(SS) Sedoris v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALICIA SEDORIS, No. 2:21-cv-00767 CKD (SS) 12 Plaintiff, 13 v. ORDER & FINDINGS AND RECOMMENDATIONS 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying an application for Disability Income Benefits (“DIB”) under Title II 20 of the Social Security Act (“Act”). For the reasons discussed below, the undersigned will 21 recommend that plaintiff’s motion for summary judgment be denied and the Commissioner’s 22 cross-motion for summary judgment be granted. 23 BACKGROUND 24 Plaintiff, born in 1983, applied on September 17, 2018 for DIB, alleging disability 25 beginning November 19, 2017. Administrative Transcript (“AT”) 15, 33. Plaintiff alleged she 26 was unable to work due to bipolar disorder, post-traumatic stress disorder (PTSD), depression, 27 anxiety, fibromyalgia, and irritable bowel syndrome. AT 253. In a decision dated September 9, 28 //// 1 2020, the ALJ determined that plaintiff was not disabled.1 AT 15-34. The ALJ made the 2 following findings (citations to 20 C.F.R. omitted): 3 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2021. 4 2. The claimant has not engaged in substantial gainful activity since 5 November 19, 2017, the alleged onset date. 6 3. The claimant has the following severe impairments: Dextroscoliosis of the Lumbar Spine; Plantar Calcaneal 7 Enthesopathy; Mild Osteoarthritis of the Right Ankle; Obesity; Depression; Anxiety; Bipolar Disorder; Borderline Personality 8 Disorder; and Posttraumatic Stress Disorder (PTSD). 9 4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed 10 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the 11 Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to 12 disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an “inability to engage in any substantial gainful activity” due to “a medically 13 determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. 14 See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation: 15 Step one: Is the claimant engaging in substantial gainful 16 activity? If so, the claimant is found not disabled. If not, proceed to step two. 17 Step two: Does the claimant have a “severe” impairment? If 18 so, proceed to step three. If not, then a finding of not disabled is appropriate. 19 Step three: Does the claimant’s impairment or combination 20 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined 21 disabled. If not, proceed to step four. 22 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 23 Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 26 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the 28 burden if the sequential evaluation process proceeds to step five. Id. 1 impairments in 20 CFR Part 404, Subpart P, Appendix 1. 2 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform 3 light work except: The claimant can frequently climb ramps and stairs, but can never climb ladders, ropes or scaffolds; she can 4 frequently balance, stoop, kneel and crouch, and can occasionally crawl; she can tolerate no hazards such as machinery and unprotected 5 heights. Due to side-effects of medications and mental impairments, she can understand, remember and carry out simple and routine 6 instructions and tasks; she can have occasional incidental public contact, but cannot work one-on-one with the public; she can have 7 occasional direct coworker interaction and no group tasks, but has no limit on incidental coworker contact; she can have frequent 8 supervisor contact, and can perform no work on a moving conveyor belt. 9 6. The claimant is unable to perform any past relevant work.2 10 7. The claimant was born on XX/XX/1983 and was 34 years old, 11 which is defined as a younger individual age 18-49 on the date the application was filed. 12 8. The claimant has at least a high-school education. 13 9. Transferability of job skills is not material to the determination fo 14 disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is ‘not disabled’ 15 whether or not the claimant has transferable job skills. 16 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant 17 numbers in the national economy that the claimant can perform.3 18 11. The claimant has not been under a disability, as defined in the Social Security Act, from November 19, 2017 through the date of 19 this decision. 20 AT 17-34. 21 ISSUES PRESENTED 22 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 23 disabled: (1) the ALJ erred in rejecting the medical opinions of the treating PA-C (certified 24 physician’s assistant) and the consultative psychologist; (2) the ALJ erred in discrediting 25 plaintiff’s subjective symptom testimony; and (3) the ALJ erred by failing to evaluate and 26 2 Previously, plaintiff worked as a cook and sales clerk. AT 32-33. 27 3 Relying on vocation expert (VE) testimony, the ALJ found that plaintiff could perform 28 occupations such as housekeeping cleaner, mail clerk, and laundry worker. AT 33-34. 1 consider the testimony of a third-party witness. 2 LEGAL STANDARDS 3 The court reviews the Commissioner’s decision to determine whether (1) it is based on 4 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 5 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 6 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 7 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 8 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 9 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 10 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 11 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 12 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 13 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 14 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 15 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 16 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 17 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 18 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 19 administrative findings, or if there is conflicting evidence supporting a finding of either disability 20 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 21 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 22 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 23 ANALYSIS 24 A. Medical Opinions 25 Plaintiff asserts that the ALJ erroneously discounted the medical opinions of certified 26 physician’s assistant Victor Libbey and consultative psychologist Dr. Lea Tate, both of which 27 //// 28 //// 1 bear on the mental RFC.4 Because plaintiff filed her disability application after March 27, 2017, 2 the revised agency rules for evaluating medical opinions, set forth below, apply. 3 “The ALJ is responsible for translating and incorporating clinical findings into a succinct 4 RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In doing so, 5 the ALJ must articulate a “substantive basis” for rejecting a medical opinion or crediting one 6 medical opinion over another. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); see also 7 Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (“an ALJ cannot in its decision totally 8 ignore a treating doctor and his or her notes, without even mentioning them”). 9 The Ninth Circuit previously has required that, in order to reject an uncontradicted 10 opinion of a treating or examining physician, the ALJ must provide “clear and convincing reasons 11 that are supported by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 12 2017); Ghanim v. Colvin, 763 F.3d 1154, 1160-61 (9th Cir. 2014). Alternatively, “[i]f a treating 13 or examining doctor's opinion is contradicted by another doctor’s opinion, an ALJ may only 14 reject it by providing specific and legitimate reasons that are supported by substantial evidence.” 15 Trevizo, 871 F.3d at 675. 16 However, for disability applications filed on or after March 27, 2017, the Commissioner 17 revised the rules for the evaluation of medical evidence at the administrative level. See Revisions 18 to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg 5844-01 (Jan. 18, 2017). 19 Because Plaintiff filed her SSI application on September 17, 2018, it is subject to the new rules 20 for the evaluation of medical evidence. 21 The revised rules provide that adjudicators for the Social Security Administration, 22 including ALJs, evaluate medical opinions according to the following factors: supportability; 23 consistency; relationship with the claimant; specialization; and other factors such as the medical 24 source’s familiarity with other evidence in the record or with disability program requirements. 20 25 C.F.R. § 416.920c(c)(1)-(5). The most important of these factors are supportability and 26 consistency. 20 C.F.R. § 416.920c(b)(2). Supportability is the extent to which an opinion or 27 28 4 Plaintiff notes that her “physical capacity is not being argued here.” (ECF No. 13 at 11.) 1 finding is supported by relevant objective medical evidence and the medical source’s supporting 2 explanations. 20 C.F.R. § 416.920c(c)(1). Consistency is the extent to which an opinion or 3 finding is consistent with evidence from other medical sources and non-medical sources, 4 including the claimants themselves. 20 C.F.R. §§ 416.920c(c)(2), 416.902(j)(1). The ALJ will 5 articulate how she considered the most important factors of supportability and consistency, but an 6 explanation for the remaining factors is not required except when deciding among differing yet 7 equally persuasive opinions or findings on the same issue. 20 C.F.R. § 416.920c(b). When a 8 single medical source provides multiple opinions and findings, the ALJ must articulate how they 9 were considered in a single analysis. 20 C.F.R. § 416.920c(b)(1). 10 1. PA-C Libbey 11 PA-C Libbey was a psychiatric specialist who first examined plaintiff in August 2017 and 12 managed her psychotropic medications throughout the period of alleged disability. AT 25, 631. 13 In December 2017, around the time of the alleged onset date, he filled out a short-form evaluation 14 for mental disorders, diagnosing her with PTSD. AT 631. On the examination portion of the 15 form, Mr. Libbey indicated that plaintiff’s memory was impaired, her mood was anxious and 16 depressed, her affect was labile, and she had been drug-free for approximately 180 days. AT 632- 17 633. He further indicated that plaintiff had no hallucinations, illusions, delusions, or 18 preoccupations; her thought process was goal-directed; and that her judgment was mildly 19 impaired, among other findings. AT 632-633. 20 On the evaluation portion of the form, which required rating the patient’s mental functions 21 in a series of checkboxes, Mr. Libbey indicated that plaintiff’s ability to understand, remember 22 and carry out complex instructions was “poor.” He marked between the boxes for “fair” and 23 “poor” when assessing plaintiff’s ability to follow a schedule, maintain regular attendance, 24 complete a normal workday and workweek without interruptions from psychological symptoms, 25 interact appropriately with the public, and respond appropriately to changes in the work setting— 26 indicating that these abilities were on the borderline between “fair” and “poor.” AT 634. Mr. 27 Libbey further indicated that plaintiff had “fair” abilities to understand, remember, and carry out 28 simple instructions; maintain concentration, attention, and persistence; and interact with 1 supervisors and coworkers. AT 634. The form defined the term “fair” to mean that “[t]he 2 evidence supports the conclusion that the individual’s capacity to perform the activity is impaired, 3 but the degree/extent of the impairment needs to be further described.” AT 634. 4 The ALJ found this evaluation “unpersuasive,” explaining as follows: 5 [T]o the extent Mr. Libbey intended to convey that the claimant’s impairments do not wholly preclude her from [various work-related 6 mental functions], his opinion seems reasonably consistent with the relevant medical evidence, including his own observations noted [in 7 the December 2017 exam]. As discussed above, with regard to her mental impairments, records show that the claimant has experienced 8 significant improvement with treatment during the relevant period since her alleged disability onset date, and show that her medications 9 have provided fairly good control of her symptoms. Additionally, . . . when he evaluated her in December 2017, Mr. Libbey reported 10 observing the claimant to seem cooperative and only “slightly distracted,” with only mildly impaired judgment and memory, and 11 average intelligence, while treatment records show that he has generally observed her to appear well groomed, with good eye 12 contact, normal speech, and good insight and judgment. However, Mr. Libbey’s opinion is of relatively scant usefulness in formulating 13 the detailed function-by-function assessment required to ascertain [disability under the Act] due to his failure to more precisely quantify 14 the extent to which the claimant’s impairments limit her ability to perform specific mental work activities, [as] the term “fair,” as used 15 in his assessment, was defined broadly to mean that the claimant’s ability to perform the activity is impaired to a degree which is more 16 than significant but less than completely preclusive. 17 AT 31 (emphasis added). 18 In summary, the ALJ reasons as follows: While it is not clear what Mr. Libbey’s 19 checkmarks of “fair” and “between poor and fair” mean as far as plaintiff’s ability to perform 20 specific mental functions, his opinion is consistent with the medical evidence insofar as suggests 21 that plaintiff can perform some level of mental work. Insofar as the opinion suggests that plaintiff 22 is precluded from all work due to mental symptoms, it is contradicted by evidence of plaintiff’s 23 significant improvement between the September 2017 alleged onset date and the December 2017 24 opinion, and by Mr. Libbey’s own treatment records during that time. 25 Earlier in the decision, the ALJ cites evidence of plaintiff’s improvement in mental 26 symptoms between September and December 2017: 27 [T]hroughout the relevant period since her alleged disability onset date, records show that the claimant has experienced significant 28 improvement with treatment, and show that her medications have 1 provided fairly good control of her symptoms. For example, during a visit with Mr. Libbey in early November 2017, records show the 2 claimant reported experiencing some episodes of anger, but reported feeling more stable and better overall, and reported that she was 3 sleeping and eating better, further reporting that her nightmares had resolved completely with [medication]. Similarly, . . . later that 4 month, records show that the claimant reported that she was feeling well, and show that she was observed to seem more euthymic and 5 less tearful. . . . [L]ater that same month, records show that the claimant reported that she was starting to see improvement in her 6 responses to anger, and reported that she was feeling happier and communicating more effectively with her family. Likewise, . . . in 7 November and December, records show the claimant reported improved mood stability.. . . Additionally . . . in December 2017, 8 records show the claimant reported having some difficulty with her depression around the holidays, but reported that she was doing well 9 overall[.] 10 AT 26 (record citations omitted). 11 The ALJ also noted that, in his December 2017 examination, Mr. Libbey observed 12 plaintiff to be “cooperative, well-groomed and only slightly distracted, with average intelligence, 13 goal-directed thought processes, and only mildly impaired judgment and memory.” AT 28, citing 14 AT 632-633. 15 The ALJ found Mr. Libbey’s opinion supported by the medical evidence, and consistent 16 with Mr. Libbey’s own observations, to the extent the checkbox answers indicated that plaintiff 17 was capable of simple and limited mental functioning in a work setting. By incorporating 18 detailed discussions of the evidence in other portions of the opinion, the ALJ articulated how s/he 19 considered the factors of supportability and consistency, and cited substantial evidence in support 20 of these conclusions. While plaintiff argues that the mental health record shows plaintiff 21 experiencing ups and downs and increasing her medication to address recurrent psychological 22 symptoms, a perfect linear progression is not required to show overall improvement. The ALJ’s 23 observation that plaintiff’s mental symptoms generally improved, in response to therapy and 24 medication, is sufficiently supported by the record. 25 2. Dr. Tate 26 Consultative psychologist Dr. Tate conducted a telehealth interview and evaluation of 27 plaintiff on July 6, 2020. AT 1334-1337. She noted that plaintiff was “pleasant and cooperative” 28 throughout the interview, but “seemed depressed,” with a depressed mood and affect. AT 1336. 1 Plaintiff’s attention, concentration, memory, judgment and insight were “fair.” AT 1336. At the 2 conclusion of her report, Dr. Tate opined on plaintiff’s mental functional limitations. AT 1337. 3 The ALJ summarized Dr. Tate’s conclusions: “Following her evaluation of the claimant, 4 Dr. Tate opined that the claimant’s ability to understand, remember and complete simple 5 commands is unimpaired, but opined that her ability to understand, remember and complete 6 complex instructions is ‘moderately’ impaired, as are her ability to maintain workplace, 7 attendance, interact appropriately with supervisors, coworkers and peers, and maintain persistence 8 and pace.” AT 31, citing AT 1337. 9 The ALJ found Dr. Tate’s overall opinion “unpersuasive,” though she found Dr. Tate’s 10 opinion that plaintiff could follow simple instructions “eminently reasonable” in light of the 11 medical evidence and plaintiff’s daily activities. AT 32. However, the ALJ wrote, 12 Dr. Tate’s opinion concerning the claimant’s ability to understand, remember and complete complex instructions, interact appropriately 13 with others, and maintain persistence and pace seems someone overly restrictive in light of her own observations. Specifically, . . . 14 while she reported observing the claimant to appear depressed, Dr. Tate reported observing her to seem pleasant and cooperative, and 15 observed her to exhibit fair attention and concentration, with fair insight and judgment, and fair memory. . . . Dr. Tate’s opinion 16 concerning the claimant’s ability to perform other mental work activities is of fairly limited usefulness due to her failure to define 17 the term ‘moderately’ or otherwise more precisely quantify the extent to which the claimant’s ability to perform those activities is limited. 18 Additionally, with regard to the claimant’s ability to maintain workplace attendance, her opinion seems overly restrictive in light 19 of the relevant medical evidence concerning the claimant’s mental impairments . . . , which, as discussed, tend to show that the 20 claimant’s symptoms have been fairly well controlled throughout the relevant period at issue. 21 22 AT 32 (emphasis added). 23 As with Mr. Libbey’s opinion, the ALJ rejected portions of this opinion as “overly 24 restrictive” due to inconsistencies with medical evidence showing plaintiff’s overall mental 25 improvement on medication. In an earlier portion of the decision, the ALJ set forth a detailed 26 summary of the mental health evidence between September 2017 and July 2020 (excerpted in part 27 above). AT 25-28. The ALJ noted that, while plaintiff had prior hospitalizations for suicide 28 attempts as late as September 2015, her treatment records after September 2017 on “document 1 few, if any, complaints” of suicidal ideation, and she required no inpatient psychiatric treatment 2 over the next three years. AT 25. The ALJ summarized notes from numerous visits with Mr. 3 Libbey and sessions with her therapist, Sara Rotella, documenting plaintiff’s frequent statements 4 that she was making progress in managing her anger, anxiety, and depressive symptoms. AT 25- 5 27. In 2018, for example, plaintiff reported on separate occasions that she was doing well overall 6 and making good progress with her functioning, experiencing improvement with her new 7 medication, and feeling happier after her medication was adjusted, with Ms. Rotella observing a 8 noticeably improved mood. In February 2019, plaintiff complained of anxiety and low motivation 9 but reported that she was functioning well overall, and show that her score on a PHQ-9 screening 10 was only 4, consistent with minimal or mild depression. 11 The ALJ also noted Dr. Tate’s own observation that, while plaintiff appeared depressed at 12 her July 2020 exam, her attention, concentration, memory, judgment and insight were “fair.” 13 Much as with Mr. Libbey’s opinion, the ALJ concluded that Dr. Tate’s opinion was 14 inconsistent with the medical evidence insofar as it indicated that several of plaintiff’s mental 15 functions were “moderately impaired” and/or work preclusive. After a detailed review of the 16 mental health evidence, the ALJ found that plaintiff’s mental symptoms generally improved over 17 time in response to therapy and medication. 18 In formulating the RFC, the ALJ relied on the opinions of two state agency psychological 19 consultants, who opined that plaintiff was moderately limited in her ability to understand, 20 remember, and carry out detailed instructions, but could persist at tasks that could be learned in 21 one to three months, with limited contact with coworkers and the public. AT 29-30. The ALJ 22 found these opinions “reasonably consistent with the relevant medical evidence and evidence 23 concerning the claimant’s daily activities[.]” The undersigned finds no error in the ALJ’s 24 weighing of the medical opinion evidence. 25 B. Credibility 26 Plaintiff next claims that the ALJ erred in discounting plaintiff’s statements about her 27 mental symptoms, finding them “not as severe, persistent, or limiting as she has alleged.” AT 20, 28 25. 1 The ALJ determines whether a disability applicant is credible, and the court defers to the 2 ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g., 3 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an 4 explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990). “Without 5 affirmative evidence showing that the claimant is malingering, the Commissioner’s reasons for 6 rejecting the claimant’s testimony must be clear and convincing.” Morgan v. Commissioner of 7 Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); see also Lambert v. Saul, 980 F.3d 1266, 8 1277–78 (9th Cir. 2020). 9 In evaluating whether subjective complaints are credible, the ALJ should first consider 10 objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 11 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ 12 then may consider the nature of the symptoms alleged, including aggravating factors, medication, 13 treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the 14 applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent 15 testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a 16 prescribed course of treatment, and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d 17 1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406- 18 01; SSR 88-13. Work records, physician and third party testimony about nature, severity and 19 effect of symptoms, and inconsistencies between testimony and conduct also may be relevant. 20 Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek 21 treatment for an allegedly debilitating medical problem may be a valid consideration by the ALJ 22 in determining whether the alleged associated pain is not a significant nonexertional impairment. 23 See Flaten v. Secretary of HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, 24 on his or her own observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 25 1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177 n.6 26 (9th Cir. 1990). . 27 The ALJ summarized plaintiff’s testimony on her mental symptoms: 28 [She] testified that she has not been exercising due to her depression 1 and medications . . . [and that] her obesity has also exacerbated her depression, stating that she feels ‘down in the dumps,’ depressed and 2 anxious, and has been sleeping more. [The claimant testified that she has a history of cutting behaviors and hospitalization for suicide 3 attempts, most recently in 2015.] Additionally, due to her anxiety, the claimant testifies that she tries not to leave the house, though she 4 testified that she continues to leave the house about twice a week to go to the grocery store or take her children to doctor’s appointments. 5 The claimant further testified that when she has to leave the house to do something, she will feel anxious throughout the preceding day, 6 stating that she will have to take her anxiety medicine to calm down, and clear her schedule so that she can talk through it. 7 The claimant also testifies that she experiences drowsiness, stating 8 that she is uncertain whether this is caused by her depression or medications, and testified that she takes about three two-hours naps 9 during the day as a result. Additionally, despite her medications, the claimant testifies that she continues to experience tearfulness that 10 occurs for no apparent reason, as well as problems with anger. [Despite anger management classes, she] continues to experience a 11 lot of anger issues, stating that she gets frustrated and angry, causing her to ‘explode.’ In addition to the foregoing, the claimant testified 12 that her memory has been impacted by her PTSD, and testified that she tends to forget what she is doing and have difficulty staying on 13 task unless she has written instructions laid out in front of her. As a result, the claimant testified that she has to write down instructions 14 in order to complete tasks, which in turn impacts her ability to maintain pace. 15 16 AT 22 (record citations omitted). 17 In assessing credibility, as noted above, the ALJ set out a detailed summary of the mental 18 health evidence throughout the alleged period of disability, including examination findings and 19 medical/therapy notes documenting plaintiff’s statements to health providers. AT 25-28. The 20 ALJ summarized the longitudinal mental health record as follows: 21 [W]hile the claimant has been treated for multiple mental impairments, records show that [she] has experienced significant 22 improvement with treatment during the relevant period . . . and show that her medications have provided fairly good control of her 23 symptoms. Additionally, . . . records show that [therapist Sara Rotella] has fairly consistently observed the claimant to seem 24 cooperative, with clear speech, average eye contact, a normal appearance, logical thought processes, normal cognition, normal 25 insight and judgment, and average intelligence. Similarly, . . . records show that Mr. Libbey has generally observed her to appear 26 well groomed, with good eye contact, normal speech, and good insight and judgment, and show that Dr. Tate observed her to seem 27 pleasant and cooperative, with fair attention and concentration, fair insight, and fair memory. 28 1 AT 30. 2 “In sum,” the ALJ concluded, 3 with regard to her mental impairments, the relevant medical evidence of record tends to suggest that the claimant’s symptoms are not as 4 severe, persistent, or limiting as she has alleged. As discussed above, while the claimant has been treated for multiple mental impairments, 5 records show that the claimant has experienced significant improvement with treatment during the relevant period since her 6 alleged disability onset date, and show that her medications have provided fairly good control of her symptoms. 7 AT 28. 8 Additionally, the ALJ found that plaintiff’s reported daily activities undermined the 9 credibility of her testimony about debilitating anger, drowsiness, or other mental symptoms. 10 Records reflect that, during the relevant period, plaintiff droved, cared for three children, helped 11 them with schoolwork during the Covid-19 shutdown, cared for dogs, attended church, visited 12 family, ran errands, prepared meals, went to the gym, walked the kids to school, handled her own 13 finances, got along with authority figures, and did housework. AT 29-31, 273-286, 1335, 732. 14 “Despite her impairments,” the ALJ noted, “the claimant testified that she continues to babysit 15 [her] fiance’s young children, who the claimant said are currently 9, 20 and 14 years old[.]” AT 16 29. 17 [D]espite her impairments, the claimant reported that she continues to prepare simple meals, including frozen meals and sandwiches, and 18 continues to perform household chores, including dusting, mopping, sweeping and laundry. Despite her impairments and alleged 19 difficulties getting along with others, the claimant also reported that she continues to go grocery shopping and attend church, and reported 20 that she gets along well with authority figures. Additionally, treatment records show that the claimant has continued to attend 21 Narcotics Anonymous meetings, and show that she even began serving as the secretary for her [NA] meetings in 2018. . . . 22 [T]reatment records show that she was, prior to the Covid-19 pandemic, taking [the children] to and from school and preparing 23 meals for them, and show that the claimant has been helping her children complete their schoolwork at home since the pandemic 24 caused schools to close. 25 AT 29 (citations omitted). 26 By citing a detailed account of the objective medical evidence, along with daily activities, 27 ALJ used proper process and provided proper reasons, supported by substantial evidence, for 28 finding plaintiff’s statements about her allegedly debilitating mental symptoms less then fully 1 credible. Therefore, the court should defer to the ALJ’s discretion on this issue. 2 C. Lay Testimony 3 Lastly, plaintiff asserts that the ALJ erred by failing to evaluate and consider the 4 testimony of a third-party witness: plaintiff’s fiancé Misty Sleeper. 5 “[L]ay witness testimony as to a claimant’s symptoms or how an impairment affects 6 ability to work is competent evidence, and therefore cannot be disregarded without comment.” 7 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); see also Dodrill v. Shalala, 12 F.3d 915, 8 918-19 (9th Cir. 1993) (friends and family members in a position to observe a plaintiff's 9 symptoms and daily activities are competent to testify to condition). “If the ALJ wishes to 10 discount the testimony of the lay witnesses, he must give reasons that are germane to each 11 witness.” Dodrill, 12 F.3d at 919. 12 The ALJ reviewed Ms. Sleeper’s third-party function report, summarizing it as follows: 13 Ms. Sleeper provided statements concerning the claimant’s symptoms, limitations, and daily activities similar to those offered by 14 the claimant herself. For example, Ms. Sleeper reported, among other things, that the claimant is ‘unpredictable and hot tempered,’ 15 experiences frequent nightmares and tearfulness, needs reminders to take care of her personal grooming and hygiene, and has significant 16 difficulty concentrating, understanding and following instructions, and getting along with others. 17 18 AT 23 (emphasis added), citing AT 262-272. 19 “However,” the ALJ continued, “. . . the relevant medical evidence of record, discussed 20 and summarized below, provides only limited support for the claimant’s testimony and tends to 21 suggest that her symptoms are not as severe, persistent or limiting as has been alleged.” AT 23 22 (emphasis added). The emphasized phrase, preceded by the above summary of Ms. Sleeper’s 23 statement, appears to include allegations by both the plaintiff and Ms. Sleeper, as their statements 24 were similar in nature. 25 The ALJ was not required to explicitly discount Ms. Sleeper’s statements to the extent 26 they echoed plaintiff’s subjective complaints, which were found not fully credible for the reasons 27 set forth above. See Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009) (where ALJ provided 28 sufficient reasons for rejecting claimant’s own testimony, “it follows that the ALJ also gave 1 | germane reasons for rejecting” similar testimony of lay witness). The undersigned finds no 2 || reversible error with respect to lay witness testimony. 3 | CONCLUSION 4 For the reasons stated herein, IT IS HEREBY ORDERED THAT the Clerk of Court shall 5 || assign a district judge to this action. 6 IT IS HEREBY RECOMMENDED THAT: 7 1. Plaintiffs motion for summary judgment (ECF No. 13) be denied; 8 2. The Commissioner’s cross-motion for summary judgment (ECF No. 14) be granted; 9 | and 10 3. Judgment be entered for the Commissioner. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 13 || after being served with these findings and recommendations, any party may file written 14 || objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 || within the specified time may waive the right to appeal the District Court’s order. Martinez v. 17 Yist, 951 F.2d 1153 (9th Cir. 1991). 18 | Dated: August 25, 2022 □□ / del a 19 CAROLYNK. DELANEY 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 || 2/sedoris0767.dib.ckd_f&rs 27 28 15