Hudnall v. Kijakazi

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — JOHN H., 7 Case No. 22-cv-02864-DMR Plaintiff, — 8 — v. ORDER ON CROSS MOTIONS FOR 9 SUMMARY JUDGMENT KILOLO KIJAKAZI, 10 Re: Dkt. Nos. 15, 16 Defendant. — 11 — 12 Plaintiff John H. moves for summary judgment to reverse the Commissioner of the Social 13 Security Administration’s (the “Commissioner’s”) final administrative decision, which found 14 Plaintiff not disabled and therefore denied his application for benefits under Title II of the Social 15 Security Act, 42 U.S.C. § 401 et seq. [Docket No. 15.] The Commissioner cross-moves to affirm. 16 [Docket No. 16.] For the reasons stated below, the court denies Plaintiff’s motion and grants the 17 Commissioner’s cross motion. 18 I. PROCEDURAL HISTORY 19 Plaintiff filed an application for Social Security Disability Insurance (“SSDI”) benefits on 20 March 10, 2020, alleging disability beginning March 1, 2015. Administrative Record (“A.R.”) 21 166-67. The application was initially denied on June 3, 2020 and again on reconsideration on 22 October 7, 2020. A.R. 97-100, 105-111. An Administrative Law Judge (“ALJ”) held a telephonic 23 hearing on May 25, 2021 and issued an unfavorable decision on August 5, 2021. A.R. 17-35. The 24 ALJ determined that Plaintiff has the following severe impairment: major depressive disorder. 25 A.R. 23 . The ALJ found that Plaintiff retains the following residual functional capacity (“RFC”): 26 [T]he claimant had the had the residual functional capacity to perform a full range of work at all exertional levels but with the following 27 nonexertional limitations: no exertional limits, is precluded from performing complex and detailed tasks but remains capable of environment, able to maintain concentration, persistence and pace for 1 two hour increments which presupposes that the morning break, lunch break and afternoon break would form the natural barriers for those 2 increments, no more than occasional work with coworkers and supervisors, and no work with the general public and no work on 3 assembly lines or similar production-paced type jobs. 4 A.R. 25 . Relying on the opinion of a vocational expert (“VE”) who testified that an individual 5 with such an RFC could perform other jobs existing in the economy, including assembler, 6 production; office clerk paster; clerk/addresser; and packer, the ALJ concluded that Plaintiff is not 7 disabled. A.R. 33-35. 8 After the Appeals Council denied review, Plaintiff sought review in this court pursuant to — 9 — 42 U.S.C. § 405 (g). 10 II. ISSUES FOR REVIEW 11 1. Did the ALJ err in weighing the medical evidence? 12 2. Did the ALJ err in evaluating Plaintiff’s credibility? 13 3. Did the ALJ err in evaluating the lay witness testimony? 14 4. Did the ALJ err in finding that Plaintiff can perform the jobs identified by the VE? 15 III. STANDARD OF REVIEW 16 Pursuant to 42 U.S.C. § 405 (g), this court has the authority to review a decision by the 17 Commissioner denying a claimant disability benefits. “This court may set aside the 18 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 19 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 20 F.3d 1094 , 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 21 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 22 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a 23 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 24 When performing this analysis, the court must “consider the entire record as a whole and may not 25 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. 26 Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation and quotation marks omitted). 27 If the evidence reasonably could support two conclusions, the court “may not substitute its 1 F.3d 1064 , 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s 2 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 3 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 4 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 5 IV. DISCUSSION 6 A. The ALJ’s Weighing of the Medical Opinions 7 1. Legal Standard 8 Plaintiff filed an application for disability benefits after March 27, 2017. Therefore, the 9 court analyzes the claim under the Social Security Administration’s (“SSA”) regulations and 10 Social Security Rulings regarding the evaluation of medical opinion evidence that became 11 applicable as of that date. This includes SSR 96-2p, “Titles II and XVI: Giving Controlling 12 Weight to Treating Source Medical Opinions.” See Rescission of Soc. Sec. Rulings 96-2p, 96-5p, 13 & 06-3p, SSR 96-2P (S.S.A. Mar. 27, 2017). Under the new regulations, the SSA will no longer 14 give “any specific evidentiary weight, including controlling weight,” to medical opinions or prior 15 administrative medical findings, including those from treating physicians. 