Maura v. Colvin

[1] FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Jan 10, 2025 [3] SEAN F. MCAVOY, CLERK [4] 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [6] 7 BRITTANY M., NO. 4:24-CV-5105-TOR 8 Plaintiff, ORDER AFFIRMING 9 v. COMMISSIONER’S DENIAL OF BENEFITS UNDER TITLES II & XVI 10 CAROLYN COLVIN, Acting OF THE SOCIAL SECURITY ACT Commissioner of Social Security 1 [11] Defendant. [12] 13 BEFORE THE COURT is Plaintiff’s Motion for judicial review of 14 Defendant’s denial of her application for Title II and Title XVI under the Social [15] 1 Carolyn Colvin became the Acting Commissioner of Social Security on [16] November 30, 2024. Pursuant to Rule 25(d) of the Federal Rules of Civil [17] Procedure, Carolyn Colvin is substituted for Martin O’Malley as the defendant in [18] this suit. No further action need be taken to continue this under the Social Security [19] Act, 42 U.S.C. § 405 (g). [20] 1 Security Act (ECF No. 7). This matter was submitted for consideration without 2 oral argument. The Court has reviewed the administrative record and is fully 3 informed. For the reasons discussed below, the Commissioner’s denial of 4 Plaintiff’s application for benefits under Title II and Title XVI of the Social 5 Security Act is AFFIRMED. 6 JURISDICTION 7 The Court has jurisdiction under 42 U.S.C. §§ 405 (g), 1383(c)(3). 8 STANDARD OF REVIEW 9 A district court’s review of a final decision of the Commissioner of Social 10 Security is governed by 42 U.S.C. § 405 (g). The scope of review under § 405(g) is 11 limited: the Commissioner’s decision will be disturbed “only if it is not supported 12 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153 , 13 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405 (g)). “Substantial evidence” means 14 relevant evidence that “a reasonable mind might accept as adequate to support a 15 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 16 substantial evidence equates to “more than a mere scintilla[,] but less than a 17 preponderance.” Id. (quotation and citation omitted). In determining whether this 18 standard has been satisfied, a reviewing court must consider the entire record as a 19 whole rather than searching for supporting evidence in isolation. Id. [20] 1 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152 , 3 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 4 rational interpretation, [the court] must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 6 F.3d 1104 , 1111 (9th Cir. 2012). Further, a district court “may not reverse an 7 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 8 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” [9] Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 10 decision generally bears the burden of establishing that it was harmed. Shinseki v. 11 Sanders, 556 U.S. 396, 409-10 (2009). 12 FIVE STEP SEQUENTIAL EVALUATION PROCESS 13 A claimant must satisfy two conditions to be considered “disabled” within 14 the meaning of the Social Security Act. First, the claimant must be “unable to 15 engage in any substantial gainful activity by reason of any medically determinable 16 physical or mental impairment which can be expected to result in death or which 17 has lasted or can be expected to last for a continuous period of not less than twelve 18 months.” 42 U.S.C. §§ 423 (d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 19 impairment must be “of such severity that [he or she] is not only unable to do [his 20 or her] previous work[,] but cannot, considering [his or her] age, education, and 1 work experience, engage in any other kind of substantial gainful work which exists 2 in the national economy.” 42 U.S.C. §§ 423 (d)(2)(A), 1382c(a)(3)(B). 3 The Commissioner has established a five-step sequential analysis to 4 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 5 404.152(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 6 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520 (a0(4)(i), 7 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 8 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 9 404.1520(b), 416.920(b). Substantial work activity is “activity that involves doing 10 significant physical or mental activities,” even if performed on a part -time basis. [11] 20 C.F.R. § 404.1572 (a). “Gainful work activity” is work performed “for pay or 12 profit,” or “the kind of work usually done for pay or profit, whether or not a profit 13 is realized.” 20 C.F.R. § 404.1572 (b). 14 If the claimant is not engaged in substantial gainful activities, the analysis 15 proceeds to step two. At this step, the Commissioner considers the severity of the 16 claimant’s impairment. 20 C.F.R. §§ 416.1520 (a)(4)(ii), 416.920(a)(4)(ii). If the 17 claimant suffers from “any impairment or combination of impairments which 18 significantly limits [his or her] physical or mental ability to do basic work 19 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520 (c), [20] 1 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 2 however, the Commissioner must find that the claimant is not disabled. Id. 3 At step three, the Commissioner compares the claimant’s impairment to 4 several impairments recognized by the Commissioner to be so severe as to 5 preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 6 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of 7 enumerated impairments, the Commissioner must find the claimant disabled and 8 award benefits. 20 C.F.R. § 416.920 (d). 9 If the severity of the claimant’s impairment does meet or exceed the severity 10 of the enumerated impairments, the Commissioner must pause to assess the 11 claimant’s “residual functional capacity” (“RFC”) before awarding benefits. RFC 12 is generally defined as the claimant’s ability to perform physical and mental work 13 activities on a sustained basis despite his or her limitations ( 20 C.F.R. §§ 14 404.1545(a)(1), 416.945(a)(1)), and is relevant to both the fourth and fifth steps of 15 the analysis. 16 At step four, the Commissioner considers whether, in view of the RFC, the 17 claimant is capable of performing work that he or she has performed in the past. [18] 20 C.F.R. §§ 404.1520 (a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of 19 performing past relevant work, the Commissioner must find that the claimant is not [20] 1 disabled. 20 C.F.R. §§ 404.1520 (f), 416.920(f). If the claimant is incapable of 2 performing such work, the analysis proceeds to step five. 3 At step five, the Commissioner considers whether, in view of the RFC, the 4 claimant is capable of performing other work in the national economy. 20 C.F.R. 5 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). Work in the national economy “means 6 work which exists in significant numbers either in the region where [the] 7 individual lives or in several regions of the country.” 42 U.S.C § 423(d)(2)(A). 8 The Commissioner can meet this burden by soliciting the impartial testimony of a 9 vocational expert. White v. Kijakazi, 44 F.4th 828, 833-34 (9th Cir. 2022). 10 In making this determination, the Commissioner must also consider factors such as 11 the claimant’s age, education and work experience. Id. If the claimant is capable 12 of adjusting to other work, the Commissioner must find that the claimant is not 13 disabled. 20 C.F.R. §§ 404.1520 (g)(1), 416.920(g)(1). If the claimant is not 14 capable of adjusting to other work, the analysis concludes with a finding that the 15 claimant is disabled and is therefore entitled to benefits. Id. 16 The claimant bears the burden of proof at steps one through four above, and 17 a claimant who meets the first four steps has established a prima facie case of 18 disability and entitlement to benefits. White, 44 F.4th at 833 (citing Tackett v. 19 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step five, the burden shifts to the 20 Commissioner to establish that (1) the claimant is capable of performing other 1 work and (2) such work “exists in significant numbers in the national economy.” [2] 20 C.F.R. §§ 404.1550 (c)(2), 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386 , 389 3 (9th Cir. 2012). 4 ALJ’s FINDINGS 5 On January 27, 2021, Plaintiff applied for Title II disability and disability 6 insurance benefits, and protectively filed for Title XVI supplemental security 7 income on December 8, 2021, with an alleged onset date of November 30, 2020. 8 Administrative Transcript (“Tr.”) ECF No. 6 at 22. Plaintiff generally alleged she 9 was disabled due to catatonia, anxiety, psychosis, eps prophylaxis, psychosis and 10 mood, bipolar disorder mixed with psychosis, and migraines. Tr. 73. These 11 applications were initially denied April 26, 2022, and upon reconsideration on 12 August 30, 2022. Tr. 22. By mutual agreement, the Administrative Law Judge 13 (“ALJ”) conducted a telephonic hearing on October 24, 2023. Id. The ALJ denied 14 Plaintiff’s claims on November 20, 2023. See generally Tr. 22‒36. Plaintiff’s 15 claim was denied on appeal. Tr. 6. 16 At step one, the ALJ determined that Plaintiff had not engaged in gainful 17 employment since the onset date, November 30, 2020. Tr. 24. 18 At step two, the ALJ determined that Plaintiff had the following severe 19 impairments: bipolar disorder, catatonia, posttraumatic stress disorder (“PTSD”), 20 and migraines. Tr. 24. The ALJ found that Plaintiff’s hand tremors are managed 1 by medication, per her report, and therefore non-severe. Tr. 25. 2 At step three, the ALJ found that Plaintiff’s impairments did not meet or 3 medically equal a listed impairment in 20 CFR Part 404, Subpart P, Appendix 1 4 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). 5 With respect to Plaintiff’s migraines, the ALJ analogized to listing 11.02(B) or (D) 6 for dyscognitive seizures. The ALJ determined that the record did not establish the 7 requirement under 11.02(B) that Plaintiff experienced at least one migraine a week 8 for at least three consecutive months, despite adherence to a prescribed treatment. 9 Tr. 25. Specifically, the ALJ opined that at times the record reflected that 10 Plaintiff’s medication regime managed her migraines in such a way that they 11 occurred less than once a week. Id. In referencing later analysis, the ALJ 12 determined that Plaintiff did not have more than a moderate limitation with respect 13 to (1) physical functioning, (2) understanding, remembering, or applying 14 information, (3) interacting with others, (4) concentrating, persisting, or 15 maintaining pace, or (5) adapting or managing oneself in conjunction with one 16 migraine a week for three consecutive months pursuant to 11.02(D). Id. 17 Regarding Plaintiff’s mental impairments, the ALJ determined that when 18 considered singularly or in combination, they did not meet or medically equal the 19 criteria as set forth in 12.03, 12.04, and 12.15, and did not result in a “Paragraph 20 B” impairment of one extreme limitation or two marked limitations in functioning. 1 Tr. 26. Regarding understanding, remembering, or applying information, the ALJ 2 found that Plaintiff had a moderate limitation as demonstrated by her improvement 3 after inpatient treatment in 2020. Id. After treatment, the ALJ noted Plaintiff 4 experienced points of poor computations or impaired cognition, but as a whole was 5 able to handle her medical care and finances, and engaged in cooking, cleaning, 6 driving, and caring for her two children. Id. Likewise, the ALJ determined that 7 Plaintiff had a moderate impairment in interacting with others, based in part on the 8 paranoid delusions she experienced in 2020, paired with her continued symptoms 9 of anxiety and depression that have improved with treatment. Id. Once again, the 10 ALJ determined that Plaintiff has a moderate limitation in concentrating, 11 persisting, or maintaining pace, based on her recorded speech latency and problems 12 concentrating as compared with her current activities like driving, handling 13 finances, and caring for a household. Id. Finally, the ALJ also found a moderate 14 limitation in adapting or managing oneself, based on both the effect stress has on 15 her, blacking out and limiting articulation, as weighed against her independent and 16 parenting activity. Tr. 27. The ALJ also found that “Paragraph C” was not 17 satisfied because Plaintiff has a demonstrated ability to adapt to change. Id. 18 Based on the record, the ALJ determined that Plaintiff could perform a full 19 range of work at all exertional levels but with the following nonexertional 20 limitations: 1 [S]he can never climb ladders, ropes, or scaffolds, and she can have no exposure to workplace hazards, including unprotected heights and 2 moving mechanical parts. The claimant can perform simple, routine tasks, but not at a production rate pace. She can make simple work3 related decisions, adapt to occasional changes in the work routine, and have occasional interaction with supervisors and coworkers, while she 4 can have no interaction with the public. 5 Tr. 27 6 As part of determining Plaintiff’s Residual Functional Capacity, the ALJ 7 engaged in a two-step process by which she first assessed whether Plaintiff’s 8 underlying medical impairments could reasonably be expected to produce the 9 claimant’s symptoms and if so, second whether the symptoms have the requisite 10 intensity, persistence, and limiting effect of Plaintiff’s work-related activities. Tr. 11 28. The ALJ found that Plaintiff’s medically determinable impairments could 12 cause the alleged symptoms, but the intensity, persistence, and limiting effects of 13 the symptoms were not consistent with the record. Id. The ALJ considered 14 Plaintiff’s mental health treatment, beginning in November and December 2020 15 with inpatient treatment, documenting her outpatient treatment and work with her 16 providers to find the dosage of medication that provided relief, and credited her 17 most recent provider Spencer Hendricks, PMHNP-BC, who found that Plaintiff 18 had a brief psychological break in late 2020, from which she has recovered. Tr. 19 29. This was supported by a record that reflected periods of anxiety and 20 depression treated by medication and therapy, and an ability to manage her 1 household. Tr. 30. 2 With respect to her migraines, the ALJ found the reporting of their 3 frequency was mixed. Tr. 31. The ALJ noted that when Plaintiff began treatment 4 for her migraines in 2021, she was having headaches once per week, but with both 5 daily and abortive treatment, she reported having less than one per week by 2022. 6 Tr. 30. Then in August of 2022, Plaintiff reported having headaches every other 7 day, and later that year reported she was having four or five headaches a month 8 and they were improving with treatment. Tr. 30. In August 2023, Plaintiff 9 reported two to three migraines per week, triggered by stress and causing nausea, 10 light sensitivity, and sound sensitivity. Tr. 31. Plaintiff was also prescribed 11 rizatriptan rather than sumatriptan to mitigate her headaches without making her 12 drowsy. Id. The ALJ took into account that the appearance of improvement of the 13 frequency of the headaches, coupled with Plaintiff’s ability to participate in 14 psychiatric care and the management of her household, and found that her 15 migraines did not cause a greater or additional limitation. Id. 16 In drawing her conclusion, the ALJ considered the medical opinions of 17 psychological consultant Sheri L. Tomak, Psy.D., psychological consultant 18 Matthew Cormie, Psy.D., Plaintiff’s treating psychiatric provider Spencer 19 Hendricks, PMHNP-PC, medical consultant Dorothy Leong, M.D., medical 20 consultant Ruth Childs, M.D., and Plaintiff’s primary care provider, Mary Buriani, 1 M.D. In considering Dr. Tomak and Dr. Cormie’s opinions, the ALJ found 2 agreement that the Plaintiff would have difficulty adapting to change and other 3 stressors in the workplace and would function best with limited social demand. Tr. 4 32. However, both Dr. Tomak and Dr. Cormie’s opinions suffered from individual 5 shortcomings, and thus the ALJ did not adopt either in whole. Id. The ALJ found 6 Mr. Hendricks’ opinion to be unpersuasive as it is vague and lacked objective 7 evidence supporting his diagnosis of a learning disorder rather than bipolar 8 disorder. Id. The ALJ found Dr. Leong’s opinion that Plaintiff’s migraines were 9 not severe to be unsupported by the record. Tr. 33. The ALJ found Dr. Childs and 10 Dr. Buriani to be consistent at points with one another, but also had individual 11 problems. Id. Additionally, the ALJ noted that she had reviewed the statements of 12 third party laypersons, but had included them only for the subjective support of 13 Plaintiff’s allegations and not for persuasiveness. Tr. 34. 14 At step four, the ALJ found that Plaintiff is unable to perform any past 15 relevant work pursuant to 20 CFR 404.1565 and 416.965. 16 At step five, the ALJ found that Plaintiff is able to perform work in the 17 national economy, considering her age, education, work experience, and residual 18 functional capacity. Tr. 34. At the hearing, the vocational expert assessed 19 occupational opportunities for unskilled work at all exertional levels, but with 20 Plaintiff’s nonexertional limitations. Tr. 35. The vocational expert determined 1 that occupations such as: hand packager, floor waxer, and counter supply worker 2 would be available nationally. Id. The ALJ noted that during her testimony, the 3 vocational expert clarified that the Dictionary of Occupational Titles does not 4 directly address differences between types of climbing, working at a production 5 pace, or levels of interaction with specific groups, but had made a final 6 determination of Plaintiff’s ability to participate in the outlined occupational 7 descriptions based on the expert’s professional training and experience. Id. 8 Given the above steps, the ALJ determined that Plaintiff was not disabled. 9 ISSUES 10 Plaintiff seeks judicial review of the Commissioner’s final decision denying 11 her applications for Title II disability and disability insurance, and Title XVI 12 supplemental security income of the Social Security Act. Plaintiff raises the 13 following issues on review: 14 I. Whether the ALJ properly assessed Plaintiff’s subjective complaints when considering her Residual Functional Capacity. [15] II. Whether the ALJ committed harmful legal error by failing to properly 16 evaluate lay witness testimony when considering Plaintiff’s Residual Functional Capacity. [17] III. Whether the ALJ’s Step Five findings are supported by a showing of a 18 significant number of jobs in the national economy, or whether the jobs in the holding are obsolete. [19] 20 ECF No. 7 at 1‒2. 1 DISCUSSION 2 I. The ALJ properly evaluated Plaintiff’s subjective complaints as part 3 of determining her Residual Functional Capacity. 4 Plaintiff faults the ALJ for (1) stating that she was switched from 5 sumatriptan to rizatriptan in an attempt to find a non-drowsy emergency migraine 6 aid without stating whether the change was helpful, (2) the conclusion that Plaintiff 7 could be on task during the workday as unsupported by the record, and (3) that it 8 was improper for the ALJ to rely on Plaintiff’s daily activities as a counterweight 9 to Plaintiff’s claim of disability. ECF No. 7 at 7‒8. 10 An ALJ engages in a two-step analysis to determine whether to discount a 11 claimant’s testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 12 1119029, at *2. “First, the ALJ must determine whether there is ‘objective 13 medical evidence of an underlying impairment which could reasonably be 14 expected to produce the pain or other symptoms alleged.’” Molina, 674 F.3d at 15 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “The 16 claimant is not required to show that [the claimant’s] impairment ‘could reasonably 17 be expected to cause the severity of the symptom [the claimant] has alleged; [the 18 claimant] need only show that it could reasonably have caused some degree of the 19 symptom.’” Vasquez, 572 F.3d at 591 (quoting Lingenfelter v. Astrue, 504 F.3d 20 1028, 1035-36 (9th Cir. 2007)). 1 Second, “[i]f the claimant meets the first test and there is no evidence of 2 malingering, the ALJ can only reject the claimant’s testimony about the severity of 3 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 4 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 5 omitted). General findings are insufficient; rather, the ALJ must identify what 6 symptom claims are being discounted and what evidence undermines these claims. [7] Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 8 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 9 explain why he or she discounted a plaintiff’s symptom claims). “The clear and 10 convincing [evidence] standard is the most demanding required in Social Security 11 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 12 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 13 Here, the ALJ found that Plaintiff’s medical impairments could reasonably 14 be expected to cause the alleged symptoms, but her statements surrounding the 15 intensity, persistence, and limiting effect of the impairments were not consistent 16 with the record. Tr. 28. 17 Factors to be considered in evaluating the intensity, persistence, and limiting 18 effects of a claimant’s symptoms include: 19 (1) daily activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3) factors that precipitate and aggravate the 20 symptoms; (4) the type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other 1 symptoms; (5) treatment, other than medication, an individual receives or has received for relief of pain or other symptoms; (6) any measures 2 other than treatment an individual uses or has used to relieve pain or other symptoms; and (7) any other factors concerning an individual’s 3 functional limitations and restrictions due to pain or other symptoms. 4 SSR 16-3p, 2016 WL 1119029 , at *7-*8; 20 C.F.R. §§ 404.1529 (c), 416.929(c). 5 As to Plaintiff’s contention that the ALJ failed to determine whether the 6 switch to rizatriptan actually provided relief or caused her continued drowsiness, 7 Plaintiff points to no place in the record detailing the medical outcome of the 8 change in medication, or if the change happened at all. The ALJ is instructed to 9 “consider all of the evidence in an individual’s record,” “to determine how 10 symptoms limit ability to perform work-related activities.” SSR 16-3p, 2016 WL 11 1119029, at *2. At the October 2023 hearing, Plaintiff stated she was still taking 12 sumatriptan, which requires her to sleep in order to provide relief. Tr. 58. In the 13 latest medical record discussing her migraine treatment, an August 2023 visit with 14 Dr. Bariani, the notes indicate that the provider was planning to switch Plaintiff 15 from sumatriptan to rizatriptan to see if it provided rescue relief without making 16 her drowsy. Tr. 743. Here, the ALJ cited to the record as it currently exists, the 17 Court could not locate a later in time medical record from any source that details if 18 Plaintiff ultimately switched to rizatriptan, whether it provided her relief, and if it 19 had the same drowsy side effects as sumatriptan. And with the record as the 20 backdrop, the ALJ found that Plaintiff did not demonstrate she would be off task to 1 a significant degree during the workday, given her role as a caregiver and 2 performing activities like cleaning, preparing meals, shopping, handling finances 3 and driving a car. Tr. 31. This was considered longitudinally, as the ALJ 4 considered the holistic way in which Plaintiff has been able to be an active 5 participant in providing childcare and in everyday tasks, in spite of her 6 impairments, from 2021 to 2023. Id. 7 Plaintiff also faults the ALJ for taking into account her daily activities as 8 evidence against disability. ECF No. 7 at 8‒9. In testing a plaintiff’s subjective 9 testimony, an ALJ may consider inconsistencies in the claimant's testimony by 10 positing “whether the claimant engages in daily activities inconsistent with the 11 alleged symptoms.” Lingenfelter, 504 F.3d at 1040 . A claimant need not 12 “‘vegetate in a dark room’” in order for an ALJ to make a finding of disability. 13 Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir.1987) (quoting Smith v. Califano, [14] 637 F.2d 968, 971 (3d Cir.1981)). However, an “ALJ may discredit a claimant's 15 testimony when the claimant reports participation in everyday activities indicating 16 capacities that are transferable to a work setting.” Molina, 674 F.3d at 1113 17 (internal citations omitted). “Even where those activities suggest some difficulty 18 functioning, they may be grounds for discrediting the claimant's testimony to the 19 extent that they contradict claims of a totally debilitating impairment.” Id. 20 Additionally, an ALJ may take reports of daily activities and improvement after 1 receiving treatment as factors when assessing the credibility of a plaintiff’s 2 subjective description of symptoms. Degen v. Berryhill, 725 F. App'x 550 , 553 3 (9th Cir. 2018) (citing Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219 , 1227 4 (9th Cir. 2009) (“[A]n ALJ may weigh inconsistencies between the claimant's 5 testimony and his or her conduct, daily activities, and work record, among other 6 factors.”)). 7 Here, the ALJ considered how Plaintiff’s migraines impacted her daily life 8 and found that while receiving psychiatric care from 2021 to 2023, there are few 9 instances of reporting that Plaintiff was off task or had a deficit in concentration. 10 Tr. 31. Moreover, in areas where she was reported to be off topic or lacking 11 concentration, there was no note of accompanied migraine. Id. And with regard to 12 Plaintiff’s assertion that being a caregiver and household manager is an improper 13 basis to discredit subjective testimony, the ALJ pointed to clear places where she 14 found Plaintiff’s testimony to be inconsistent with her activity. See Rollins v. 15 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“The ALJ also pointed out ways in 16 which Rollins' claim to have totally disabling pain was undermined by her own 17 testimony about her daily activities, such as attending to the needs of her two 18 young children, cooking, housekeeping, laundry, shopping, attending therapy and 19 various other meetings every week, and so forth.”). The ALJ noted that by her 20 own testimony at the hearing, Plaintiff is able to “push through,” her symptoms in 1 order to care for her children, suggesting that she is able to perform daily activities 2 and contradicting her subjective reporting. Tr. 28, 33. In sum, the ALJ did not 3 provide improper analysis when discrediting the degree to which Plaintiff argued 4 she is impaired. 5 II. The ALJ considered the lay witness statements appropriately. 6 Plaintiff argues that the ALJ erred by not considering a lay witness opinion 7 of her grandmother when deciding whether her reported symptoms were supported 8 by the record. ECF No. 7 at 13. As Plaintiff filed these claims on January 27, 9 2021, the post-March 27, 2017, rules are controlling. See 20 C.F.R. § 404 .1520c; 10 Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 11 5844-01 (Jan. 18, 2017), available at 2017 WL 168819 . 12 An ALJ is not required to articulate how he or she considered evidence from 13 nonmedical sources under the new regulations. See 20 C.F.R. §§ 404 .1520c(d), 14 416.920c(d). Under the pre-2017 rules, an ALJ could reject a lay-witness opinion 15 if it was inconsistent with the medical evidence and where the testimony 16 “generally repeat[s]” discredited evidence of a plaintiff. Williams v. Astrue, 493 17 Fed. Appx. 866, 869 (9th Cir. 2012) (quoting Valentine v. Comm'r of Soc. Sec. 18 Admin., 574 F.3d 685, 690 (9th Cir.2009). Plaintiff is correct that some courts 19 have found that under the new regulation, an ALJ still needs to articulate their 20 consideration of lay-witness statements and the reasons for discounting them. 1 Faviola V. v. O'Malley, 1:22-CV-03074-RHW, 2024 WL 2992498 , at *1 (E.D. 2 Wash. June 14, 2024); Maureen P. v. Kijakazi, 1:20-CV-03240-MKD, 2022 WL 3 1843988, at *10 (E.D. Wash. Feb. 23, 2022) (quoting Joseph M. R. v. Comm'r of 4 Soc. Sec., 3:18-CV-01779-BR, 2019 WL 4279027 , at *12 (D. Or. Sept. 10, 2019). 5 However, an ALJ is not required “to discuss every witness's testimony on a[n] 6 individualized, witness-by-witness basis. Rather, if the ALJ gives germane reasons 7 for rejecting testimony by one witness, the ALJ need only point to those reasons 8 when rejecting similar testimony by a different witness.” Joseph M. R., 2019 WL 9 4279027, at *11 (quoting Molina, 674 F.3d at 1114). 10 Here, the ALJ did not err in her articulation of the rejection of Plaintiff’s 11 grandmother’s statement as she included it as lending support to Plaintiff’s report 12 of impairment. Specifically, the ALJ stated: 13 According to the new rules for analyzing evidence, third party layperson statements are not medical opinions that require an analysis 14 of persuasiveness, so while I noted such a statement in the record, I considered it only as subjective support for the claimant’s allegations 15 (Exhibit 13E). 16 Tr. 34. 17 The ALJ here made explicit reference to the lay opinion in question, Exhibit 18 13E, and stated that it was accepted in support of Plaintiff’s subjective report of 19 impairment. This is a satisfactory acknowledgement of the lay witness opinion and 20 how it fits into the ALJ’s overall determination of disability. 1 III. The ALJ did not err at Step Five with regard to questioning the 2 vocational expert specifically about the labor market. 3 Finally, Plaintiff argues that the determination of the ALJ should be 4 remanded for an accurate finding of jobs within Plaintiff’s limitations that are not 5 obsolete. ECF No. 7 at 15. Under step five of the analysis, the Commissioner 6 bears the burden of demonstrating that a specific number of jobs exist in the 7 national economy that a plaintiff can perform despite the denoted limitations. 8 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). In aid of this 9 determination, the ALJ may rely on an impartial vocational expert to testify 10 regarding jobs that the plaintiff can perform in light of the explained limitations. 11 Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). Additionally, the ALJ must 12 utilize the Dictionary of Occupational Titles (“DOT”), which is compiled by the 13 Department of Labor and details the specific requirements for different 14 occupations. “If the expert's opinion that the applicant is able to work conflicts 15 with, or seems to conflict with, the requirements listed in the Dictionary, then the 16 ALJ must ask the expert to reconcile the conflict before relying on the expert to 17 decide if the claimant is disabled.” Gutierrez v. Colvin, 844 F.3d 804, 807 (9th 18 Cir. 2016) (citing SSR 00-4P, 2000 WL 1898704 , at *2 (2000)). 19 Plaintiff argues that the ALJ erred by not questioning the vocational expert 20 utilized in this case about whether the jobs she developed based on Plaintiff’s 1 residual functional capacity, hand packager, floor waxer, and counter supply 2 worker, actually exist in great numbers in the national economy. ECF No. 7 at 15. 3 Plaintiff argues that the Commissioner’s release of an Emergency Message on June 4 22, 2024, quantifying 114 jobs as “isolated” for Step Five purposes, calls into 5 question the ALJ’s finding.2 Under the relevant regulation, when a job is classified 6 as “isolated,” it has been determined that the occupation does not exists in the 7 national economy. 20 C.F.R. § 404.1566 (b). If the only jobs that a plaintiff is able 8 to do are “isolated,” then they are considered disabled, because jobs do not exist in 9 the national economy that they can perform. 10 However, hand packager, floor waxer, or counter supply worker are not on 11 the list of isolated jobs in the June 2024 Emergency Message, and Plaintiff does 12 not point to a place in which the Commissioner has denoted them as such. Instead, 13 Plaintiff argues that the ALJ erred by not inquiring whether the occupation 14 descriptions were in conflict with the current labor market. ECF No. 7 at 15. [15] 2 See Social Security Administration, Isolated Occupations We Will Not Use to [16] Support a “Not Disabled” Finding at Step Five of the Sequential Evaluation [17] Process, EM-24026, Regarding the Citation of Certain Occupations at Step Five of [18] the Sequential Evaluation Process, EM-24027, [19] https://secure.ssa.gov/apps10/reference.nsf/links/06212024021759PM. [20] 1 When an ALJ utilizes a vocational expert, the adjudicator has an affirmative 2 responsibility to ask about any possible conflicts between the evidence and 3 information by the DOT and resolve the conflict, should it exist. Tester v. Colvin, [4] 624 Fed. Appx. 485, 487 (9th Cir. 2015) (citing SSR 00–4p, 2000 WL 1898704 , at 5 *2 (Dec. 4, 2000) (“SSR 00–4p”). However, conflicts between a DOT listing and 6 expert testimony must be obvious or apparent, meaning, “that the testimony must 7 be at odds with the Dictionary's listing of job requirements that are essential, 8 integral, or expected.” Gutierrez, 844 F.3d at 808 . Here, the ALJ did not err 9 because during the hearing, she specifically asked the vocational expert about 10 conflicts between the DOT and the expert’s findings, and the expert provided 11 clarification, but did not mention any job viability conflicts. Tr. 70‒71. Plaintiff 12 raises no conflict between the testimony and the actual requirements of the 13 occupations as listed by DOT, and though argues that there are “serious doubts 14 about the viability of these occupations in the current national economy,” does not 15 provide any support for such assertion. Without more, the Court cannot find that 16 the ALJ committed harmful error as she met the requirements of SSR 00–4p in 17 making her inquiry of the expert at the hearing. Thus, the ALJ’s Step Five analysis 18 is affirmed. 19 // 20 // 1]; ACCORDINGLY, IT IS HEREBY ORDERED: 2 1. Plaintiff's Opening Brief (ECF No. 7) is DENIED. 3 2. Defendant’s Response Brief (ECF No. 9) is GRANTED. The final 4 decision of the Commissioner is AFFRIMED. 5 The District Court Executive is directed to enter this Order and Judgment 6|| accordingly, furnish copies to counsel, and CLOSE the file. 7 DATED January 10, 2025. CO DD - Se Luts 0. Kiet 9 ANE THOMAS O. RICE <> United States District Judge [20] ORDER AFFIRMING COMMISSIONER’S DENIAL OF BENEFITS UNDER