Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 1 of 13 Page ID #:631

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

DANIEL N.,1

11 Case No. 5:21-cv-00530-GJS Plaintiff 12 v. 13 MEMORANDUM OPINION AND KILOLO KIJAKAJI, Acting ORDER 14 Commissioner of Social Security, 15 Defendant.

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17 I. PROCEDURAL HISTORY 18 Plaintiff Daniel N. (“Plaintiff”) filed a complaint seeking review of the 19 decision of the Commissioner of Social Security denying his applications for 20 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 21 The parties filed consents to proceed before a United States Magistrate Judge [Dkts. 22 12 and 17] and briefs [Dkt. 19 (“Pl. Br.”) and Dkt. 22 (“Def. Br.”)] addressing 23 disputed issues in the case. The matter is now ready for decision. For the reasons 24 set forth below, the Court finds that this matter should be affirmed. 25

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27 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party in this case. 28 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 2 of 13 Page ID #:632

1 II. ADMINISTRATIVE DECISION UNDER REVIEW 2 Plaintiff filed applications for DIB and SSI on July 26, 2018, alleging 3 disability beginning on November 21, 2017. [Dkt. 14, Administrative Record 4 (“AR”) 15, 84, 110-11, 209-10.] Plaintiff’s applications were denied at the initial 5 level of review and on reconsideration. [AR 15, 112-16, 123-27.] A hearing was 6 held before Administrative Law Judge Joel Tracy (“the ALJ”) on June 1, 2020. [AR 7 15, 35-63.] 8 On June 24, 2020, the ALJ issued an unfavorable decision applying the five- 9 step sequential evaluation process for assessing disability. [AR 15-29]; see 20 10 C.F.R. §§ 404.1520(b)-(g), 416.920(b)-(g). At step one, the ALJ determined that 11 Plaintiff has not engaged in substantial gainful activity since the alleged onset date. 12 [AR 17.] At step two, the ALJ determined that Plaintiff has the following 13 impairments, which are severe in combination: hiatal hernia with gastroesophageal 14 reflux, carpal tunnel syndrome, residual effects of the left shoulder dislocations, 15 status-post left shoulder arthroscopic capsular plication with labral repair and 16 remplissage, and right shoulder glenhumeral instability. [AR 18.] At step three, the 17 ALJ determined that Plaintiff does not have an impairment or combination of 18 impairments that meets or medically equals the severity of one of the impairments 19 listed in Appendix I of the Regulations. [AR 20]; see 20 C.F.R. Pt. 404, Subpt. P, 20 App. 1. The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to 21 perform a range of light work (20 C.F.R. §§ 404.1567(b), 416.967(b)) and can 22 frequently push/pull, handle and finger with the bilateral upper extremities and 23 frequently reach overhead with the right upper extremity, but can never reach 24 overhead with the left, non-dominant, upper extremity or climb ladders, ropes or 25 scaffolds. [AR 21.] At step four, the ALJ determined that Plaintiff does not have 26 past relevant work. [AR 27.] At step five, based on the vocational expert’s 27 testimony, the ALJ found that Plaintiff could perform other jobs existing in 28 significant numbers in the national economy, including representative jobs such as 2 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 3 of 13 Page ID #:633

1 material distributor, cleaner, and assembler. [AR 28.] Based on these findings, the 2 ALJ found Plaintiff was not disabled through the date of the decision. [AR 29.] 3 The Appeals Council denied review of the ALJ’s decision on January 28, 4 2021. [AR 1-6.] This action followed. 5 Plaintiff raises the following issues challenging the ALJ’s findings and 6 determination of non-disability: 7 1. The ALJ failed to properly evaluate the medical opinion evidence. 8 2. The ALJ failed to properly evaluate the testimony of Plaintiff and 9 Plaintiff’s father. 10 Defendant asserts that the ALJ’s decision should be affirmed, or in the 11 alternative, remanded for further development of the record if the Court finds the 12 ALJ erred. 13 14 III. GOVERNING STANDARD 15 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 16 determine if: (1) the Commissioner’s findings are supported by substantial 17 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 18 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 19 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence … is 20 ‘more than a mere scintilla’ … [i]t means – and only means – ‘such relevant 21 evidence as a reasonable mind might accept as adequate to support a conclusion.’” 22 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v. 23 Comm’r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) (“[s]ubstantial evidence is 24 more than a mere scintilla but less than a preponderance”) (internal quotation marks 25 and citation omitted). 26 The Court will uphold the Commissioner’s decision when “the evidence is 27 susceptible to more than one rational interpretation.” See Molina v. Astrue, 674 28 F.3d 1104, 1110 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. §§ 3 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 4 of 13 Page ID #:634