20 C.F.R. § 16 404.1520c(a); 20 C.F.R. § 416 .920c(a). Instead, the SSA must evaluate the “persuasiveness” of 17 all medical opinions based on several factors, including supportability, consistency, the source’s 18 relationship with the claimant, length of the treatment relationship, frequency of examinations, 19 purpose of the treatment relationship, whether the source has examined the claimant, any 20 specialization, and other factors, such as “evidence showing a medical source has familiarity with 21 the other evidence in the claim or an understanding of [the SSA’s] disability program’s policies 22 and evidentiary requirements.” 20 C.F.R. 20 C.F.R. § 404 .1520c(a), (c), 20 C.F.R. § 416 .920c(a), 23 (c). The two most important factors in determining the persuasiveness of medical opinions are 24 consistency and supportability. Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022) (citing 20 25 C.F.R. § 404 .1520c(a)); see also 20 C.F.R. § 416 .920c(a). 26 “Although the regulations eliminate the ‘physician hierarchy,’ deference to specific 27 medical opinions, and assigning ‘weight’ to a medical opinion, the ALJ must still ‘articulate how 1 opinions.” V.W. v. Comm’r of Soc. Sec., No. 18-CV-07297-JCS, 2020 WL 1505716 , at *14 (N.D. 2 Cal. Mar. 30, 2020). “[A]n ALJ cannot reject an examining or treating doctor’s opinion as 3 unsupported or inconsistent without providing an explanation supported by substantial evidence.” 4 Woods, 32 F.4th at 792. “The agency must ‘articulate . . . how persuasive’ it finds ‘all of the 5 medical opinions’ from each doctor or other source, and ‘explain how [it] considered the 6 supportability and consistency factors’ in reaching these findings. Id. (quoting 20 C.F.R. §§ 7 404.1520c(b), 404.1520c(b)) (internal citations omitted); see also 20 C.F.R. § 416 .920c(b)). 8 “Supportability means the extent to which a medical source supports the medical opinion by 9 explaining the ‘relevant . . . objective medical evidence.’” Woods, 32 F.4th at 791-92 ; see also 20 10 C.F.R. § 404 .1520c(c)(1) (“The more relevant the objective medical evidence and supporting 11 explanations presented by a medical source are to support his or her medical opinion(s) . . . , the 12 more persuasive the medical opinions . . . will be”). “Consistency means the extent to which a 13 medical opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical 14 sources in the claim.’” Woods, 32 F.4th at 792 ; see also 20 C.F.R. §§ 404 .1520c(c)(2) (“The more 15 consistent a medical opinion(s) . . . is with the evidence from other medical sources and 16 nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be”). 17 When rejecting a medical opinion as unsupported or inconsistent, the ALJ is required to 18 “provid[e] an explanation supported by substantial evidence.” Woods, 32 F.4th at 792 . 19 2. Analysis 20 Plaintiff contends the ALJ erred in finding the opinions of Jana Klass, LMFT and Dana 21 Rosca, MD, unpersuasive. He also argues that the ALJ erred in finding the opinions of Hiroyuki 22 Ide, MD, and Yutaka Minohara, MD unpersuasive. 23 a. Klass and Rosca 24 Jana Klass, LMFT, and Dana Rosca, MD completed a Mental Disorder Questionnaire 25 Form and Short Form Evaluation for Mental Disorders on May 13, 2020 (together, “the 26 evaluations”). A.R. 421-25A.R. 426-30. Although both Klass and Dr. Rosca signed the 27 evaluations, it appears that they are primarily based on Klass’s treatment of Plaintiff because they 1 until April 2020. See A.R. 421, 426, 433 (note regarding Dr. Rosca’s first visit). The ALJ 2 referred to the evaluations as “Klass’ assessment.” A.R. 30-31. 3 According to the evaluations, Plaintiff’s first examination was on March 23, 2015, 4 following a ten-day hospitalization “for grave disability/psychotic [symptoms] & paranoid 5 ideation & withholding food/[water].” A.R. 421, 425. His last examination was on May 4, 2020. 6 In response to a question about the frequency of visits, Klass and Dr. Rosca wrote, “2 to 10x per 7 month- with IOP med management & individual therapy.” A.R. 425. 8 Klass and Dr. Rosca opined that the onset of Plaintiff’s “severe symptoms” was in March 9 2015. Symptoms include depressed mood, anhedonia, hypersomnia, decreased energy, poor sleep, 10 guilt/shame, hopelessness, impair focus/concentration, suicidal ideation with recurrent thoughts of 11 death, paranoid ideation, avoidant behavior, hypervigilance, flashbacks, exaggerated startled 12 response, excessive worry and psychic numbing. A.R. 421. Plaintiff’s appearance was noted to 13 be clean and groomed with poor eye contact and slow speech, and Plaintiff “often seems internally 14 preoccupied.” A.R. 421. Plaintiff’s current mental status was pleasant, cooperative, generally 15 treatment compliant and receptive to support. Plaintiff described himself as despondent, self16 loathing, and burdensome, and “deems himself incapable of returning to work.” A.R. 422. 17 Klass and Dr. Rosca opined that Plaintiff “demonstrates impaired focus/concentration, at 18 times has difficulty staying on tasks and following through w/primary responsibilities.” A.R. 422; 19 424. They opined that Plaintiff is capable of maintaining hygiene but requires his wife’s support 20 with household and childcare responsibilities and shows poor judgment with his personal finances. 21 A.R. 423 . Klass and Dr. Rosca diagnosed Plaintiff with major depressive disorder, recurrent, 22 severe with psychotic features; PTSD; and OCPD, and concluded that Plaintiff “has not shown 23 any improvement within the past 5 years.” A.R. 425. According to Klass and Dr. Rosca, Plaintiff 24 is “unable to maintain work/career due to severe mood [symptoms] that impair overall 25 functioning.” A.R. 424. 26 The Short Form Evaluation for Mental Disorders lists the diagnoses of major depressive 27 disorder, recurrent, severe with psychotic features; PTSD; and OCPD. Klass and Dr. Rosca 1 426. They checked “fair” or “poor” for every category of functioning, including understanding, 2 remembering, and carrying out simple instructions and maintaining concentration, attention and 3 persistence. A.R. 429. 4 The ALJ summarized the evaluations and found Klass and Dr. Rosca’s opinions were not 5 persuasive. A.R. 30-31. The ALJ described the statement in their mental disorder questionnaire 6 form that Plaintiff had shown no improvement in five years but noted that Klass had not treated 7 Plaintiff since 2016 and had not seen him in five years. A.R. 30. The ALJ also noted that “[t]he 8 assessment appears to be based on the claimant’s subjective reports” and stated that Plaintiff’s 9 treating sources, including Klass, had “questioned his veracity and referred to his lying as 10 pathological.” A.R. 30. The ALJ also noted an inconsistency in the two evaluations regarding the 11 frequency of Plaintiff’s treatment/visits. The mental disorder questionnaire form stated that 12 Plaintiff received treatment “2 to 10x per month,” while the short form evaluation stated up to 13 three times per month. See A.R. 31, 425, 426. 14 Additionally, the ALJ stated that even though the evaluations diagnose Plaintiff with major 15 depressive disorder, recurrent, severe with psychotic features, “psychotic features were not 16 consistently reported in the treating notes.” A.R. 31. Further, the ALJ noted that mental status 17 examinations were “inconsistent with . . . Klass’s report of impaired memory, severely restricted 18 concentration, anxious mood, fearfulness, and rapid speech.” A.R. 31. 19 In reviewing the record as a whole, the court finds that substantial evidence supports the 20 ALJ’s determination that Klass and Dr. Rosca’s opinions were not persuasive. Plaintiff was 21 hospitalized for a serious psychotic episode in March 2015, during which time he believed that his 22 wife was poisoning him and refused to eat, drink, or take medications. See A.R. 297-372. He was 23 diagnosed with major depressive disorder, recurrent episode with psychotic features and 24 discharged on March 20, 2015. A.R. 295, 327. By July 2015 Plaintiff’s providers had updated his 25 diagnosis to major depressive disorder, recurrent episode, in partial remission, A.R. 289-90, and 26 the record does not contain any evidence of subsequent psychotic episodes. 27 It appears that Plaintiff began treatment with Klass in April 2015. The record contains 1 to document that Plaintiff had office visits with Klass several times in 2015 and 2016, but there 2 are no treatment notes or other documentation of these visits or phone calls in the record. See 3 A.R. 284 (listing office visits with Klass on 11/19/15, 1/12/16, 2/11/16, 4/12/16, 5/5/16). It 4 appears that his last contact with Klass for treatment was in May 2016. See A.R. 281 (note that 5 Plaintiff “has not been linked to the clinic since May, 2016”). Plaintiff next contacted Klass on 6 April 6, 2020 to ask about SSDI benefits. Klass documented the contact: “I think he is inquiring 7 about SSDI. I found a massive stack of paperwork in my inbox. I haven’t seen him since 2016.” 8 A.R. 453 . Despite the notation in Klass and Dr. Rosca’s evaluations that Plaintiff’s most recent 9 visit was on May 4, 2020, the record contains no documentation of treatment by Klass or Dr. 10 Rosca between 2016 and May 13, 2020, the date of the evaluations. As noted, Dr. Rosca first saw 11 Plaintiff on April 24, 2020, but there is no corresponding treatment note for that visit. See A.R. 12 433 (progress note by Dr. Rosca, “[i]nitially seen on 4/24/2020”), 464 (6/10/20 letter from Dr. 13 Rosca stating, “I have been [Plaintiff’s] provider since 4/24/2020.”). 14 This timeline supports the ALJ’s conclusion that Klass’s assessment of Plaintiff’s lack of 15 improvement in five years was not persuasive because she had not treated Plaintiff since May 16 2016. Moreover, Klass and Dr. Rosca completed their evaluations of Plaintiff on May 13, 2020. 17 Nothing in the record indicates that they had treated him between April 6, 2020, when he first 18 called to ask about SSDI, and the date of their May 13, 2020 evaluations, further undermining the 19 persuasiveness of their conclusions. This apparent lack of firsthand knowledge of Plaintiff’s 20 symptoms or mental health condition since May 2016 supports the ALJ’s observation that Klass 21 and Dr. Rosca relied on Plaintiff’s “subjective reports” even though treating sources had 22 “questioned his veracity.” A.R. 30. Specifically, Klass wrote in a June 2020 treatment note that 23 Plaintiff’s “lying seems to be pathological,” A.R. 447, and the mental disorder questionnaire form 24 repeatedly references Plaintiff’s own reports of his condition. It includes the following 25 statements: “Pt states, ‘my condition is long term & chronic.’ Feels that [symptoms] impair 26 overall function[ ]”; “describes himself as despondent . . .”; “reports perceptual thinking 27 disturbances”; and “Pt reports severe social impairment.” A.R. 421-24. Notably, the evaluations 1 providers’ own observations and experience treating Plaintiff, testing, or something else. 2 The ALJ also explained that the evaluations were not persuasive because “psychotic 3 features were not consistently reported in the treating notes” and that mental status examinations 4 were inconsistent with the evaluations’ observations of impaired memory, severely restricted 5 concentration, anxious mood, fearfulness, and rapid speech. A.R. 31. The record contains 6 treatment notes from ten counseling sessions and appointments with Klass and Dr. Rosca post7 dating the May 13, 2020 evaluations. A.R. 433, 444, 447, 453, 477, 497, 506, 509, 538, 568, 596. 8 They documented mental status examinations for seven of the ten visits, all of which were within 9 normal limits with no exceptions. See A.R. 445, 448, 478, 498, 507, 539, 569, 596. Further, none 10 of the treatment notes corresponding to visits with Klass or Dr. Rosca at any time, including visits 11 from 2015, document psychotic features. See A.R. 293 (Klass’s notes from two phone calls with 12 Plaintiff in April 2015). 13 The court concludes that the ALJ properly considered the lack of supportability and 14 consistency when assessing the persuasiveness of Klass and Dr. Rosca’s opinions, and that the 15 ALJ’s explanation was supported by substantial evidence. Woods, 32 F.4th at 792 . Accordingly, 16 the court finds no error with respect to those opinions. 17 b. Ide and Minohara 18 Plaintiff moved to Japan at some point in 2020. See A.R. 55, 446. Hiroyuki Ide, MD, one 19 of Plaintiff’s treating providers in Japan, wrote an opinion on May 7, 2021. A.R. 604-07. Dr. Ide 20 wrote that he had seen Plaintiff three times. A.R. 606. Dr. Ide described Plaintiff’s symptoms of 21 poor sleep, depressed mood, irritability, inability to concentrate, fatigue, guilt and self-blame, 22 challenges with “self-care and general hygiene,” and weight gain and noted that the symptoms 23 were consistent with major depressive disorder. A.R. 606. Dr. Ide diagnosed major depressive 24 disorder and wrote that Plaintiff “has a problem with concentration and accomplishing tasks,” 25 noting that “[t]he common tasks of taking the commuter train or going shopping for groceries can 26 be overwhelming.” He further noted, “[w]hile many Americans in Japan can readily get a job 27 teaching English classes for example, this or any other employment anywhere would be 1 Yutaka Minohara, MD, another treating provider in Japan, wrote an opinion on May 14, 2 2021. A.R. 608-08. Dr. Minohara wrote that he first met with Plaintiff on November 10, 2020 3 and that from November 2020 to March 2021, he met with Plaintiff twice per month “to monitor 4 his prescription of 10mg Lexipro 1x and 2.5 mg Olanzapine 2.5mg to help alleviate symptoms of 5 depression and anxiety,” and “also conducted talk therapy with” Plaintiff. A.R. 609. Dr. 6 Minohara then referred Plaintiff to Dr. Ide. A.R. 609. Dr. Minohara diagnosed Plaintiff with 7 major depressive disorder. He opined that Plaintiff’s “depression makes it difficult for him to 8 accomplish the basics of day-to-day living including dressing, hygiene and nutrition,” and that his 9 depression and anxiety make it “extremely difficult” to “concentrate and focus on goal-oriented 10 tasks such as shopping or commuting.” A.R. 609. He also noted that Plaintiff is “cooperative 11 with his treatment plan.” A.R. 609. 12 The ALJ summarized these opinions and wrote that they “are not supported by the mental 13 status examinations as discussed in this decision”; “are inconsistent with the multiple treating 14 source statements who treated the claimant over time”; and “neither doctor provided any treating 15 records or mental status examination to explain the claimant’s current deterioration.” A.R. 31-32. 16 The ALJ also found that Plaintiff’s ability to “help his children with homework, drive a car, go to 17 the beach and watch TV with little apparent problem” contradicted the opinions that Plaintiff 18 “would have extreme difficulty concentrating and focusing on goal-oriented tasks such as 19 shopping or commuting.” A.R. 32. The ALJ further noted that “[t]he overall treatment records 20 indicate that the claimant’s medication has helped the claimant in terms of sleep and depressive 21 symptoms,” citing the medical records. A.R. 32 (citing Exs. 4F, 5F). 22 Substantial evidence supports the ALJ’s determination that Dr. Ide and Dr. Minohara’s 23 opinions were not persuasive. The two most important factors in determining the persuasiveness 24 of medical opinions are consistency and supportability. Woods, 32 F.4th at 791 . As to 25 supportability, the record does not contain any treatment notes from either provider; their opinions 26 are not supported by any findings. The ALJ also noted that the opinions were not supported by the 27 mental status examinations. As discussed above, the mental status examinations in the record 1 As to consistency, the ALJ wrote that the opinions were “inconsistent with the multiple 2 treating source statements who treated the claimant over time.” A.R. 32. Plaintiff disputes this, 3 arguing that Klass and Dr. Rosca are the treating sources “who treated [Plaintiff] over time.” He 4 contends that Dr. Ide and Dr. Minohara’s opinions were consistent with Klass and Rosca’s 5 opinions. Mot. 14. Dr. Ide’s opinion that “any . . . employment anywhere would be impossible 6 for him right now with this diagnosis” and Dr. Minohara’s opinion that Plaintiff’s depression 7 “makes it difficult to accomplish the basics of day-to-day living” and problems with concentration 8 and focus are generally consistent with Klass and Dr. Rosca’s opinion that Plaintiff is “unable to 9 maintain work/career due to severe mood [symptoms] that impair [his] overall functionality.” See 10 A.R. 424 . Nonetheless, as discussed above, the ALJ found Klass and Dr. Rosca’s opinions were 11 not persuasive in part because they were inconsistent with Plaintiff’s normal mental status 12 examinations. Any error in this portion of the opinion was harmless because Dr. Ide and Dr. 13 Minohara’s opinions about Plaintiff’s limitations were inconsistent with Plaintiff’s consistently 14 normal mental status examinations. See Alaska Dep’t of Envtl. Conserv. v. EPA, 540 U.S. 461 , 15 497 (2004) (an error is harmless if it is “inconsequential to the ultimate nondisability 16 determination” or “if the agency’s path may reasonably be discerned,” even if the agency 17 “explains its decision with less than ideal clarity” (internal quotation marks omitted)). 18 The ALJ also found that Dr. Minohara’s opinion about Plaintiff’s extreme difficulty in 19 “concentrat[ing] and focus[ing] on goal oriented tasks such as shopping or commuting . . . 20 because of the depression and anxiety” was inconsistent with his ability to help with homework, 21 drive a car, go to the beach, and watch TV “with little apparent problem.” A.R. 32. Plaintiff takes 22 issue with this, arguing that Plaintiff could only do these activities “with extensive help or 23 encouragement from [his] wife,” Mot. 14, but the record does not support this claim. In the 24 Function Report—Adult that Plaintiff completed on March 29, 2020, Plaintiff described “the kinds 25 of things you do with others” as “[e]ating together, homework, taking drives, watching movies at 26 home” on a daily basis without qualification. A.R. 202. He also wrote that he goes outside “once 27 a day on [average],” either by walking, driving, or riding in a car, can go out alone, and that he 1 Finally, the ALJ observed that “[t]he overall treatment records indicate that the claimant’s 2 medication has helped the claimant in terms of sleep and depressive symptoms.” The record 3 supports this observation. See, e.g., A.R. 433 (5/15/20 progress note re: medications helping him 4 sleep with no worsening in symptoms); 444 (6/9/20 progress note re: improved sleep with no 5 worsening in symptoms, “[m]aybe slight improvement in mood with Prozac, feels more 6 realistic”); 596 (10/22/20 progress note re: “doing ok, mood and sleep is ok”). 7 The court finds that the ALJ properly considered the lack of supportability and consistency 8 when assessing the persuasiveness of Dr. Ide and Dr. Minohara’s opinions, and that the ALJ’s 9 explanation of the same was supported by substantial evidence. Woods, 32 F.4th at 792 . 10 Accordingly, the court finds no error with respect to those opinions. 11 B. The ALJ’s Credibility Determination 12 1. Legal Standard 13 In general, credibility determinations are the province of the ALJ. “It is the ALJ’s role to 14 resolve evidentiary conflicts. If there is more than one rational interpretation of the evidence, the 15 ALJ’s conclusion must be upheld.” Allen v. Sec’y of Health & Human Servs., 726 F.2d 1470 , 16 1473 (9th Cir. 1984) (citations omitted). An ALJ is not “required to believe every allegation of 17 disabling pain” or other nonexertional impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th 18 Cir.1989) (citing 42 U.S.C. § 423 (d)(5)(A)). However, if an ALJ discredits a claimant’s 19 subjective symptom testimony, the ALJ must articulate specific reasons for doing so. Greger v. 20 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). In evaluating a claimant’s credibility, the ALJ 21 cannot rely on general findings, but “must specifically identify what testimony is credible and 22 what evidence undermines the claimant’s complaints.” Id. at 972 (quotations omitted); see also 23 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (stating that an ALJ must articulate 24 reasons that are “sufficiently specific to permit the court to conclude that the ALJ did not 25 arbitrarily discredit claimant’s testimony”). The ALJ may consider “ordinary techniques of 26 credibility evaluation,” including the claimant’s reputation for truthfulness and inconsistencies in 27 testimony, and may also consider a claimant’s daily activities, and “unexplained or inadequately 1 Chater, 80 F.3d 1273 , 1284 (9th Cir. 1996). 2 The determination of whether or not to accept a claimant’s testimony regarding subjective 3 symptoms requires a two-step analysis. 20 C.F.R. § 404.1529 ; Smolen, 80 F.3d at 1281 (citations 4 omitted). First, the ALJ must determine whether or not there is a medically determinable 5 impairment that reasonably could be expected to cause the claimant’s symptoms. 20 C.F.R. § 6 404.1529(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces medical evidence of an 7 underlying impairment, the ALJ may not discredit the claimant’s testimony as to the severity of 8 symptoms “based solely on a lack of objective medical evidence to fully corroborate the alleged 9 severity of” the symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc) 10 (citation omitted). Absent affirmative evidence that the claimant is malingering, the ALJ must 11 provide “specific, clear and convincing” reasons for rejecting the claimant’s testimony. Vasquez 12 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The Ninth Circuit has reaffirmed the “specific, clear 13 and convincing” standard applicable to review of an ALJ’s decision to reject a claimant’s 14 testimony. See Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014). 15 2. Analysis 16 The ALJ found that Plaintiff’s “medically determinable impairment could reasonably be 17 expected to cause the alleged symptoms; however, [his] statements concerning the intensity, 18 persistence and limiting effects of these symptoms are not entirely consistent with the medical 19 evidence and other evidence in the record for the reasons explained in this decision.” A.R. 26. 20 The ALJ provided two general reasons for discounting Plaintiff’s testimony: 1) that his 21 “statements about the intensity, persistence, and limiting effects of his symptoms . . . are 22 inconsistent because as discussed in this decision the claimant has a gap in medical treatment and 23 his allegations are not supported by his treating sources mental status examinations, A.R. 26, 29; 24 and 2) “there are general inconsistencies in [Plaintiff’s] allegations of disability,” discussing 25 activities Plaintiff described in his Function Report. A.R. 28-29. 26 As to the first reason, the ALJ discussed Plaintiff’s treatment history at length. A.R. 2627 29. In particular, the ALJ noted that Plaintiff was hospitalized in March 2015 for a psychotic 1 features. A.R. 294-95. His providers deemed his condition to be in partial remission a few 2 months later, A.R. 289-90, and his mental status examinations were normal with “[n]o psychosis.” 3 A.R. 287 , 289, 290. Plaintiff was treated by Klass in 2015 and 2016 but last saw her May 2016. 4 In November 2016, Plaintiff contacted Kaiser requesting “an urgent appointment to obtain a letter 5 excusing him from an upcoming deposition hearing on 11/17/16.” A.R. 281. It appears that he 6 did not seek mental health treatment again until March 2020, when he contacted Kaiser for 7 treatment for depression and asked Klass about SSDI. A.R. 453, 454. Once he resumed 8 treatment, his providers documented that he showed good response to therapy and medication. 9 See, e.g., A.R. 433 (5/15/20 progress note, “doing ok,” “[e]asier to fall to sleep . . . [l]ess anxious 10 when wakes up in the middle of the night. No worsening in sxs”); 444 (6/9/20 progress note, 11 “ok,” “[s]leep is better . . . slight improvement in mood with Prozac”); 478 (6/29/20 progress note, 12 “[o]verall status is better managed . . . [t]hinking is less intrusive . . . [n]otes improved sleep.”); 13 538 (9/4/20 progress note, “pt seemed to have more insight into his illness”). Further, as discussed 14 above, once Plaintiff returned to treatment after a several-year break, his mental status 15 examinations were consistently normal. See A.R. 29 (discussing mental status examinations). 16 Plaintiff argues that the ALJ should not use his lack of treatment as a reason to discount his 17 credibility, Mot. 17, but there is no evidence in the record supporting that Plaintiff was unaware of 18 his need for treatment or unable to access it. 19 The ALJ also discussed Plaintiff’s activities and concluded that they were inconsistent 20 with his claims about his limitations. A.R. 28-29. As the ALJ noted, Plaintiff reported that he 21 could eat meals with his family; help his children with homework; watch moves; and take drives, 22 all of which the ALJ found “require the ability to concentrate and maintain attention.” A.R. 29. 23 The ALJ also noted that Plaintiff described going to the beach, school, and the playground prior to 24 the COVID-19 pandemic, which undermines Plaintiff’s claim that “his attention is limited to 15 25 minute increments and he has difficulty leaving his home.” A.R. 29. Of course, “[w]hile a 26 claimant need not ‘vegetate in a dark room’ in order to be eligible for benefits,” the Ninth Circuit 27 has explained that everyday activities “may be grounds for discrediting the claimant’s testimony to 1 F.3d 1104, 1112-13 (9th Cir. 2012) (internal citations and quotation marks omitted). 2 Finally, the ALJ considered her own observations of Plaintiff during the hearing. The ALJ 3 noted that Plaintiff “was able to answer questions and participate in the hearing for more than 40 4 minutes,” and that he participated from Japan, where it was about 2:00 a.m. A.R. 29. The ALJ 5 found his presentation was inconsistent with his allegations of “severely limited concentration and 6 focus.” A.R. 29. The ALJ reasonably relied on her own observations in evaluating Plaintiff’s 7 credibility. 8 Ultimately, “[i]f the ALJ’s credibility finding is supported by substantial evidence in the 9 record, [courts] may not engage in second-guessing,” Thomas v. Barnhart, 278 F.3d 947, 959 (9th 10 Cir. 2002), and “the ‘clear and convincing’ standard requires an ALJ to show his work.” Smartt v. 11 Kijakazi, 53 F.4th 489 , 499 (9th Cir. 2022). The court finds that the ALJ did so here by 12 identifying “specific, clear, and convincing reasons supporting a finding that [Plaintiff’s] 13 limitations were not as severe as [he] claimed.” Id. (quotation marks and citation omitted). The 14 court finds that the ALJ did not err with respect to the credibility determination. 15 C. The ALJ’s Consideration of Lay Witness Testimony 16 1. Legal Standard 17 Testimony provided by a lay witness as to a claimant’s symptoms or how an impairment 18 affects the claimant’s ability to work is competent evidence to be taken into consideration by an 19 ALJ unless he or she expressly discounts such evidence and provides “reasons germane to each 20 witness” for doing so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Molina v. Astrue, 674 21 F.3d 1104, 1114 (9th Cir. 2012), superseded on other grounds by regulation. An ALJ need not 22 “discuss every witness’s testimony on a individualized, witness-by-witness basis. Rather, if the 23 ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to 24 those reasons when rejecting similar testimony by a different witness.” Molina, 674 F.3d at 1114. 25 2. Analysis 26 Plaintiff argues that the ALJ improperly rejected the lay witness testimony of his wife, 27 Miyuki Sato, who completed a Function Report—Adult—Third Party on April 6, 2020. See A.R. 1 discounting it. The Commissioner argues that the court should not apply the “germane reasons” 2 standard based on the 2017 changes to the Social Security regulations. Opp’n 12. However, the 3 Ninth Circuit has expressly declined to reach this issue, see Weitman v. Kijakazi, No. 21-35748, — 4 — 2022 WL 17175060 , at *2 n.4 (9th Cir. Nov. 23, 2022), and has applied the germane reasons 5 standard as recently as this month. See, e.g., Eichenberger v. Kijakazi, No. 22-35937, 2023 WL 6 5928483, at *2 (9th Cir. Sept. 12, 2023). 7 Nonetheless, the court concludes that any error with respect to the statement was harmless. 8 The Ninth Circuit has held that an ALJ does not “commit prejudicial error by discounting” lay 9 witness testimony that does “not describe any limitations not already described by the claimant,” 10 because “[t]he ALJ’s well-supported reasons for rejecting [the claimant’s] testimony apply equally 11 well to the lay witness testimony.” See, e.g., Peebles v. Kijakazi, No. 22-35841, 2023 WL 12 5567156, at *2 (9th Cir. Aug. 29, 2023) (quoting Molina v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 13 2012) (“[w]here lay witness testimony does not describe any limitations not already described by 14 the claimant, and the ALJ’s well-supported reasons for rejecting the claimant’s testimony apply 15 equally well to the lay witness testimony, it would be inconsistent with our prior harmless error 16 precedent to deem the ALJ’s failure to discuss the lay witness testimony to be prejudicial per 17 se.”)). 18 In this case, Ms. Sato described Plaintiff’s “challenges in focusing, socializing and self 19 care.” A.R. 206. Plaintiff dresses himself, showers, and shaves, but Ms. Sato wrote that she has 20 to remind him to “shave, get a hair cut or trim his nails.” A.R. 207-08. She wrote that Plaintiff 21 does small chores around the house but that she has to remind him to do so, and that he goes 22 outside about once per day and walks, drives, or rides in a car. A.R. 208-09. She wrote that “he 23 can drive to run small errands,” and that she does the majority of shopping “but occasionally [she] 24 can ask him to get something at the store.” A.R. 209. According to Ms. Sato, Plaintiff “tends to 25 withdraw” and spend time alone and avoids social events. His condition affects his talking, 26 memory, completing tasks, concentration, following instructions, and getting along with others. 27 A.R. 210, 211 . These observations are consistent with the limitations Plaintiff described at the 1 himself, and need for reminders to complete tasks around the house, see A.R. 56-58, as well as the 2 limitations he described in the Function Report. See A.R. 198-205. In sum, Ms. Sato’s statement 3 “does not describe any limitations not already described by” Plaintiff, and the court has already 4 concluded that the ALJ did not err in assessing his credibility. Accordingly, the court concludes 5 that any error with respect to Ms. Sato’s statement was harmless. See Molina, 674 F.3d at 1122 . 6 D. The ALJ’s Step Five Determination 7 Finally, Plaintiff argues that the ALJ’s determination at step five that he could perform the 8 occupations of assembler, production; office clerk paster; clerk/addresser; and packer was not 9 supported by substantial evidence. According to Plaintiff, these jobs “are improper for someone 10 with [Plaintiff’s] limitations as found by the ALJ,” because all four jobs have GED reasoning 11 levels of two. Mot. 21. GED level two requires that an individual “[a]pply commonsense 12 understanding to carry out detailed but uninvolved written or oral instructions. Deal with 13 problems involving a few concrete variables in or from standardized situations.” Rounds v. 14 Comm'r Soc. Sec. Admin., 807 F.3d 996, 1002-03 (9th Cir. 2015). Plaintiff argues that these jobs 15 require the ability to “carry out detailed” instructions, but that the ALJ’s RFC indicated that 16 Plaintiff is “precluded from performing complex and detailed tasks.” Mot. 21 (quoting A.R. 25). 17 Plaintiff’s position is without merit. Although the ALJ precluded Plaintiff “from 18 performing complex and detailed tasks,” she concluded that Plaintiff “remains capable of 19 performing short, simple, repetitive tasks.” A.R. 25. The Ninth Circuit has held in unpublished 20 decisions that an RFC limitation to “simple tasks” is consistent with reasoning level two. Abrew 21 v. Astrue, 303 F. App’x 567, 570 (9th Cir. 2008); Hernandez v. Berryhill, 707 F. App’x 456 , 458 22 (9th Cir. 2017). 23 Finally, Plaintiff argues that the ALJ erred at step five because the hypothetical she 24 provided to the VE did not contain Plaintiff’s “credible allegations,” the limitations Ms. Sato 25 described, and the limitations assessed by Plaintiff’s treating and examining providers. Mot. 23. 26 This argument is duplicative of Plaintiff’s other arguments, which the court has already rejected. 27 The court concludes that the ALJ’s step five finding was supported by substantial evidence. V. CONCLUSION For the foregoing reasons, the court denies Plaintiff's motion and grants the — 2 — Commissioner’s cross motion. ~qED DISTR] CP 3 ab oC © □□ IT ISSO ORDERED Ky ED □□ Dated: September 25, 2023 5 i □ 6 / >, [7 7 ZN \ □□□ Rony RY NP cd = □□ 8 > mn) □□ Cy — 9 — vy OS DISTRICS — 10 — — 11 — — 12 — — 15 — — 16 — Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —