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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 LEE CLARENCE FANE, Case No. 1:23-cv-01762-SAB

12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT AND

13 v. DIRECTING CLERK OF THE COURT TO

ENTER JUDGMENT IN FAVOR OF THE

14 COMMISSIONER OF SOCIAL COMMISSIONER OF SOCIAL SECURITY

SECURITY, AND TO CLOSE THIS ACTION

15 Defendant. (ECF Nos. 17, 21, 24) 16

17 18 I. 19 INTRODUCTION 20 Lee Clarence Fane (“Plaintiff”) seeks judicial review of a final decision of the Commissioner 21 of Social Security (“Commissioner” or “Defendant”) denying his application for disability benefits 22 pursuant to the Social Security Act. The matter is currently before the Court on the parties’ briefs, 23 which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.1 24 Plaintiff requests the decision of Commissioner be vacated and the case be remanded for 25 payment of benefits or in the alternative further proceedings, arguing the ALJ erred by misapplying the 26 Chavez presumption of continuing nondisability; the residual functional capacity is not supported by 27 1 The parties have consented to the jurisdiction of the United States Magistrate Judge and this action has been assigned 1 substantial evidence because the ALJ failed to incorporate the opinion of Nurse Practitioner Saucier, 2 and the ALJ failed to provide clear and convincing reasons to reject his symptom testimony. 3 For the reasons explained herein, Plaintiff’s motion for summary judgment shall be denied. 4 II. 5 BACKGROUND 6 A. Procedural History 7 Plaintiff previously filed applications for a period of disability and disability insurance 8 benefits and supplemental security income that were denied on September 16, 2013. (AR 65.) 9 Plaintiff filed an application for supplemental security income that was denied on August 16, 2018. 10 (AR 62-74.) 11 Plaintiff protectively filed the instant application for supplemental security income on 12 December 20, 2019. (AR 97.) Plaintiff’s application was initially denied on April 24, 2020, and 13 denied upon reconsideration on March 23, 2021. (AR 79-81, 115-19.) Plaintiff requested and 14 received a hearing before Administrative Law Judge Scot Septer (“the ALJ”). Plaintiff appeared 15 for a hearing on November 15, 2022. (AR 32-61.) On December 5, 2022, the ALJ issued a decision 16 finding that Plaintiff was not disabled. (AR 15-27.) On October 17, 2023, the Appeals Council 17 denied Plaintiff’s request for review. (AR 1-3.) 18 B. The ALJ’s Findings of Fact and Conclusions of Law 19 The ALJ made the following findings of fact and conclusions of law as of the date of the 20 decision, December 5, 2022: 21 1. Plaintiff has not engaged in substantial gainful activity since December 20, 2019, the 22 application date. 23 2. Plaintiff has the following severe impairment: schizophrenia. 24 3. Plaintiff does not have an impairment or combination of impairments that meets or 25 medically equals the severity of one of the listed impairments. 26 4. Plaintiff has the residual functional capacity to perform a full range of work at all 27 exertional levels but with the following nonexertional limitations: Plaintiff is able to 1 routine tasks, and should have no contact with members of the general public. 2 5. Plaintiff has no past relevant work. 3 6. Plaintiff was 51 years old, which is defined as an individual closely approaching 4 advanced age, on the date the application was filed. 5 7. Plaintiff has at least a high school education. 6 8. Transferability of job skills is not an issue because Plaintiff does not have past relevant 7 work. 8 9. Considering Plaintiff’s age, education, work experience, and residual functional 9 capacity, there are jobs that exist in significant numbers in the national economy that he 10 can perform. 11 10. Plaintiff has not been under a disability, as defined in the Social Security Act, since 12 December 20, 2019, the date the application was filed. 13 (AR 20-26.) 14 C. Plaintiff’s Testimony 15 1. March 10, 2020 Adult Function Report 16 On March 10, 2020, Plaintiff completed an adult function report. (AR 287-94.) Plaintiff 17 stated his ability to work is limited because, every time he starts to do yard work, he hears loud 18 voices messing with his mind. It is hard to handle tools, he cannot sleep at night due to bad dreams, 19 nightmares, seeing things that keep him up all night, not resting, and being too tired to do anything 20 in the morning. (AR 287.) On a typical day, Plaintiff gets up and brushes his teeth, eats breakfast, 21 goes to the park, and walks around. He goes to the Fresno malls, the library and reads a few books 22 and looks at magazines, then goes home, watches television and goes to bed. Plaintiff feeds and 23 waters the cats and dog. His sister will also feed the animals, takes them for walks and cleans them. 24 (AR 288.) 25 Plaintiff’s sleep is affected because he hears voices while sleeping, has nightmares, and sees 26 things that touch his body. He does not bathe often because he cannot see and shakes, he is afraid 27 to wash his hair. It is hard to shave because of the voices and to use the toilet because he sees things 1 Most of the time he forgets to take his medication. He does not prepare food. He does the laundry 2 and rakes the yard, but he needs a helping hand. (AR 289.) Plaintiff goes outside twice a day. He 3 is able to go out alone. He does not drive because he is afraid of cars. He shops once a year for 4 fifteen hours for clothing. He has never had a savings account and does not know how to use a 5 check book or money order. He can count change. (AR 290.) 6 Plaintiff’s hobbies are reading a good book and newspaper, playing cards, and walking the 7 dog. He does these things three times a day. He finds it hard to focus on his day and to think what 8 he is going to do each day. Plaintiff attends a Bible study once a week and attends church once a 9 week. He does not need someone to accompany him. (AR 291.) Plaintiff does not have any 10 problems getting along with others. (AR 292.) 11 Plaintiff’s conditions affect seeing, memory, understanding, following instructions, and 12 using his hands. He forgets to change his clothing and take his medication. It is hard to follow 13 what people are saying because of the voices. Plaintiff can pay attention for thirty seconds and he 14 does not start what he finishes. Plaintiff gets confused following written instructions. He can 15 sometimes follow spoken instructions when they are spoken slowly. (AR 292.) He gets along fine 16 with authority figures. He has not noticed any unusual behavior or fears. (AR 293.) Plaintiff takes 17 Risperdal, metformin, and Glyburide and has no side effects from his medication. (AR 294.) 18 2. November 15, 2022 Hearing Testimony 19 Plaintiff testified at the November 15, 2022 hearing. (AR 37-53.) Plaintiff lives with his 20 sister, her two sons and a daughter. (AR 37.) There are seven people that live in the house. (AR 21 38.) He had a chihuahua that died about two weeks prior to the hearing, and his nephew got him a 22 big dog. (AR 43-44.) 23 Plaintiff graduated from high school and attended some college. (AR 38-39.) He has not 24 worked in the last fifteen years, just doing side jobs, like mowing lawns and trimming trees. He 25 used to work every day but has not worked in the past year. (AR 39.) Plaintiff is unable to work 26 because he was going to general relief, the voices came back in his head, and ever since the 27 pandemic they had to stay inside. (AR 39-40.) His depression increased and he had anxiety that 1 while. If he stops taking his medication, then the voices are back within 24 hours. (AR 40.) When 2 he was taking less medication, he could still hear the voices. Now that they have increased his 3 medication, he hears them sometimes. He forgets to take his medication a lot. (AR 41.) He used 4 to hear voices every day but since they increased his medication, he hears voices twice a day 5 depending on what he is doing. (AR 49.) 6 Plaintiff has been forgetting things for the last three or four years. (AR 41.) He forgets to 7 shower, feed the dog, go to the grocery store, take his medication, clean up the yard, and dump the 8 garbage can. He does not do his chores when he is too tired. Sometimes he has nightmares. Before 9 his medication, he used to have nightmares every night. (AR 42.) With his medication he does not 10 get them as often, maybe two or three nights a week. (AR 43, 50.) 11 During a typical day, Plaintiff’s sister cooks him breakfast, he feeds and plays with his dog, 12 he dumps the garbage, sweeps the floor, and makes his bed. (AR 43-44.) He will watch his two or 13 three-year-old nieces, playing with them and getting them their bottles. Most days he leaves the 14 house. (AR 44.) He will catch the bus and go down to the mall and talk to his friends. They talk 15 about old times or current events. (AR 45.) Sometimes when he gets up in the morning, he will do 16 exercises, he jogs around Edison High School because of his diabetes. (AR 46-47.) He has had 17 problems with his blood sugar and has changed his diet and is taking medication to control his blood 18 sugar. (AR 47.) He has been taking diabetic education classes. He remembers the classes, takes 19 notes, and is given educational papers to take home. (AR 48.) 20 Plaintiff is unable to work because his medication only lasts for two or three hours and then 21 the voices come back. When he tries to do work activity, he hears two or three voices telling him 22 to do things, like to hurt himself or other people. (AR 45.) He is afraid to be around a group of 23 teenagers because he thinks they are a gang and want to harm him. He has been afraid for about 24 five years after some kids tried to rob him. (AR 46.) 25 D. Medical Record 26 Plaintiff was seen on May 7, 2014, for a diabetes follow-up reporting he felt well and had no 27 complaints. (AR 411.) 1 the best treatment option but did not want to take insulin. (AR 405.) His schizophrenia was noted 2 to be currently asymptomatic and controlled with Risperdal. He endorsed hearing voices 3 occasionally but was able to ignore them. (AR 406.) 4 Plaintiff was seen on August 20, 2018, reporting a fair mood, mild depression, periodic 5 auditory hallucinations making derogatory comments, paranoia at times, and seeing shadows in the 6 periphery of his vision. He was disheveled with poor hygiene. Other than his reported 7 hallucinations, examination was otherwise unremarkable. (AR 357.) 8 On November 13, 2018, Plaintiff reported an increase in auditory hallucinations and had run 9 out of his medication eight days prior. He reported he had lost some of his pills and did not think 10 he could get an early refill. Examination notes he was disheveled, with poor hygiene. Speech was 11 slow, and there are random auditory hallucinations noted. Otherwise, examination is unremarkable. 12 (AR 355.) The record notes that he has been off his medication for eight days and was having mild 13 auditory hallucinations. (AR 356.) 14 Plaintiff was seen on February 4, 2019, reporting baseline auditory hallucinations making 15 random comments. He felt the Risperdal was helpful. Thought content notes positive auditory 16 hallucinations with random comments but was otherwise unremarkable. (AR 353.) 17 On July 9, 2019, Plaintiff reported a good mood and that he recently visited his family in 18 Southern California and enjoyed himself. He was having daily hallucinations making random 19 comments and occasionally was forgetting his medication. He remembers to take it when the voices 20 become more frequent. He reported good sleep and appetite and had no complaints. Thought 21 content notes positive auditory hallucinations with random comments but was otherwise 22 unremarkable. (AR 351.) 23 Plaintiff was seen on October 1, 2019, and reported a stable mood. He reported baseline 24 auditory hallucinations which make random comments and good self-care. Thought content notes 25 positive auditory hallucinations with random comments but was otherwise unremarkable. (AR 26 349.) 27 On October 24, 2019, Plaintiff was seen for diabetic care. (AR 367.) He was noted to be 1 or lifting weights at home. (AR 368.) Physical examination notes he was alert and oriented times 2 three with no acute distress. (AR 369.) His schizophrenia is noted to be well controlled. (AR 370.) 3 Plaintiff was seen on November 7, 2019, for lab results and lower back pain. He reported 4 taking his medications as prescribed. He was doing landscaping parttime and walking. His last 5 auditory hallucination was more than a week prior. He reported doing well by talking regularly 6 with his psychiatrist and taking his Risperdal. (AR 362.) Examination notes he is alert, awake, and 7 in no acute distress. (AR 363.) His psychiatric symptoms are noted to be well controlled with 8 Risperdal. (AR 364, 365.) 9 On December 23, 2019, Plaintiff was seen for a medication refill. Plaintiff denied command 10 auditory hallucinations, manic symptoms, and bizarre delusions. He reported good sleep and 11 appetite. He reported compliance with his medication with no side effects. He had no complaints 12 at this time. (AR 346.) Mental examination notes some paucity of speech, thought content was 13 positive for auditory hallucinations, occasional, random comments but was otherwise 14 unremarkable. (AR 347, 402.) 15 Plaintiff failed to appear for his appointment on March 23, 2020, and May 11, 2020. (AR 16 393.) 17 On September 15, 2020, and December 14, 2020, Plaintiff reported a good mood, sleeping 18 eight hours, and good self-care. He denied any hallucinations or paranoia. Mental examination 19 was unremarkable. (AR 396, 400.) 20 Plaintiff was seen on January 17, 2022, having run out of his diabetic medication and was 21 not checking his blood sugars at home. His schizophrenia is noted to be controlled with Risperdal. 22 (AR 480.) Examination notes that he is alert and oriented times three with no acute distress. (AR 23 482.) 24 On February 28, 2022, Plaintiff was seen for a follow-up. It is noted that his schizophrenia 25 is well controlled on medication. (AR 467.) Examination notes that he is alert and oriented times 26 three with no acute distress. (AR 469.) 27 Plaintiff was seen on March 28, 2022, for follow-up. He reported adherence to his 1 distress. (AR 461.) 2 On April 8, 2022, Plaintiff was seen for diabetic self-management education. He was noted 3 to be engaged and asked questions. (AR 424.) 4 Plaintiff was seen on May 5, 2022, for a follow-up denying any active complaints and 5 reporting compliance with his medication. (AR 452.) Examination notes that he is alert and 6 oriented times three with no acute distress. (AR 452.) 7 On May 13, 2022, Plaintiff was seen for diabetic self-management education reporting he 8 was taking all his medications and verbalized good understanding of the information that was 9 covered. (AR 433.) 10 Plaintiff was seen on June 16, 2022, for a follow-up and reported adherence to his 11 medication. (AR 446.) He was noted to be alert and oriented times three with no acute distress. 12 (AR 448.) 13 On July 22, 2022, he was seen for diabetic self-management and the verbalized good 14 understanding of the information discussed. The record notes he did excellent sorting food models 15 into carbs and not carb containing groups and engaged in education. He demonstrated good 16 understanding of recommended serving sizes. (AR 437.) 17 Plaintiff was seen on September 26, 2022, for a follow-up and denied any complaints. (AR 18 439.) His schizophrenia was noted to be well controlled with Risperdal. (AR 441.) Mental 19 examination notes he is alert and oriented times three with no acute distress. (AR 442.) 20 On October 26, 2022, a mental disorder questionnaire was completed. (AR 497-98.) Nurse 21 practitioner Saucier stated that Plaintiff had attended three counseling appointments that were 22 scheduled, and it was unknown if he needed assistance to keep his appointments. He has no posture, 23 gait, mannerisms, or general appearance that would impair his ability to work. The section 24 regarding mental impairments that would impair his ability to work was not completed. In response 25 to the question regarding whether mood or affect are affected to the degree that it would impair his 26 ability to work, the nurse did not check yes or no. She wrote taking meds will help with mood and 27 also flat affect. Plaintiff was diagnosed with paranoid schizophrenia. Plaintiff has a significant 1 Plaintiff’s activities of daily living have not been impaired to the point that he needs 2 assistance from others to achieve a socially acceptable standard of care. It was unknown if his 3 social functioning had been affected. Stress common to a normal work environment could 4 exacerbate his symptoms. His medications have side effects of tardive dyskinesia and tremors. 5 Plaintiff is presently stable. He was first seen in July 2022 and last examined in October 2022. 6 (AR 498.) 7 III. 8 LEGAL STANDARD 9 A. The Disability Standard 10 To qualify for disability insurance benefits under the Social Security Act, a claimant must 11 show he is unable “to engage in any substantial gainful activity by reason of any medically 12 determinable physical or mental impairment2 which can be expected to result in death or which has 13 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 14 423(d)(1)(A). The Social Security Regulations set out a five-step sequential evaluation process to 15 be used in determining if a claimant is disabled. 20 C.F.R. § 404.1520;3 Batson v. Comm’r of Soc. 16 Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in the sequential evaluation in 17 assessing whether the claimant is disabled are: 18 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 19 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or her 20 ability to work? If so, proceed to step three. If not, the claimant is not disabled. 21 Step three: Does the claimant’s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant 22 is disabled. If not, proceed to step four. 23 Step four: Does the claimant possess the residual functional capacity (“RFC”) to perform his or her past relevant work? If so, the claimant is not disabled. If not, 24

25 2 A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3).

26 3 The regulations which apply to disability insurance benefits, 20 C.F.R. §§ 404.1501 et seq., and the regulations which apply to SSI benefits, 20 C.F.R. §§ 416.901 et seq., are generally the same for both types of benefits. 27 Accordingly, while Plaintiff seeks only supplemental security income in this case, to the extent cases cited herein may reference one or both sets of regulations, the Court notes these cases and regulations are applicable to the 1 proceed to step five. 2 Step five: Does the claimant’s RFC, when considered with the claimant’s age, education, and work experience, allow him or her to adjust to other work that exists in 3 significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled. 4 5 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 6 on the claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). A 7 claimant establishes a prima facie case of qualifying disability once she has carried the burden of 8 proof from step one through step four. 9 Before making the step four determination, the ALJ first must determine the claimant’s 10 RFC. 20 C.F.R. § 416.920(e); Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, 11 at *2 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [her] limitations” 12 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1); 13 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 14 not severe. 20 C.F.R. §§ 416.920(e); 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p, 15 available at 1996 WL 374184 (Jul. 2, 1996).4 A determination of RFC is not a medical opinion, 16 but a legal decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 17 404.1527(d)(2) (RFC is not a medical opinion); 404.1546(c) (identifying the ALJ as responsible for 18 determining RFC). “[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine 19 residual functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). 20 At step five, the burden shifts to the Commissioner, who must then show that there are a 21 significant number of jobs in the national economy that the claimant can perform given his RFC, 22 age, education, and work experience. 20 C.F.R. § 416.912(g); Lounsburry v. Barnhart, 468 F.3d 23 1111, 1114 (9th Cir. 2006). To do this, the ALJ can use either the Medical Vocational Guidelines 24 (“grids”) or rely upon the testimony of a VE. See 20 C.F.R. § 404 Subpt. P, App. 2; Lounsburry, 25 468 F.3d at 1114; Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). “Throughout the five- 26 4 SSRs are “final opinions and orders and statements of policy and interpretations” issued by the Commissioner. 20 27 C.F.R. § 402.35(b)(1). While SSRs do not have the force of law, the Court gives the rulings deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1 step evaluation, the ALJ is responsible for determining credibility, resolving conflicts in medical 2 testimony, and for resolving ambiguities.’ ” Ford, 950 F.3d at 1149 (quoting Andrews v. Shalala, 3 53 F.3d 1035, 1039 (9th Cir. 1995)). 4 B. Standard of Review 5 Congress has provided that an individual may obtain judicial review of any final decision 6 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In 7 determining whether to reverse an ALJ’s decision, the Court reviews only those issues raised by 8 the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 9 Further, the Court’s review of the Commissioner’s decision is a limited one; the Court must find 10 the Commissioner’s decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 11 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). “Substantial evidence is relevant 12 evidence which, considering the record as a whole, a reasonable person might accept as adequate 13 to support a conclusion.” Thomas v. Barnhart (Thomas), 278 F.3d 947, 954 (9th Cir. 2002) (quoting 14 Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)); see also Dickinson 15 v. Zurko, 527 U.S. 150, 153 (1999) (comparing the substantial-evidence standard to the deferential 16 clearly erroneous standard). “[T]he threshold for such evidentiary sufficiency is not high.” Biestek, 17 139 S. Ct. at 1154. Rather, “[s]ubstantial evidence means more than a scintilla, but less than a 18 preponderance; it is an extremely deferential standard.” Thomas v. CalPortland Co. (CalPortland), 19 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted); see also Smolen v. 20 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Even if the ALJ has erred, the Court may not reverse 21 the ALJ’s decision where the error is harmless. Stout, 454 F.3d at 1055–56. Moreover, the burden 22 of showing that an error is not harmless “normally falls upon the party attacking the agency’s 23 determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). 24 Finally, “a reviewing court must consider the entire record as a whole and may not affirm 25 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 26 1159 (9th Cir. 2012) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 27 Nor may the Court affirm the ALJ on a ground upon which he did not rely; rather, the Court may 1 Cir. 2007); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Nonetheless, it is not 2 this Court’s function to second guess the ALJ’s conclusions and substitute the Court’s judgment 3 for the ALJ’s; rather, if the evidence “is susceptible to more than one rational interpretation, it is 4 the ALJ’s conclusion that must be upheld.” Ford, 950 F.3d at 1154 (quoting Burch v. Barnhart, 5 400 F.3d 676, 679 (9th Cir. 2005)). 6 IV. 7 DISCUSSION AND ANALYSIS 8 Plaintiff raises three issues on appeal: 1) the ALJ erred by misapplying the Chavez 9 presumption of continuing nondisability in evaluating the claim; 2) the RFC is not supported by 10 substantial evidence; and 3) the ALJ failed to provide clear and convincing reasons to reject his 11 symptom testimony. (Pl.’s Mot. for Summary Judgment (“Mot.”) 5,5 ECF No. 17.)

12 A. Whether the ALJ Erred by Continuing to Apply the Chavez Presumption of Continuing Disability 13 14 Plaintiff argues that the ALJ erred by continuing to apply the Chavez presumption of 15 continuing non-disability. Plaintiff asserts that the presumption has been rebutted because there 16 was a material change in age category. (Mot. at 10.) In the opinion, the ALJ found “[n]o material 17 changes exist since the prior administrative law judge decision, and the prior ALJ determination is 18 adopted, and the presumption of continuing nondisability has not been rebutted.” (AR 18.) 19 There was a prior decision denied on August 16, 2018, and where the Appeals counsel 20 denied review, that decision is final and binding. 20 C.F.R. ¶ 404.905; Chavez v. Bowen, 8444 21 F.2d 691, 692 (1988). The doctrine of res judicata applies in administrative proceedings, 22 although it is less rigidly applied to administrative proceedings. Chavez, 844 F.2d at 693. 23 The Ninth Circuit has held that a finding that the claimant is not disabled creates a 24 presumption that the claimant continues to be able to work after that date. Lester v. Chater, 81 25 F.3d 821, 827 (9th Cir. 1995). The prior finding that the claimant was not disabled cannot be re- 26 litigated through date of the prior decision. Giancola v. Colvin, 31 F.Supp.3d 1215, 1220-21 27 5 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 1 (E.D. Wash. 2014). “[I]n order to overcome the presumption of continuing nondisability arising 2 from the first administrative law judge’s findings of nondisability, [a claimant] must prove 3 ‘changed circumstances’ indicating a greater disability.” Chavez, 844 F.2d at 693 (quoting Taylor 4 v. Heckler, 765 F.2d 872, 875 (9th Cir.1985)). This can be done by showing a worsening of 5 symptoms or other changes such as the existence of a new impairment not considered in the 6 previous application or a change in the claimant’s age category. Lester, 81 F.3d at 827. The 7 burden of proof is on the claimant to show that he is disabled and on a subsequent application for 8 benefits the claimant has the burden of rebutting the presumption of continuing nondisability. 9 Lyle v. Secretary of Health and Human Services, 700 F.2d 566, 568 (9th Cir. 1983). 10 Plaintiff argues that he was a few days short of turning 54 years old on the date of the 11 decision which would put him in a “borderline age” situation where he would be considered 12 “advanced age.” (Mot. at 10-11.) Defendant counters that the ALJ considered that Plaintiff was 13 an individual closely approaching advanced age based on the date of filing the current application 14 and Plaintiff has failed to show error. (Def.’s Responsive Brief (“Opp.”) 4, ECF No. 21.) In the 15 reply, Plaintiff appears to drop the argument that he should have been considered borderline age 16 and argues that he has shown a material change based on the change in age category and the increase 17 in the severity of his symptoms. (Pl.’s Reply (“Reply”) 2, ECF No. 24.) 18 The ALJ considered that Plaintiff was born on November 27, 1968, and was 51 years old, 19 which is defined as an individual closely approaching advanced age, on the date the application was 20 filed. (AR 25.) On the date of the decision, December 5, 2022, Plaintiff had just turned 54 years 21 old. While Plaintiff argues that he should have been considered a borderline age situation, the 22 regulations provide:

23 We will use each of the age categories that applies to you during the period for which we must determine if you are disabled. We will not apply the age categories 24 mechanically in a borderline situation. If you are within a few days to a few months of reaching an older age category, and using the older age category would result in 25 a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your 26 case. 27 20 C.F.R. § 404.1563(b). 1 (d) Person closely approaching advanced age. If you are closely approaching 2 advanced age (age 50–54), we will consider that your age along with a severe impairment(s) and limited work experience may seriously affect your ability to 3 adjust to other work.

4 (e) Person of advanced age. We consider that at advanced age (age 55 or older), age significantly affects a person’s ability to adjust to other work. We have special rules 5 for persons of advanced age and for persons in this category who are closely approaching retirement age (age 60 or older). 6 7 20 C.F.R. § 404.1563(d)(e). 8 Here, Plaintiff had just turned 54 years old less than two weeks prior to the issuance of the 9 decision and was not “within a few days to a few months of reaching an older age category.” The 10 ALJ properly considered Plaintiff’s age category in the decision. However, the ALJ erred by 11 finding that the continuing presumption of disability continued to apply as the change in age 12 category since the prior decision was sufficient to rebut the Chavez presumption of continuing 13 disability. Vasquez v. Astrue, 572 F.3d 586, 598 (9th Cir. 2009); Oberg v. Astrue, 472 F. App’x 14 488, 490 (9th Cir. 2012); Arthur C. v. Saul, No. 5:18-CV-01948-MAA, 2019 WL 5420445, at *3 15 (C.D. Cal. Oct. 23, 2019). 16 The question then is whether this error is harmless, especially given that the ALJ did consider 17 the proper age category in coming to his decision. “An error in a Social Security proceeding is 18 harmless when ‘it is inconsequential to the ultimate nondisability determination.’ ” Arthur C., 19 2019 WL 5420445, at *3 (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).) 20 In the context of the inappropriate application of the Chavez presumption of continuing disability, 21 the error is harmless if the ALJ also “conducted a thorough review of the medical records and 22 testimony to make an independent nondisability finding.” Plummer v. Berryhill, 747 F. App’x 23 631, 632 (9th Cir. 2019); see also Cha Yang v. Comm’r of Soc. Sec. Admin., 488 F. App’x 203, 24 204 (9th Cir. 2012) (finding error harmless where the ALJ weighed the medical evidence in 25 determining the claimant’s residual functional capacity). For the reasons discussed below, the 26 Court finds that any error in applying the Chavez presumption of continuing disability was 27 harmless as the ALJ weighed the evidence in the record and the decision is supported by substantial evidence. 1 B. Whether the Mental RFC is Supported by Substantial Evidence 2 Plaintiff asserts that the mental RFC finding is not supported by substantial evidence 3 because the ALJ found that Chavez applied and there is a well-documented increasing severity of 4 his schizophrenia. (Mot. at 11.) Plaintiff argues that the ALJ found the opinion of Ms. Saucier 5 partially persuasive and erred by failing to provide adequate supportability and consistency 6 analysis. Plaintiff asserts that the ALJ failed to account for Ms. Saucier’s opinion that stress 7 common to the normal work environment may exacerbate his symptoms of hallucination, delusion, 8 and paranoid thoughts such that they would impair his ability to perform full-time work week after 9 week, and that Plaintiff suffered side effects from his medication, including tardive dyskinesia and 10 tremors that would impair his ability to work. (Id. at 12.) 11 1. Weighing Medical Opinions and Prior Administrative Medical Findings 12 Under regulations, the agency “will not defer or give any specific evidentiary weight, 13 including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), 14 including those from [the claimant’s own] medical sources.” 20 C.F.R. §§ 404.1520c(a); 15 416.920c(a). Thus, the regulations require an ALJ to apply the same factors to all medical sources 16 when considering medical opinions, and no longer mandate particularized procedures that the ALJ 17 must follow in considering opinions from treating sources. See 20 C.F.R. § 404.1520c(b) (the ALJ 18 “is not required to articulate how [he] considered each medical opinion or prior administrative 19 medical finding from one medical source individually.”); Trevizo v. Berryhill, 871 F.3d 664, 675 20 (9th Cir. 2017). 21 “When a medical source provides one or more medical opinions or prior administrative 22 medical findings, [the ALJ] will consider those medical opinions or prior administrative medical 23 findings from that medical source together using” the following factors: (1) supportability; (2) 24 consistency; (3) relationship with the claimant; (4) specialization; [and] (5) other factors that “tend 25 to support or contradict a medical opinion or prior administrative medical finding.” 20 C.F.R. §§ 26 404.1520c(a), (c)(1)–(5). The most important factors to be applied in evaluating the persuasiveness 27 of medical opinions and prior administrative medical findings are supportability and consistency. 1 Regarding the supportability factor, the regulation provides that the “more relevant the objective 2 medical evidence and supporting explanations presented by a medical source are to support his or 3 her medical opinion(s), the more persuasive the medical opinions … will be.” 20 C.F.R. § 4 404.1520c(c)(1). Regarding the consistency factor, the “more consistent a medical opinion(s) is 5 with the evidence from other medical sources and nonmedical sources in the claim, the more 6 persuasive the medical opinion(s) … will be.” 20 C.F.R. § 404.1520c(c)(2). 7 Accordingly, the ALJ must explain in his decision how persuasive he finds a medical 8 opinion and/or a prior administrative medical finding based on these two factors. 20 C.F.R. § 9 404.1520c(b)(2). The ALJ “may, but [is] not required to, explain how [he] considered the [other 10 remaining factors],” except when deciding among differing yet equally persuasive opinions or 11 findings on the same issue. 20 C.F.R. §§ 404.1520c(b)(2)–(3). Further, the ALJ is “not required 12 to articulate how [he] considered evidence from nonmedical sources.” 20 C.F.R. § 404.1520c(d). 13 Nonetheless, even under the new regulatory framework, the Court still must determine whether the 14 ALJ adequately explained how he considered the supportability and consistency factors relative to 15 medical opinions and whether the reasons were free from legal error and supported by substantial 16 evidence. See Martinez V. v. Saul, No. CV 20-5675-KS, 2021 WL 1947238, at *3 (C.D. Cal. May 17 14, 2021). 18 2. ALJ’s Findings 19 The ALJ considered the prior administrative findings of the state agency medical 20 consultants. On April 23, 2020, Dr. Schwartz reviewed the record and indicated that the medical 21 evidence indicates that Plaintiff sometimes has visual and auditory hallucinations but is generally 22 stable with some periods of noncompliance secondary to forgetfulness. Dr. Schwartz found that 23 the current evidence reveals fair grooming, some paucity of speech and occasional auditory 24 hallucinations. Dr. Schwartz found the medical record did not indicate any material change and 25 Plaintiff was able to perform simple tasks with no public contact. (AR 24, 90.) 26 The ALJ also considered that on March 9, 2021, Dr. Goosby reviewed the record and 27 affirmed the conclusion that Plaintiff had mild limitations in understanding, remembering or 1 concentrating, persisting or maintaining pace, and no problems adapting or managing himself. (AR 2 24, 105-06.) The ALJ found this opinion to be very persuasive as it is consistent with the overall 3 evidence of record, which includes generally normal mental status findings, no active complaints, 4 intact cognition, reports of good self-care, and schizophrenia that is well-controlled with 5 medication. (AR 24-5, 346-59, 360-90, 466-71.) 6 Finally, the ALJ considered that Ms. Saucier completed a mental disorder questionnaire 7 dated October 26, 2022. (AR 497-98.) She noted that Plaintiff had attended three consecutive 8 appointments as scheduled. He had no posture, gait, mannerisms, or general impairment problem 9 that would impair his ability to work. She did not answer questions regarding Plaintiff’s ability to 10 remain oriented, memory, concentration, intelligence, or judgment. Nor did she answer questions 11 regarding Plaintiff’s mood and affect or whether they would affect his ability to work. Ms. Saucier 12 stated that Plaintiff was taking medications that help his mood but can cause a flat affect. She noted 13 Plaintiff experienced hallucinations and delusional or paranoid thoughts that caused a significant 14 impairment in his ability to work. (AR 25, 497.) He does not need assistance with activities of 15 daily living, and his social functioning was unknown to her. Ms. Saucier noted that stress common 16 to the normal work environment could escalate his symptoms. Plaintiff’s prescribed medications 17 cause adverse side effects including tremors and tardive dyskinesia. She noted that Plaintiff is 18 currently stable. (AR 25, 498.) The ALJ found that the opinion is somewhat persuasive, noting the 19 issues with hallucinations which is supported by the overall record. However, the record suggests 20 that Plaintiff’s symptoms are largely managed with medications and the opinions of the state agency 21 physicians align with the findings of the provider as well as the overall record. (AR 25.) 22 3. Analysis 23 Plaintiff argues that Ms. Saucier’s opinion is not consistent with a finding that his symptoms 24 are largely managed by compliance with medication. Plaintiff contends that the ALJ 25 mischaracterizes the treatment record by the non-specific citation to the treatment records and the 26 reason is not supported by substantial evidence for the finding that his symptoms were well 27 controlled with medication. (Mot. at 13.) While Plaintiff argues that notations that he was doing 1 rely solely on notations that Plaintiff was doing well or was stable on his medications. The ALJ 2 pointed to specific records that state that Plaintiff’s symptoms are well controlled with medication 3 compliance and his reports that he was not having psychotic symptoms. 4 The ALJ noted that on December 23, 2019, Plaintiff was seen for follow up of his paranoid 5 schizophrenia and was noted to be stable on medication. (AR 23, 346-48.) In September 2020, 6 Plaintiff denied depression, manic or psychiatric symptoms, including auditory hallucinations, 7 visual hallucinations, or paranoia. (AR 23, 396.) In December 2020, Plaintiff reported a good 8 mood with no symptoms. (AR 23, 400.) On February 28, 2022, he was noted to have schizophrenia 9 that was controlled with medication.6 (AR 23, 467.) In May and September of 2022, he reported 10 no active complaints. (AR 24, 439, 452.) Further, the latest records considered by the ALJ note 11 that Plaintiff’s symptoms are controlled with Risperdal. (AR 406, 408, 441, 467, 480.) 12 Plaintiff contends that a review of these records show that Plaintiff continued to hear voices 13 while on medication and continues to be diagnosed with acute schizophrenia and notations that his 14 schizophrenia is well controlled are in the records by his non-psychological specialist treating his 15 diabetes and back pain. (Mot. at 15.) The ALJ did consider that Plaintiff continued to hear voices 16 on medication and was diagnosed with schizophrenia, but he also considered that the objective 17 findings in the record were otherwise generally normal. (AR 23-24.) While Plaintiff argues that 18 notations that his schizophrenia is well-controlled are by his non-psychological specialist treating 19 his diabetes and back pain, the ALJ also noted Plaintiff’s mental health provider records in which 20 he denied symptoms and was noted to be doing well on his medication. (AR 346 (no complaints), 21 347 (occasional auditory hallucinations), 349 (reports baseline auditory hallucinations, but no 22 command auditory hallucinations), 351 (reports daily auditory hallucinations but sometimes forgets 23 to take his medication), 353 (reports baseline auditory hallucinations), 353-54 (reports increase in 24 auditory hallucinations which are noted to be mild after having been out of medication for eight 25 days), 357 (reports periodic auditory hallucinations and feels paranoid at times), 362 (doing well 26

27 6 The Court notes that the ALJ stated the appointment was March 1, 2022, however while the record was signed on March 1, 2022, the appointment is dated February 28, 2022. (AR 465.) 1 on medication and last auditory hallucination was one week prior); 396 (denied psychiatric 2 symptoms), 400 (denied psychiatric symptoms).7 3 Plaintiff argues that the ALJ failed to account for Ms. Saucier’s limitation on stress common 4 to the normal work environment, however the ALJ found that Ms. Saucier’s opinion was somewhat 5 persuasive as it was supported by the overall record which notes hallucinations. But the ALJ found 6 it was inconsistent with the medical record which suggested his symptoms were well controlled 7 with compliance with medications. (AR 25.) The ALJ reasonably gave more weight to the opinions 8 of the state agency consultants who opined that Plaintiff was able to perform simple tasks with no 9 public contact. (AR 24, 90, 105-06.) The ALJ is not required to incorporate evidence from the 10 opinions of treating physicians whose opinions were permissibly discounted. Batson, 359 F.3d at 11 1197. 12 To the extent that Plaintiff argues that his self-reports in the medical record do not support 13 the RFC, the ALJ is not required to credit a claimant’s subjective complaints simply because they 14 are recorded in his physician’s records. Sager v. Colvin, 622 F. App’x 629, 629 (9th Cir. 2015) 15 (citing Batson, 359 F.3d at 1195). 16 Finally, to the extent that Plaintiff argues that the ALJ erred by failing to consider Ms. 17 Saucier’s statement that his medications cause tardive dyskinesias and tremors, the ALJ did 18 consider this evidence. (AR 25.) Plaintiff points to no evidence of such symptoms in the record 19 that would support any error by the ALJ. Rather, as Defendant argues, Plaintiff consistently denied 20 any side effects from his medication. (AR 294, 307, 349, 351, 353, 355, 357, 393, 396, 398, 400, 21 402.) Accordingly, to the extent that the ALJ did err by failing to directly address side effects from 22 medication, it would be harmless error. ALJ’s decision will not be reversed for errors that are 23 harmless. Burch, 400 F.3d at 679. 24

25 7 Plaintiff cites to “McKenzie v. Kijakazi, Case No. 1:20-cv-0327-JLT-2021 WL 42799015 (E.D. Cal. Sept, 20, 2021),” however, the Westlaw citation provided does not bring up a document with this caption. Review of the decision issued in the action on the court’s docket shows that the ALJ in the matter stated that the progress notes 26 show that the claimant was stable on medication and tolerates the medication without side effects “citing Exh. B9F- 12F)”. (Order Granting Pl.’s Req. for Judicial Review, 17, ECF No. 23.) Here, the ALJ did not just broadly cite to 27 exhibits, but discussed specific records and the evidence that supports his finding that Plaintiff’s symptoms were controlled with compliance with medication. 1 The Court finds that substantial evidence supports the ALJ’s mental RFC findings.

2 C. Whether the ALJ Failed to Provide Clear and Convincing Reasons to Discredit his Symptom Testimony 3 4 Plaintiff contends that the ALJ committed harmful error by failing to provide clear and 5 convincing reasons to reject his symptom testimony. Plaintiff states that the ALJ found that 6 Plaintiff met the first step because the ALJ found that his schizophrenia could reasonably be 7 expected to cause the alleged symptoms, so the only issue is whether the ALJ provided specific, 8 clear and convincing reasons to find that his testimony was inconsistent with the medical and other 9 evidence in the record. (Mot. at 19.) Plaintiff argues that the only indication that the ALJ even 10 attempted to reject his symptom testimony absent “stock language” is the ALJ’s “cherry-picked” 11 and “mischaracterized” discussion of his testimony which incorrectly depicts him as more 12 functional than he is. (Mot. at 20.) 13 Plaintiff argues that the ALJ failed to address that while his symptoms improved on higher 14 dosages of his medication, he still hears voices two times per day, has nightmares once or twice a 15 week, and the medication only lasts for two to three hours and then the voices come back. Plaintiff 16 also argues that the ALJ did not discuss that when he has nightmares he will stay up for a while 17 frustrated and depressed because he cannot sleep, will go to sleep late and wake up tired. Further, 18 Plaintiff contends that the ALJ did not discuss his testimony that he suffers from memory problems 19 and forgets to take his medication. (Id. at 21.) Plaintiff also asserts that the ALJ mischaracterizes 20 the evidence because despite the fact that Plaintiff takes care of his dog, performs chores around 21 the house and his own activities of daily living, he also testified that he forgets to perform these 22 activities and often forgets his medication and his sister reminds him to do things. (AR 22.) 23 Plaintiff also asserts that there is no indication that he performs activities on a consistent basis such 24 that they translate into his ability to sustain normal work activity eight hours a day five days a week. 25 (AR 23-4.) Finally, Plaintiff argues that even if Plaintiff was hearing voices two to three times per 26 week while complaint with medication, this would be outcome determinative as the VE testified 27 that there would be no work for a person who was absent or leaves work early two days a week or 1 Defendant counters that the ALJ’s decision conforms with the legal standards for 2 discrediting symptom testimony. (Opp. at 13.) Defendant asserts that the ALJ considered that 3 Plaintiff reported he was unable to work because he hears thing, that when he takes his medication, 4 he does not hear voices for a while, but sometimes forgets his medication. The ALJ then considered 5 the objective medical evidence which showed intact cognition and other normal, good, intact, and 6 average findings on examination which are substantial evidence to support the ALJ’s finding. (Id.) 7 Defendant argues that the findings are also reinforced by the ALJ’s conclusion that his 8 symptoms were largely managed with medication. (Id.) Further, Defendant contends that the ALJ 9 considered that Plaintiff demonstrated no more than moderate limitations in his ability to 10 concentrate, maintain pace, and persist. The ALJ also noted that Plaintiff was able to remember 11 recent remote details of his life and to complete the disability form, had no problems getting along 12 with others, and attended weekly bible study. (Id. at 14.) Defendant further contends that the ALJ 13 considered that in 2019 Plaintiff’s cognition was grossly intact and mental examinations were 14 normal; in 2020 Plaintiff reported a good mood and denied depression, auditory or visual 15 hallucinations, and paranoia and had good self-care with no complaints and mental examination 16 was within normal limits. Defendant asserts that these observations, admissions, and findings are 17 ample reason to discount Plaintiff’s symptoms complaints. (Id. at 14-5.) Defendant also asserts 18 that Plaintiff’s testimony that he takes care of his dog, does chores around the home, goes to the 19 mall daily to talk with his friends, and gets up and exercises in the morning also support the decision. 20 (Id. at 15.) 21 Defendant argues that while Plaintiff contends that the ALJ cannot discount his symptom 22 complaints based on their improvement he is mistaken; his testimony that he finds comfort in his 23 dog does not negate the testimony that he cares for his dog, and his claim that he is forgetful due to 24 his lack of sleep is merely an attempt to rewrite his testimony. (Id.) Defendant asserts that Plaintiff 25 has failed to show that the ALJ erred, and he assumes without support in the record that he would 26 be off task or absent from work due to hearing voices, but his conclusory statements do not satisfy 27 his burden of proof, much less demonstrate harmful error. (Id. at 16.) 1 1. Legal Standard 2 A claimant’s statements of pain or other symptoms are not conclusive evidence of a physical 3 or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); SSR 16-3p; see also Orn, 495 F.3d 4 at 635 (“An ALJ is not required to believe every allegation of disabling pain or other non-exertional 5 impairment.”). Rather, an ALJ performs a two-step analysis to determine whether a claimant’s 6 testimony regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 7 995, 1014 (9th Cir. 2014); Smolen, 80 F.3d at 1281; SSR 16-3p, at *3. First, the claimant must 8 produce objective medical evidence of an impairment that could reasonably be expected to produce 9 some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281– 10 82. If the claimant satisfies the first step and there is no evidence of malingering, “the ALJ may 11 reject the claimant’s testimony about the severity of those symptoms only by providing specific, 12 clear, and convincing reasons for doing so.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) 13 (citations omitted). 14 If an ALJ finds that a claimant’s testimony relating to the intensity of his pain and other 15 limitations is unreliable, the ALJ must make a credibility determination citing the reasons why the 16 testimony is unpersuasive. The ALJ must specifically identify what testimony is credible and what 17 testimony undermines the claimant’s complaints. In this regard, questions of credibility and 18 resolutions of conflicts in the testimony are functions solely of the Secretary. Valentine v. Astrue, 19 574 F.3d 685, 693 (9th Cir. 2009) (quotation omitted); see also Lambert, 980 F.3d at 1277. 20 In addition to the medical evidence, factors an ALJ may consider include the location, 21 duration, and frequency of the pain or symptoms; factors that cause or aggravate the symptoms; the 22 type, dosage, effectiveness or side effects of any medication; other measures or treatment used for 23 relief; conflicts between the claimant’s testimony and the claimant’s conduct—such as daily 24 activities, work record, or an unexplained failure to pursue or follow treatment—as well as ordinary 25 techniques of credibility evaluation, such as the claimant’s reputation for lying, internal 26 contradictions in the claimant’s statements and testimony, and other testimony by the claimant that 27 appears less than candid. See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti 1 Cir. 2007); Smolen, 80 F.3d at 1284. Thus, the ALJ must examine the record as a whole, including 2 objective medical evidence; the claimant’s representations of the intensity, persistence and limiting 3 effects of his symptoms; statements and other information from medical providers and other third 4 parties; and any other relevant evidence included in the individual’s administrative record. SSR 5 16-3p, at *5. 6 2. Analysis 7 In addressing Plaintiff’s mental impairment, the ALJ noted Plaintiff “testified in a coherent 8 manner during the hearing[;]” “demonstrated the ability to concentrate, maintain pace and 9 persist[;]” and was able to remember recent remote details of his life, including working off the 10 books every day last year doing mowing and tree trimming.” (AR 21, 39.) The ALJ also 11 considered that moderate limitations were supported by his auditory and visual hallucinations, but 12 he reported no problems getting along with others or authority figures and attends church weekly. 13 (AR 21, 291, 292.) In 2019, Plaintiff reported his mood as good and stable, with no depression and 14 denied command hallucinations. (AR 21, 351, 349.) Cognition was grossly intact and mental 15 examination was normal. (AR 21, 351, 402.) 16 In 2020, Plaintiff reported a good mood and denied depression, auditory hallucinations, 17 visual hallucinations, and paranoia. (AR 21, 396, 400.) He reported good self-care and had no 18 complaints. (AR 21, 396, 400.) Mental status examinations were within normal limits. (AR 21, 19 396, 400.) 20 The ALJ considered that Plaintiff alleged disability due to mental impairment, hearing 21 things, and diabetes. (AR 22.) He claimed his conditions affect his ability to see, remember, 22 understand, follow instructions, and use his hands. (AR 22, 292.) He reported that during the last 23 15 years he had done side jobs including mowing lawns and pruning trees, working every day the 24 prior year. (AR 22, 39.) He reported that he stopped working because he was on general relief and 25 his voices came back and his depression increased. (AR 22, 39-40.) Plaintiff stated that when he 26 takes his medication, he does not hear voices for a while but that he sometimes forgets to take his 27 medications. (AR 22, 41, 289.) His medication helps with his nightmares. (AR 22, 42-3, 50.) He 1 He generally goes to the mall and talks with his friends on a daily basis. (AR 22-3, 45.) He 2 exercises when he gets up in the morning. (AR 23, 46-7.) 3 While the ALJ found that Plaintiff reports he is currently hearing voices two to three times 4 per week (AR 23), at the hearing, Plaintiff testified,

5 Q Okay. And as I looked through the record, I see you do have a history and they call it schizophrenia, and I guess that would be -- 6 A Yeah, I do. Q -- the voices. There’ve been times when you did and didn’t hear the voices. 7 Is that correct? A Yes. When I take my medication, then I don’t hear them for a while. 8 Q Okay. A Yeah. 9 Q What happens if you stop the medications? A Oh, if I -- if I stop -- one time I stopped and they – and they it came back 24 10 -- they was around me 24 hours a – a day Q Okay. 11 A -- every hour -- Q Okay. 12 A -- every minute. Yeah. Q Now, so when you take the medications do they go away all the time or do 13 they just decrease them, how would you describe the medications effect? A Well it -- it it goes and comes after the medication wears off, and sometimes 14 when I used to take less medication I – I could still still hear the voices coming in, you know. 15 Q And with more medication you're not hearing them? A Yeah, sometimes. 16 (AR 41.) 17 Q So just a clarification. You said -- have they increased your mental health medications recently? 18 A Yeah, I had. I take – I’m still taking one pill a day. take three or four. [SIC] Two in the morning, one in the afternoon, and two at night. 19 Q And now that you’re on that kind of dosage, do you still hear the voices? A Sometimes, sometimes not. 20 Q Okay. How often are you hearing voices? A How many times or how often? I -- I didn’t understand the question now. 21 Q Just in general, how often, is it once a month, once a week, every day, like that? A Well since I've had an increase, I used to hear them every day, but well I’d say 22 about twice a twice a day depending on what I’m doing. Q Twice a day on the increased medication? 23 A Yeah. 24 (AR 49.) 25 The ALJ found that Plaintiff’s medically determinable impairment could reasonably be 26 expected to cause the alleged symptoms, but his “statements concerning the intensity, persistence 27 and limiting effects of these symptoms are not entirely consistent with the medical evidence and 1 that Plaintiff’s statements about the intensity, persistence, and limiting effects of his symptoms were 2 inconsistent because they were not supported by the objective evidence in the record. (AR 23.) 3 The ALJ went on to discuss the evidence in the medical record. (AR 23.) Plaintiff reported 4 an increase in auditory hallucinations in November of 2018 and that he had run out of medication 5 eight days prior. (AR 23, 355.) In October 2019, Plaintiff reported a stable mood with no 6 depression and baseline auditory hallucinations making random comments. (AR 23, 349.) Plaintiff 7 failed to appear for appointments in March and May of 2020, but on September 15, 2020, and 8 December 14, 202, he reported a good mood and sleeping eight hours and denied depression, manic 9 or psychiatric symptoms with essentially normal mental examinations. (AR 23, 396, 400.) On 10 February 28, 2022, the record notes that his schizophrenia was well-controlled on medication, and 11 he was being followed by psychiatry.8 (AR 23, 466.) 12 a. Inconsistency with medical evidence 13 The ALJ found that Plaintiff’s symptom testimony was inconsistent with the objective 14 medical findings in the record. (AR 23, 25.) The determination that a claimant’s complaints are 15 inconsistent with clinical evaluations can satisfy the requirement of stating a clear and convincing 16 reason for discrediting the claimant’s testimony. Regennitter v. Commissioner of Social Sec. 17 Admin., 166 F.3d 1294, 1297 (9th Cir. 1999). The ALJ properly considered this evidence in 18 weighing Plaintiff’s credibility. “While subjective pain testimony cannot be rejected on the sole 19 ground that it is not fully corroborated by objective medical evidence, the medical evidence is still 20 a relevant factor in determining the severity of the claimant’s pain and its disabling effects.” 21 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)). 22 The ALJ considered that although the objective findings in the medical record showed 23 Plaintiff had hallucinations on occasion, his mental examinations were otherwise within normal 24 limits. (AR 21, 23-5.) While Plaintiff argues that the ALJ ignored his complaints about auditory 25 hallucinations, the ALJ noted in his opinion that despite Plaintiff reporting having auditory 26 hallucinations, the objective findings in the record consistently demonstrate normal cognition and 27 1 mental status findings, even when Plaintiff was non-compliant with his medication. Substantial 2 evidence in the record supports that ALJ’s findings that the objective medical findings do not 3 support his allegations that he is unable to work due to his mental impairments and hearing things. 4 (AR 347, 349, 351, 353, 355, 357, 396, 400, 402.) Rather a review of the record reveals substantial 5 evidence that despite his auditory hallucinations, Plaintiff’s mental examinations were relatively 6 normal. 7 b. Improvement with medication 8 Plaintiff argues that despite the ALJ’s finding that he improved with medication, he 9 continues to experience debilitating hallucinations and nightmares affecting his sleep and the ALJ 10 did not discuss his testimony that his symptoms return several hours after taking his medication. 11 While the ALJ found that Plaintiff reported hearing voices twice a week rather than twice a day, 12 the Court finds that substantial evidence supports the ALJ’s finding that the record demonstrates 13 his hallucinations and nightmares are well controlled with medication. Specifically, Plaintiff 14 reported that his medication was helpful, and he was doing well (AR 346, 353), he reported no 15 hallucinations for over a week (AR 362); he denied hallucinations (AR 396, 400); and his providers 16 noted that his schizophrenia was well controlled on Risperdal (AR 364, 365, 370, 441, 466, 480). 17 A condition that can be effectively controlled with medication is not disabling for the purposes of 18 determining eligibility for Social Security Insurance benefits. Warre v. Commissioner of Social 19 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Substantial evidence supports the finding that 20 Plaintiff’s mental impairments are well controlled with medication, and this is a clear and 21 convincing reason to reject Plaintiff’s symptom testimony. 22 c. Inconsistent statements 23 The ALJ also considered Plaintiff’s inconsistent statements regarding his mental health 24 symptoms. At the November 15, 2022 hearing, Plaintiff reported that he had auditory hallucinations 25 and prior to the increase in his medication, he had hallucinations and nightmares daily and since 26 the increase in his medication he had hallucinations 2 to 3 times per day and nightmares 2 to 3 times 27 per week. (AR 22, 41, 49.) However, the ALJ noted that on September 15, 2020, and December 1 denied any active complaints reporting being compliant with his medications. (AR 24, 452.) On 2 September 26, 2022, Plaintiff denied any active complaints. (AR 24, 439.) Robbins, 466 F.3d at 3 884 (conflicting or inconsistent statements can contribute to an adverse credibility finding); Light 4 v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997), as amended on reh’g (Sept. 17, 1997) 5 (credibility determination can be based on conflicts between the claimant’s testimony and his own 6 conduct, or on internal contradictions in that testimony). Plaintiff’s inconsistent statements are a 7 clear and convincing reason to reject his symptom testimony. 8 d. ALJ’s observations 9 The ALJ also noted that Plaintiff demonstrated the ability to concentrate, maintain pace and 10 persist, and remember recent remote details of his life. (AR 21.) The ALJ’s observations of 11 Plaintiff’s functioning may not form the sole basis for discrediting his testimony. Orn, 495 F.3d at 12 639; Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). But the “ALJ’s personal 13 observations may be used in ‘the overall evaluation of the credibility of the individual’s statements.’ 14 ” Orn, 495 F.3d at 639 (quoting S.S.R. 96–7p at 8.) The ALJ properly considered that during the 15 hearing Plaintiff was able to concentrate, persist, and remember recent remote details of his life. 16 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 17 The ALJ provided specific clear and convincing reasons to discredit Plaintiff’s symptom 18 testimony and Plaintiff’s motion for summary judgment on this ground is denied.

19 V. 20

CONCLUSION AND ORDER

21 In conclusion, the Court finds no harmful error warranting remand of this action and 22 Plaintiff’s motion for summary judgment shall be denied. 23 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s appeal from the decision of the 24 Commissioner of Social Security is DENIED. It is FURTHER ORDERED that judgment be 25 entered in favor of Defendant Commissioner of Social Security and against Plaintiff Lee Clarence 26 Fane, Jr. The Clerk of the Court is directed to CLOSE this action. 27 1 IS SO ORDERED. Ze (Se 2 Hated: _ October 3, 2024 OF 3 UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28