1 404.1502(a), 416.902(a). However, the Court may review only the reasons stated by 2 the ALJ in the decision “and may not affirm the ALJ on a ground upon which he did 3 not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 4 reverse the Commissioner’s decision if it is based on harmless error, which exists if 5 the error is “inconsequential to the ultimate nondisability determination,” or if 6 despite the error, “the agency’s path may reasonably be discerned.” Brown-Hunter 7 v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 8 omitted). 9 10 IV. DISCUSSION 11 A. The Medical Evidence 12 Plaintiff contends the ALJ erred by finding the opinion of his orthopedist, 13 Stephen Chow, M.D., only “partially persuasive.” [Pl. Br. at 3-9.] 14 Dr. Chow began treating Plaintiff for left shoulder pain and instability in July 15 2017. [AR 454.] On November 21, 2017, Dr. Chow performed arthroscopic 16 capsular plication surgery with labral repair and remplissage on Plaintiff’s left 17 shoulder.2 [AR 462-63.] In December 2018, Dr. Chow reported that Plaintiff was 18 doing well and experiencing less pain. [AR 434.] In July 2018, Dr. Chow noted 19 that Plaintiff was still making progress after surgery but was reporting joint pain, 20 weakness, and tenderness and showed positive atrophy and dyskinesia on 21 examination. [AR 372, 374.] An MRI of Plaintiff’s left shoulder from August 2018 22 showed a partial-thickness articular surface tear of the supra spinatus tendon 23 proximal to its insertion, SLAP 3 tear superior/anterior glenoid labrum, low-lying 24 acromion, small subcoracoid fluid collection, and two surgical tacks within the 25 superior glenoid. [AR 359-60.] In January 2019, Dr. Chow diagnosed Plaintiff with 26 27 2 The Court notes that Plaintiff’s alleged onset date of disability, November 21, 28 2017, is the date Plaintiff underwent left shoulder surgery. [AR 84, 462.] 4 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 5 of 13 Page ID #:635

1 injury of brachial plexus, sequela and bilateral carpal tunnel syndrome. [AR 360.] 2 Dr. Chow opined that Plaintiff should not lift, push, pull, or carry more than 5 3 pounds or use his left arm for overhead activity and should remain off work for 4 three months. [AR 360.] 5 In February 2019, Dr. Chow completed an Upper Extremity Assessment. 6 [AR 468-72.] He reported that Plaintiff experiences numbness, weakness, shoulder 7 stiffness and constant pain in the left shoulder and bilateral hands and that Plaintiff’s 8 pain resulted in altered pain processing, decreased activity, difficulty with activities 9 of daily living, difficulty driving, sleep dysfunction, and easy fatigability. [AR 10 469.] Dr. Chow opined that Plaintiff could occasionally lift and carry up to 10 11 pounds and occasionally use the right upper extremity to handle objects, perform 12 fine manipulations, reach overhead or laterally, and push/pull, but he should 13 never/rarely use the left upper extremity to handle objects, perform fine 14 manipulations, reach overhead or laterally, or push/pull. [AR 470.] Dr. Chow also 15 opined that Plaintiff would frequently experience pain, fatigue, or other symptoms 16 severe enough to interfere with attention and concentration, would often need to 17 take unscheduled breaks to rest during a workday, and would likely be absent from 18 work more than three times a month. [AR 471-72.] 19 An ALJ must consider and evaluate the persuasiveness of all medical 20 opinions. See 20 C.F.R. §§ 404.1520c(b), 416.920c(b).3 An ALJ’s decision to 21 discredit any medical opinion must be supported by substantial evidence. See 22 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). In evaluating the 23 persuasiveness of a medical opinion, the ALJ must consider its “supportability” (i.e., 24

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26 3 For claims filed on or after March 27, 2017, the ALJ will not “defer 27 [to] or give any specific evidentiary weight, including controlling weight, to any medical opinion(s),” including those from a treating medical source. 20 C.F.R. §§ 28 404.1520c(a), 416.920c(a). 5 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 6 of 13 Page ID #:636

1 “the objective medical evidence and supporting explanations presented” by the 2 medical source to support the medical opinion) and its “consistency” with “evidence 3 from other medical sources and nonmedical sources in the claim.” 20 C.F.R. §§ 4 404.1520c(b)(2), (c)(1)-(2), 416.920c(b)(2), (c)(1)-(2). The ALJ may, but is not 5 required to explain how additional factors, such as the medical source’s 6 “relationship with the claimant,” “specialization,” “familiarity with the other 7 evidence in the claim,” and understanding of the “disability program’s policies and 8 evidentiary requirements” were considered. 20 C.F.R. §§ 404.1520c(b)(2), (c)(3)- 9 (c)(5), 416.920c(b)(2), (c)(3)-(c)(5). However, if two or more medical opinions on 10 the same issue are found “equally well-supported” and “consistent with the record,” 11 the ALJ must consider the additional factors. 20 C.F.R. §§ 404.1520c(b)(3), (c)(3)- 12 (c)(5), 416.920c(b)(3), (c)(3)-(c)(5); see also Woods, 32 F.4th at 792 (explaining 13 that when two or more medical opinions are equally persuasive, the ALJ will 14 articulate how the factors in addition to consistency and supportability were 15 considered). 16 Here, substantial evidence supports the ALJ’s evaluation of Dr. Chow’s 17 opinion. As to supportability, the ALJ found that Dr. Chow provided “very little 18 explanation of the evidence relied on in forming [his] opinions” about Plaintiff’s 19 limitations. [AR 26, 468-72]; see Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 20 2012) (holding that when a physician offers an opinion that is “brief, conclusory, 21 and inadequately supported by clinical findings,” the ALJ need not accept it) 22 (internal quotation marks and citation omitted). The ALJ noted that “Dr. Chow did 23 not document positive objective clinical or diagnostic findings to support” the 24 assessment of Plaintiff’s limitations. [AR 26.] When asked for clinical findings and 25 test results supporting his opinion, Dr. Chow simply checked boxes and referenced a 26 shoulder MRI and EMG, without explaining the basis for his conclusions. [AR 26, 27 468]; see Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (“[T]he ALJ may 28 permissibly reject check-off reports that do not contain any explanation of the bases 6 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 7 of 13 Page ID #:637

1 of their conclusions.”) (internal quotation marks and citation omitted). While the 2 ALJ accepted that Dr. Chow’s assessment was “partially supported” by his exam 3 findings (e.g., tenderness, dyskinesia, weakness, decreased range of motion, 4 numbness in hands, instability in the right shoulder, atrophy, and reported 5 symptoms), the ALJ noted that Dr. Chow prescribed “routine and conservative 6 treatment.” [AR 24, 26-27, 398, 400, 402.] After Plaintiff recovered from left 7 shoulder surgery, Dr. Chow recommended only physical therapy, home exercises, 8 and bracing. [AR 329, 337, 366, 378-79, 426, 429, 432, 435, 438, 484.] Plaintiff’s 9 conservative treatment was a proper basis for discounting Dr. Chow’s opinion of 10 Plaintiff’s limitations. See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) 11 (recognizing that “[a] conflict between treatment notes and a [ ] provider’s opinion[] 12 may constitute an adequate reason to discredit” the provider’s opinion); Tommasetti 13 v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008) (holding that the “incongruity” 14 between a doctor’s questionnaire responses and her medical records provides a 15 legitimate reason for rejecting that opinion of the claimant’s limitations); see also 16 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (“a conservative course of 17 treatment, including a recommendation to ‘avoid strenuous activities’ … [is] not the 18 sort of … recommendation[] one would expect to accompany a finding that [the 19 claimant] was totally disabled”). 20 The ALJ also found that Dr. Chow’s opinion was inconsistent with the 21 evidence from other medical sources. [AR 26]; see 20 C.F.R. § 404.1520c(c)(2), 22 416.920c(c)(2). The ALJ noted that the treatment records from Plaintiff’s other 23 doctors revealed “mostly normal review of his musculoskeletal systems” and 24 recommendations for only conservative treatment. [AR 24-27, 322, 347, 498-99, 25 534.] Dr. Ahluwalia consistently reported normal musculoskeletal and extremity 26 exams. [AR 24-25, 314, 347, 322, 514, 518, 523.] In July 2019, Dr. Liu, reported 27 that while Plaintiff had stiffness and decreased strength in his left shoulder and 28 instability in his right shoulder, there was no misalignment, swelling, erythema, 7 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 8 of 13 Page ID #:638

1 ecchymosis or muscle atrophy in the left shoulder. [AR 24-25, 498-99.] Dr. Liu 2 also noted that Plaintiff was progressing well after receiving a steroid injection. 3 [AR 499]; see Veliz v. Colvin, No. EDCV 14-0180-JPR, 2015 WL 1862924, at *8 4 (C.D. Cal. Apr. 23, 2015) (finding that a single steroid injection and medication did 5 not undermine ALJ’s finding that the claimant received conservative treatment); 6 Gonzales v. Comm’r of Soc. Sec. Admin., No. CV 14-0078-JPR, 2015 WL 685347, 7 at *7 (C.D. Cal. Feb. 18, 2015) (same). In March 2020, Dr. Hadidchi reported 8 normal motor strength in Plaintiff’s extremities, intact sensation, and no evidence of 9 clubbing, cyanosis, or edema. [AR 534-35.] While Plaintiff was briefly given a 10 prescription for Tramadol and Cyclobenzaprine, he was advised to stopped taking 11 those medications, as he reported that “his OTC medical marijuana works better to 12 control his pain.” [AR 536, 540.] Further, a May 2019 x-ray of Plaintiff’s left 13 shoulder showed no abnormalities, fracture or osseous injury. [AR 24, 26, 499, 14 506.] Thus, the ALJ’s decision to discount Dr. Chow’s opinion is supported by 15 substantial evidence. [AR 468-72]; see 20 C.F.R. §§ 404.1520c(c)(2), 16 416.920c(c)(2). Because the ALJ’s interpretation of the evidence is rational, the 17 Court must defer to that interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 18 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational 19 interpretation, it is the ALJ’s conclusion that must be upheld.”); Juarez v. Colvin, 20 No. CV 13-2506 RNB, 2014 WL 1155408, at *2 (C.D. Cal. Mar. 20, 2014) (“It is 21 not the Court’s role to second-guess an ALJ’s rational interpretation of the evidence 22 merely because plaintiff is able to proffer an alternative rational interpretation.”). 23 Plaintiff also challenges the ALJ’s reliance on the opinion of the medical 24 consultant, Dr. