including those documented in Dr. Wilson’s own treatment 19 notes.” (AR 23-24; see AR 298, 329, 331, 333, 335, 337, 340-42, 345, 354, 396- 20 97, 412-16, 463, 467-68, 487, 493-94, 511-12, 521-22, 527-28, 791-96). The ALJ 21 also noted that plaintiff had significantly improved under Dr. Wilson’s care. (AR 22 23; see AR 410). These findings are supported by substantial evidence in the 23 record. 24 As for Dr. Wilson’s assertion that plaintiff was unable to work, the ALJ 25 appropriately rejected this as an opinion on an issue reserved for the 26 Commissioner. (AR 24); see 20 C.F.R. § 404.1520b(c)(3). Although the ALJ 27 “agree[d]” with Dr. Wilson that plaintiff has some limitations in interacting with 28 /// 14 Case 5:21-cv-01554-JC Document 21 Filed 12/23/22 Page 15 of 18 Page ID #:898

1 others and managing stress, the ALJ accounted for such limitations in the RFC and 2 determined that they did not preclude plaintiff from working. (AR 23-24). 3 Plaintiff contends that the ALJ should have given greater consideration to 4 the abnormal mental status findings in the record and the fact that her symptoms 5 wax and wane.6 (Plaintiff’s Motion at 10-11). However, plaintiff fails to identify 6 any error in the ALJ’s opinion, and the Court cannot second-guess the ALJ’s 7 reasonable consideration of the record evidence as a whole. Here, the ALJ’s 8 appropriately assessed Dr. Wilson’s opinion by considering its “supportability” 9 and “consistency.” See 20 C.F.R. § 404.1520c. To the extent that the ALJ rejected 10 the opinion, the ALJ adequately provided a reasonable explanation supported by 11 substantial evidence in the record. See Woods, 32 F.4th at 792. Under the 12 applicable regulations, the Court cannot require more. 13 3. Mehrnoosh Rezapour, Psy.D. 14 Dr. Rezapour provided a consultative psychological examination on March 15 16, 2020. (AR 394-98). Dr. Rezapour noted that plaintiff had no difficulty 16 interacting with the clinic staff or himself but had moderate difficulty maintaining 17 composure and even temperament. (AR 397). Dr. Rezapour also opined that 18 plaintiff had moderate difficulties in maintaining social functioning, in focusing 19 and maintaining attention, and in concentration, persistence and pace. (AR 397). 20 According to Dr. Rezapour, the objective findings presented during the interview 21 suggested that plaintiff had mild limitations in performing simple and repetitive 22 tasks, and moderate limitations in performing detailed and complex tasks; 23 performing work activities on a consistent basis without special or additional 24 25 6Plaintiff also contends that even under the new regulations, the ALJ still must provide specific and legitimate reasons to reject a treating medical source’s opinion. (Plaintiff’s Motion 26 at 9-10). However, as noted above, the Ninth Circuit has since clarified that no such requirement 27 applies under the new regulations. Woods, 32 F.4th at 792. Instead, when rejecting an opinion as unsupported or inconsistent, ALJs need only give an explanation supported by substantial 28 evidence. Id. 15 Case 5:21-cv-01554-JC Document 21 Filed 12/23/22 Page 16 of 18 Page ID #:899

1 supervision; completing a normal workday or workweek; accepting instructions 2 from supervisors and interacting with coworkers and with the public; and handling 3 the usual stresses, changes, and demands of gainful employment. (AR 397). Dr. 4 Rezapour also noted that plaintiff had a good level of personal independence and 5 was intellectually and psychologically capable of performing activities of daily 6 living. (AR 397). 7 The ALJ agreed that plaintiff had moderate limitation in social interaction, 8 concentration, and handling stresses, but the ALJ otherwise found Dr. Rezapour’s 9 opinion “less persuasive” essentially because it was not adequately supported with 10 explanations of relevant, objective evidence and was not consistent with evidence 11 from other sources in the record. (AR 23). In particular, the ALJ noted that 12 because Dr. Rezapour had not reviewed plaintiff’s medical records, he was 13 unaware of plaintiff’s “longitudinal treatment history, including the many normal 14 mental status findings.” (AR 23; see AR 298, 329, 331, 333, 335, 337, 340-42, 15 345, 354, 396-97, 412-16, 463, 467-68, 487, 493-94, 511-12, 521-22, 527-28, 791- 16 96). Instead, Dr. Rezapour’s opinion was based only on his examination and 17 plaintiff’s subjective reports. (AR 23; see AR 394-98). The ALJ also noted that 18 plaintiff reportedly was close with her family and got along well with authority 19 figures, and there was no indication that she had difficulty getting along with 20 providers. (AR 23; see AR 219, 221). Moreover, the ALJ found no indication that 21 plaintiff “would need special supervision when completing tasks or would have 22 difficulty completing a normal work schedule with the limitations assessed in the 23 [RFC].” (AR 23). 24 Plaintiff contends that the ALJ inappropriately rejected Dr. Rezapour’s 25 opinion on the ground that it was based on a “one-time examination.” (Plaintiff’s 26 Motion at 12). To the contrary, the ALJ reasonably determined that Dr. 27 Rezapour’s opinion was not supported by Dr. Rezapour’s own examination and 28 was inconsistent with the record evidence as a whole – i.e., it lacked 16 Case 5:21-cv-01554-JC Document 21 Filed 12/23/22 Page17o0f18 Page ID #:900

1 || “supportability” and “consistency.” See 20 C.F.R. § 404.1520c. The consultative 2 || examiner’s opinion was instead based mainly on plaintiff's own subjective reports 3 || — which the ALJ also appropriately discounted, as explained above. Because the 4 || ALJ addressed the two essential criteria and provided reasonable explanations 5 || supported by substantial evidence in the record, remand or reversal on the basis of 6 || the ALJ’s consideration of the medical opinions is not warranted. See Woods, 32 7 || F.4th at 792. 8 C. Any Error in the ALJ’s Failure to Address the Third Party 9 Statements of Mr. Hurtado Was Harmless 10 Plaintiff contends that the ALJ erred because he did not discuss the 11 || statements of plaintiff's partner, Mr. Hurtado, who provided a third-party function 12 || report in November 2019. (Plaintiff's Motion at 13-15; see AR 225-32). 13 As plaintiff points out, Mr. Hurtado alleged the following: Plaintiff suffers 14 || from serious mental illness that requires a lot of bed rest. (AR 225). She gets 15 || confused fairly easily, can pay attention for only a few minutes at a time, and is 16 | often forgetful and needs reminders. (AR 227, 230-31). She panics when 17 || receiving instructions, which need to be explained a few times before she 18 || understands them. (AR 230). She is often anxious and does not handle stresses or 19 || changes in routine well, and daily tasks and routines are difficult. (AR 230-32). 20 Although the ALJ did not specifically address Mr. Hurtado’s statements, any 21 || failure to do so was harmless since his statements were largely duplicative of 22 || plaintiff's own statements in the record that the ALJ appropriately assessed, as 23 || noted above.’ See Johnson v. Kijakazi, 2022 WL 3998572, at *2 (9th Cir. Sept. 1, 24 |} _ □□□□□□□□□□□□□□□□□□□□□□□ 25 "Defendant contends that under the new regulations, ALJs are not required to articulate %6 their consideration of evidence from nonmedical sources, including lay witnesses such as Mr. Hurtado. (Defendant’s Motion at 22-25). The Ninth Circuit has not ruled on this issue, Johnson 97 || v_Kijakazi, 2022 WL 3998572, at *2 (9th Cir. Sept. 1, 2022) (unpublished) (expressly declining to rule on this unresolved issue because any error was harmless), but at least some district courts 28 (continued...) 17

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1 || 2022) (unpublished) (“Because the lay witness statements were largely duplicative 2 || of [plaintiff's] own testimony, the ALJ’s failure to address the statements was 3 || inconsequential and therefore harmless.”) (citation omitted); Molina, 674 F.3d at 4 | 1115 (ALJ’s error in failing to explain his reasons for disregarding lay testimony is 5 || harmless where the reasons for rejecting a claimant’s symptom testimony apply 6 || equally to third-party lay witness testimony); Valentine, 574 F.3d at 694 (ALJ’s 7 || valid reasons for rejecting claimant's testimony were equally germane to similar 8 || lay testimony). CONCLUSION 10 For the foregoing reasons, the decision of the Commissioner of Social 11 || Security is AFFIRMED. 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 | DATED: December 23, 2022 14 /s/ 15 Honorable Jacqueline Chooljian 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 7(...continued) 74 || in this Circuit have rejected the Commissioner’s argument and concluded that ALJs still must consider lay witness statements, see, e.g., Gina S. K. v. Comm’r of Soc. Sec., 2022 WL 25 || 16947844, at *4 (W.D. Wash. Nov. 15, 2022) (concluding that the ALJ’s failure to address lay %6 witness statements was error, albeit harmless error); Neri v. Comm’r of Soc. Sec., 2022 WL 16856160, at *7 (E.D. Cal. Nov. 10, 2022) (“Based on a plain reading of the revised regulations, 97 || the Court concludes the new regulatory framework requires an ALJ to consider lay testimony, but does not necessarily require him to articulate how he considered it.”). Regardless, this Court 28 || need not address this issue because any error was harmless, as noted above. 18