Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 1 of 14 Page ID #:2374

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 ELLEN S.,1 Case No. 5:20-cv-01940-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND

ORDER

14 KILOLO KIJAKAZI, Acting Commissioner of Social Security,2 15 Defendant. 16

17 I. PROCEDURAL HISTORY 18 Plaintiff Ellen S. (“Plaintiff”) filed a complaint seeking review of the decision 19 of the Commissioner of Social Security denying her application for Disability 20 Insurance Benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), the parties consented 21 to proceed before the undersigned United States Magistrate Judge and filed briefs 22 23 1 In the interest of privacy, this Order uses only the first name and the initial of the last name 24 of the non-governmental party in this case.

25 2 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security 26 Administration. See https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner's 27 Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in [their] official capacity, be the proper defendant”). 28 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 2 of 14 Page ID #:2375

1 addressing the disputed issues in this case. [Dkt. 16 (“Pltf’s. Br.”), Dkt. 20 (“Def. 2 Br.”).] The Court has taken the parties’ briefing under submission without oral 3 argument. For the reasons set forth below, the Court affirms the decision of the ALJ 4 and orders that judgment be entered accordingly. 5 II. ADMINISTRATIVE DECISION UNDER REVIEW 6 On March 31, 2017, Plaintiff filed an application for DIB alleging disability 7 beginning August 11, 2014. [Dkt. 14, Administrative Record (“AR”) 201-210.] In 8 her application, Plaintiff stated that she became disabled and unable to work due to a 9 combination of physical and mental impairments. Plaintiff’s application was 10 denied at the initial level of review and on reconsideration. [AR 121-128.] On 11 November 15, 2019, a hearing was held before Administrative Law Judge Deborah 12 Van Vleck (“the ALJ”). [AR 36-83.] On December 6, 2019, the ALJ issued an 13 unfavorable decision. [AR 15-30.] 14 The ALJ applied the five-step sequential evaluation process to find Plaintiff 15 not disabled. See 20 C.F.R. § 416.920(b)-(g)(1). At step one, the ALJ found that 16 Plaintiff had not engaged in substantial gainful activity since the alleged onset date. 17 [AR 18.] At step two, the ALJ found that Plaintiff suffered from the severe 18 impairments including obesity, status post gastric bypass and lap band procedures, 19 aggravating degenerative disc disease of the cervical and lumbar spine, bilateral 20 carpal tunnel syndrome, and bilateral arthritis of the hands with bilateral trigger 21 thumbs; epilepsy, controlled with medication. [AR 18.] At step three, the ALJ 22 determined that Plaintiff did not have an impairment or combination of impairments 23 that meets or medically equals the severity of one of the impairments listed in 24 Appendix I of the Regulations, (“the Listings”). [AR 23]; see 20 C.F.R. Pt. 404, 25 Subpt. P, App. 1. Next, the ALJ found that Plaintiff had the residual functional 26 capacity (“RFC”) to perform sedentary work (20 C.F.R. § 404.1567(a)), except that 27 she could engage in: 28 2 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 3 of 14 Page ID #:2376

no more than occasional pushing or pulling with the bilateral upper and 1 lower extremities. The claimant could [sic] no more than occasionally 2 engage in bilateral overhead reaching, but could frequently reach in other directions, frequently handle, and frequently finger, bilaterally. 3 The claimant could frequently climb ramps or stairs, but could never 4 climb ladders, ropes, or scaffolds. The claimant could frequently balance, stoop, kneel, or crouch, but could only occasionally crawl. The 5 claimant could never work in the presence of unprotected heights or 6 hazardous machinery, and could not operate a motor vehicle as part of her job duties. 7 [AR 23.] At step four, the ALJ found that Plaintiff was able to perform her past 8 relevant work as a Case Manager, as that job is generally and actually performed 9 (AR 29) and that she could perform other work in the national economy. [AR 29.] 10 The Appeals Council denied review of the ALJ’s decision on July 21, 2020. 11 [AR 1-4.] This action followed. 12

III. GOVERNING STANDARD

13 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 14 determine if: (1) the Commissioner’s findings are supported by substantial 15 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 16 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 17 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). 18 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 19 is such relevant evidence as a reasonable mind might accept as adequate to support a 20 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 21 2014) (internal citations omitted). 22 The Court will uphold the Commissioner’s decision when the evidence is 23 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d 24 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 25 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 26 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 27 reverse the Commissioner’s decision if it is based on harmless error, which exists if 28 3 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 4 of 14 Page ID #:2377

1 the error is “inconsequential to the ultimate nondisability determination, or if despite 2 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 3 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 4 omitted). 5 IV. DISCUSSION 6 At issue is whether the ALJ articulated legally sufficient reasons for rejecting 7 the subjective symptom testimony of Plaintiff and her spouse. [Pltf’s. Br. at 5-19.] 8 1. The ALJ Provided Adequate Reason to Reject Plaintiff’s Subjective 9 Testimony 10 Plaintiff first asserts that the ALJ failed to state sufficient reasons for 11 discounting her credibility. [Pltf.’s Br. at 5-17.] The Court disagrees. 12 A. Plaintiff’s Testimony 13 At the hearing on November 25, 2019, Plaintiff testified that she was 61 at the 14 time of the hearing and in the process of a divorce. [AR 44.] She stated that she 15 was five-foot four inches tall and she had recently lost a significant amount of 16 weight due to a gastric bypass surgery and related complication which prevented her 17 from eating solid foods. [AR 45-48.] 18 When asked about her former employment, Plaintiff testified that she received 19 her nursing degree in 1983. [AR 50.] Plaintiff most recently worked as a nurse case 20 manager for a health insurance company. However, she resigned from that 21 company in 2014 after a dispute over the company’s business practices. [AR 59.] 22 Plaintiff testified that it would be difficult for her to return to her past work as a case 23 manager due to “spinal stenosis in her neck” and she would have problems with 24 keyboarding and documentation because she has to “wear braces on both of her 25 hands” due to her carpal tunnel syndrome. [AR 62-63.] Plaintiff also explained that 26 she was recently diagnosed with spinal stenosis in her lower back. Plaintiff testified 27 that she learned of her diagnosis shortly before attending ComicCon in San Diego 28 with her daughter in 2018. [AR 65.] 4 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 5 of 14 Page ID #:2378

1 When asked about her experience attending ComicCon, Plaintiff testified she 2 attended for four days in July. She had a rough time in the beginning after she 3 tripped over her daughter’s suitcase at night, but the trip eventually improved. [AR 4 66.] She only attended the convention on Thursday and Sunday because she was 5 unable to procure tickets on the more popular Friday and Saturday dates. [AR 66- 6 67.] 7 With respect to her other impairments, Plaintiff also suffers from arthritis in 8 her joints, in addition to high blood pressure, anxiety, depression, and neuropathy in 9 her feet. [AR 71.] As treatment for her impairments, Plaintiff gets injections in her 10 right hand and injections in her back. However, she has not had carpal tunnel 11 release surgery. [AR 63, 76.] Plaintiff also takes medications for anxiety and 12 depression and sees a licensed marriage and family therapist. [AR 72.] 13 When asked about her daily activities, Plaintiff testified that she drives around 14 30 miles a week. [AR 76.] She does some chores around the house as well as 15 handles the grocery shopping and meal preparation. [AR 75-76.] She goes out to 16 eat with friends and she has attended ComicCon every year since 2014. [AR 77.] 17 On a weekly basis she goes to the movie theater with her daughter, however 18 sometimes she has difficulty sitting through the entire film. [AR 77.] Plaintiff also 19 takes care of her mother who suffers from dementia on several days during the 20 week. [AR 45, 78.] In doing so, she prepares meals and she helps her mother dress 21 and bathe. [AR 78.] On the days that she does not help her mother, Plaintiff rests. 22 [AR 77-78.] 23 B. Legal Standard 24 A two-step analysis applies at the administrative level when considering a 25 claimant’s credibility. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). First, 26 the claimant must produce objective medical evidence of an impairment that could 27 reasonably be expected to produce some degree of the symptom or pain alleged. Id. 28 at 1281-1282. If the claimant satisfies the first step and there is no evidence of 5 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 6 of 14 Page ID #:2379

1 malingering, the ALJ may reject the claimant’s testimony regarding the severity of 2 her symptoms only if she makes specific findings that include clear and convincing 3 reasons for doing so. Id. at 1281. The ALJ must “state which testimony is not 4 credible and what evidence suggests the complaints are not credible.” Mersman v. 5 Halter, 161 F. Supp. 2d 1078, 1086 (N.D. Cal. 2001) (internal citations and 6 quotation marks omitted) (“The lack of specific, clear, and convincing reasons why 7 Plaintiff’s testimony is not credible renders it impossible for [the] Court to 8 determine whether the ALJ’s conclusion is supported by substantial evidence”); 9 Social Security Ruling (“SSR”) 96-7p, 1996 SSR LEXIS 4. 10 An ALJ can consider many factors when assessing the claimant’s credibility. 11 See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). The ALJ can 12 consider the claimant’s reputation for truthfulness, prior inconsistent statements 13 concerning symptoms, other testimony by the plaintiff that appears less than candid, 14 unexplained or inadequately explained failure to seek treatment, failure to follow a 15 prescribed course of treatment, plaintiff’s daily activities, the plaintiff’s work 16 record, or the observations of treating and examining physicians. Smolen, 80 F.3d at 17 1284; Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). 18 In this case, the ALJ found that Plaintiff’s medically determinable 19 impairments could reasonably be expected to produce her alleged symptoms. [AR 20 24.] Therefore, absent affirmative evidence of malingering, the ALJ’s reasons for 21 rejecting Plaintiff’s testimony must be clear and convincing. 22 C. The ALJ’s Decision Sets Forth Several Clear and Convincing 23 Reason for Rejecting Plaintiff’s Credibility 24 Here, the ALJ gave several reasons to reject Plaintiff’s credibility including: 25 (1) Plaintiff’s symptoms were adequately controlled with generally conservative 26 treatment; (2) Plaintiff’s regular participation in a wide-range of activities was 27 inconsistent with disabling limitations; (3) Plaintiff admittedly resigned from work 28 due to work conflict and not disabling symptoms; and (4) inconsistencies between 6 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 7 of 14 Page ID #:2380

1 the objective medical evidence and Plaintiff’s allegations of disabling limitations 2 undermined her credibility. 3 First, the ALJ found that Plaintiff’s daily activities were inconsistent with her 4 allegations of disabling symptoms lasting in excess of 12 months. [AR 27.] The 5 ALJ’s conclusion here is supported by substantial evidence. Plaintiff’s daily 6 activities bear on her credibility if the level of activity is inconsistent with her 7 claimed limitations. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 8 Thus, an ALJ may rely on a Plaintiff’s daily activities to support an adverse 9 credibility determination only when those activities either “contradict [the 10 plaintiff’s] other testimony,” or “meet the threshold for transferable work skills”; 11 i.e., where she “is able to spend a substantial part of . . . her day performing 12 household chores or other activities that are transferable to a work setting.” Orn, 13 495 F.3d at 639. However, a claimant need not be “utterly incapacitated to be 14 eligible for benefits, and many home activities may not be easily transferable to a 15 work environment where it might be impossible to rest periodically or take 16 medication.” Id.; see Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The Ninth 17 Circuit has “repeatedly asserted that the mere fact that a plaintiff has carried on 18 certain daily activities, such as grocery shopping, driving a car, or limited walking 19 for exercise, does not in any way detract from her credibility as to her overall 20 disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). 21 Here, Plaintiff testified that she was independent in her activities of daily 22 living. [AR 27.] She drove about 30 miles per week, did grocery shopping, 23 prepared meals for her family, and did some household chores around the house. 24 [AR 76.] In addition to these daily activities, Plaintiff also travelled to San Diego 25 for Comic-Con every year since August 2014, watched movies at the theatre every 26 week, and she went to see shows at casinos. [AR 27, 77]. While Plaintiff added 27 that there were times when she had difficulty sitting through the entire movie, she 28 nonetheless was able to sit through them. [AR 77.] Moreover, the ALJ noted that 7 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 8 of 14 Page ID #:2381

1 Plaintiff took turns taking of her mother who has dementia on average every other 2 day. [AR 27, 78.] On days that she took care of her mother, Plaintiff prepared 3 meals and helped her mother dress and bathe. [AR 78.] 4 The ALJ found that these activities “pointed to a lesser degree of limitation 5 than [Plaintiff] otherwise alleged.” [AR 27.] This rationale was a clear and 6 convincing ground to find Plaintiff less than fully credible as the ALJ reasonably 7 concluded that Plaintiff’s activities were inconsistent with the presence of an 8 incapacitating or debilitating condition. See, e.g., Molina, 674 F.3d at 1113 (“Even 9 where those activities suggest some difficulty functioning, they may be grounds for 10 discrediting the claimant’s testimony to the extent that they contradict claims of a 11 totally debilitating impairment.”); Berry v. Astrue, 622 F.3d 1228, 1234-35 (9th Cir. 12 2010) (evidence that claimant’s self-reported activities suggested a higher degree of 13 functionality than reflected in subjective symptom testimony adequately supported 14 adverse credibility determination). Accordingly, the ALJ properly determined that, 15 to the extent Plaintiff alleged that she experienced disabling symptoms, her wide 16 range of self-reported activities rendered her allegations less than fully credible. 17 Second, the ALJ noted evidence that Plaintiff stopped working for reasons 18 “due to personal disagreements with the business practices of her prior employer 19 rather than due to any particular diagnosis or episode of symptom exacerbation.” 20 [AR 27.] Indeed, Plaintiff testified at the hearing that she resigned from her health 21 insurance job on the onset date because she did not want to pressure 22 Medicare/Medi-Cal recipients into inferior healthcare plans. [AR 59.] An ALJ may 23 properly discount a claimant’s subjective symptom allegations on these grounds. See 24 Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (holding that an ALJ 25 properly discounted a claimant’s credibility after finding that he stopped working 26 not because of disability, but because he had been laid off); Drouin v. Sullivan, 966 27 F.2d 1255, 1256, 1258 (9th Cir. 1992) (ALJ did not err in rejecting credibility partly 28 on the basis that claimant was laid off for business reasons, not impairments). The 8 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 9 of 14 Page ID #:2382

1 record supports the ALJ’s characterization that Plaintiff’s initial cessation of work 2 raises questions as to whether her alleged inability to work is related to her 3 impairments. Thus, this was a clear and convincing reason to find Plaintiff less 4 than fully credible. 5 Third, the ALJ’s determination that the objective evidence is inconsistent with 6 Plaintiff’s testimony regarding the severity and extent of her limitations is supported 7 by substantial evidence. The ALJ thoroughly discussed Plaintiff’s treatment history 8 and the medical evidence of her impairments. [AR 24-27.] After finding that the 9 degree of limitation alleged by Plaintiff was “not entirely consistent with the 10 evidence of record during the period at issue” (AR 24), the ALJ gave specific 11 examples on inconsistency. [AR 24-27.] For instance, the ALJ noted that Plaintiff 12 reported in her seizure questionnaire that she suffered from “one to seizures per 13 year,” yet the record suggested that she had not “suffered from any actual seizure 14 episodes since 2008”—years before the onset period. [AR 24, 26.] Further, the ALJ 15 found Plaintiff’s testimony that she “could generally walk as long as necessary, but 16 experienced pain when standing or walking for more than thirty minutes at a time” 17 inconsistent with examination findings that showed she consistently had a normal 18 gait, balance, and coordination, [E.g., AR 1463, 1466, 1470, 1486, 1510, 1518, 19 1526, 1563, 1572, 1597, 1609.] Additionally, the ALJ found Plaintiff’s testimony 20 that she could lift no more than a single bag of groceries inconsistent with 21 examination findings that showed she consistently had full (5/5) motor strength in 22 all extremities. [AR 27, 486, 1502, 1510, 1526, 1534, 1563, 1572, 1614, 1656, 23 1797, 1877.]; see Stout v. Berryhill, 696 F. App’x 838, 839 (9th Cir. 2017) 24 (unpublished) (“Additional substantial evidence, including notes stating that 25 [claimant] had a limited range of motion but normal gait, reflexes, and strength, 26 further supports the ALJ’s finding that the treatment notes in the record were 27 inconsistent with the claimant’s testimony”). 28 The ALJ was permitted to consider the lack of supporting medical evidence 9 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 10 of 14 Page ID #:2383

1 as a factor confirming her other reasons to reject Plaintiff’s credibility. See Rollins 2 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain testimony 3 cannot be rejected on the sole ground that it is not fully corroborated by objective 4 medical evidence, the medical evidence is still a relevant factor in determining the 5 severity of the claimant’s pain and its disabling effects.”); Social Security Ruling 6 96-7p (same). Accordingly, there is substantial evidence in the record for the ALJ’s 7 conclusion that the objective medical evidence does not support Plaintiff’s symptom 8 testimony. 9 Finally, the ALJ found that Plaintiff’s pain was “adequately controlled 10 through conservative treatment.” [AR 26.] Specifically, the ALJ pointed to a 11 statement from Plaintiff’s treating physician indicating that Plaintiff was “doing 12 well” with only conservative treatment. [AR 25, 1429, 1431.] In general, an ALJ 13 may properly discount a claimant’s subjective symptom allegations because of the 14 conservative nature of his or her treatment. See Tommasetti, 533 F.3d at 1039 15 (citing Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (stating that “evidence 16 of ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding 17 severity of an impairment”). 18 Here, although the record contained notations that Plaintiff received 19 “conservative treatment,” the record also demonstrates that Plaintiff underwent 20 gastric bypass and a lap-band revision surgery, and in 2018 Plaintiff received a 21 lumbar epidural injection. [AR 46-47, 2073.] In 2019, Plaintiff again reported 22 receiving some benefits from epidural injection, but she was also noted as 23 controlling her pain with Tylenol # 4 which is considered a narcotic pain 24 medication.3 [AR68, 2075.] Further, at the hearing, Plaintiff testified that she 25 received injections in her hands. [AR 68.] Given the totality of this treatment 26 evidence, the Court is not convinced that Plaintiff’s treatment could properly be 27 3 Tylenol #4 has Codeine and is considered a narcotic medication. See Tylenol with 28 Codeine #4, https://www.drugs.com/mtm/tylenol-with-codeine-4.html. 10 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 11 of 14 Page ID #:2384

1 characterized as conservative. 2 In general, the Ninth Circuit has viewed the use of narcotic pain medication 3 as non-conservative treatment, particularly when in conjunction with other 4 treatments that were also not conservative. See, e.g. Lapeirre-Gutt v. Astrue, 382 F. 5 App’x 662, 664 (9th Cir. 2010) (holding treatment consisting of “copious” amounts 6 of narcotic pain medication, occipital nerve blocks, and trigger point injections was 7 not conservative). While it appears that Plaintiff only occasionally used narcotic 8 medication for pain, she also occasionally received epidural injections, and she 9 underwent surgery for obesity which the ALJ found to be a severe impairment. In 10 the aggregate, Plaintiff’s use of prescribed narcotics coupled with epidural injections 11 and surgical interventions cannot fairly be described as “conservative” treatment. 12 Thus, this was not a clear and convincing reason to find Plaintiff less than fully 13 credible. 14 In sum, the ALJ articulated three reasons that were clear and convincing in 15 order to find that Plaintiff’s subject symptom allegations were less than fully 16 credible. To the extent that the ALJ provided another reason, based on the 17 conservative nature of Plaintiff’s treatment, which was legally insufficient, the error 18 was harmless. See Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1162 (9th Cir. 2008), 19 (holding that two invalid reasons to reject a claimant’s testimony were harmless 20 error where the ALJ articulated two other reasons that were valid). Thus, this issue 21 does not warrant reversal of the ALJ’s decision. 22 2. The ALJ’s Rejection of the Third Party Statement is Legally Supported 23 In her second issue, Plaintiff argues that the ALJ erred by failing to give 24 reasons for rejecting the testimony of her spouse. Plaintiff’s husband completed a 25 Third-Party function report provided by the Social Security Administration. [AR 26 1314-1321.] He described Plaintiff as having limited range of motion in her neck 27 and shoulders and arms. [AR 1314.] He noted that Plaintiff attends to her personal 28 care, she performs light housework, some shopping, some meal preparation, and she 11 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 12 of 14 Page ID #:2385

1 drives to care for her mother approximately 4 times a week. [AR 1315.] When 2 Plaintiff takes care of her mother, she does the food shopping and meal preparation. 3 [AR 1315.] Plaintiff’s sleep is affected by chronic discomfort and he also described 4 that Plaintiff has difficulty brushing her hair and bending to tie her shoes. [AR. 5 1315.] 6 In determining whether a claimant is disabled, an ALJ is required to consider 7 lay witness testimony concerning a claimant’s ability to work. Stout, 454 F.3d at 8 1053. Historically, the Ninth Circuit required an ALJ to give germane reasons for 9 discounting lay witness statements. Molina, 674 F.3d at 1111. However, recently 10 enacted revisions to the Social Security regulations state that for cases filed after 11 March 27, 2017, the ALJ need not articulate its consideration of such evidence in 12 the way it articulates consideration of medical sources. 20 C.F.R. § 404.1520c(d). 13 “Consequently, there is an argument that the ALJ is no longer required to provide 14 ‘arguably germane reasons’ for disregarding such statements, as the Ninth Circuit 15 has traditionally required.” Pamela M. v. Kijakazi , No. 20-cv-05479-TSH, 2021 16 U.S. Dist. LEXIS 187319, 2021 WL 4461546, at *11 (N.D. Cal. Sep. 29, 2021) 17 (noting that under amended regulations ALJs are “not required to articulate how 18 [they] considered evidence from nonmedical sources”); Singh v. Comm’r of Soc. 19 Sec., No. 2:20-cv-01467 AC, 2021 U.S. Dist. LEXIS 170491, 2021 WL 4078021, at 20 *7 (E.D. Cal. Sep. 7, 2021) (under new regulations, there is an argument that the 21 ALJ is no longer required to provide reasons germane to lay witnesses to reject their 22 testimony); Caleb H. v. Saul, 2020 U.S. Dist. LEXIS 243198, 2020 WL 7680556, at 23 *8 (E.D. Wash. Nov. 18, 2020) (stating that there is an argument that “the ALJ is no 24 longer required to provide reasons germane to lay witnesses to reject their 25 testimony” but not deciding the issue). However, at least one court has found that 26 “[a]lthough § 404.1520c(d) states the Commissioner is ‘not required to articulate 27 how we consider evidence from nonmedical sources’ using the same criteria for 28 medical sources, it does not eliminate the need for the ALJ to articulate his 12 Case 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 13 of 14 Page ID #:2386

1 consideration of lay-witness statements and his reasons for discounting those 2 statements.” Joseph M. R. v. Comm’r of Soc. Sec., No. 3:18-CV-01779-BR, 2019 3 U.S. Dist. LEXIS 153831, 2019 WL 4279027, at *12 (D. Or. Sept. 10, 2019); see 4 also S.F. v. Kijakazi, No. 8:20-cv-01810-SHK, 2021 U.S. Dist. LEXIS 241589 5 (C.D. Cal. Dec. 16, 2021). 6 The question of how the 2017 rule change impacts the ALJ’s obligations with 7 respect to addressing lay witness testimony is unanswered in the current caselaw. 8 Plaintiff does not address the rule change and seems to assume the pre-2017 9 regulation case law applies unaltered. Defendant takes the position that the ALJ was 10 not required to provide any reasons at all for discounting Plaintiff’s husband’s 11 testimony under the new regulations. [Def’s Br. at 12.] Defendant reasons that “the 12 revised regulations…do not place an articulation burden with respect to lay witness 13 testimony in all cases.” [Def’s Br. at 13.] 14 While acknowledging that the state of the law is somewhat unsettled, the 15 Court concludes that in this case the issue of the 2017 rule change need not be 16 reached because even under the old and more restrictive standard, the ALJ did not 17 err or, if she did, the error was harmless. This is true because the function report 18 submitted by Plaintiff’s spouse does not materially differ from Plaintiff’s own 19 subjective testimony, and therefore the rationale applied to discounting her 20 testimony could equally be applied to the lay witness testimony. Molina, 674 F.3d 21 at 1117 (applying harmless error to ALJ’s lack of articulation related to lay witness 22 statements); Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009) (ALJ’s valid 23 reasons for rejecting claimant’s testimony applied similarly to lay testimony). 24 Accordingly, there is no error, or harmless error at most, and there is no basis for 25 remand. 26 3. Constitutional Challenge 27 Finally, in a “Notice of New Authority,” filed after Defendant’s Opposition 28 brief, Plaintiff suggests that the decisions of the United States Supreme Court in 13 Cas@ 5:20-cv-01940-GJS Document 22 Filed 01/24/22 Page 14o0f14 Page ID #:2387

1 || Collins v. Yellen, 141 S.Ct. 1761, 1783-84, 210 L. Ed. 2d 432 (2021) and Seila Law 2 || LLC v. CFPB, 140 S. Ct. 2183, 2192, 207 L. Ed. 2d 494 (2020), as well as an 3 || opinion issued by the White House’s Office of Legal Counsel (“OLC”), cast doubt 4 || on the constitutionality of the statute under which Andrew Saul (who was 5 || Commissioner of Social Security when the Appeals Council denied his request for 6 || review) was appointed. 7 Numerous courts presented with this challenge have deemed it to be without 8 || merit or concluded that the claimant lacked standing. See Collins, 141 S. Ct. at 9 || 1802 (Kagan, J., concurring in part) (expressing doubt that the decision would 10 || require “the mass of SSA decisions . . . to be undone’); see, e.g., Standifird v. 11 || Kijakazi, No. 20CV1630-GPC(BLM), 2021 WL 5634177 (S.D. Cal. Dec. 1, 2021); 12 || Brinkman v. Kijakazi, No. 2:21-cv-00528-EJY, 2021 U.S. Dist. LEXIS 186705, at 13 || *6-7 (D. Nev. Sep. 29, 2021) (“Because Plaintiff offers nothing that traces the 14 || decision by the ALJ in her case to any alleged injurious conduct by the SSA 15 || Commissioner, she has not demonstrated traceability and her constitutional violation 16 || claim fails for lack of standing.”); Hester v. Comm’r of Soc. Sec., No. C21-0228- 17 || SKV, 2021 U.S. Dist. LEXIS 189112, at *5-6 (W.D. Wash. Sep. 30, 2021); Robles 18 || v. Comm’r of Soc. Sec., 2021 U.S. Dist. LEXIS 180304, 2021 WL 4285170, at *4 19 || n.6 (E.D. Cal. Sept. 21, 2021). Thus, remand on this issue is unwarranted. 20 Vv. CONCLUSION 21 For all of the foregoing reasons, IT IS ORDERED that the decision of the 22 || Commissioner finding Plaintiff not disabled is AFFIRMED. 23 IT IS SO ORDERED. 24 25 || DATED: January 24, 2022 26 7 GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

28 14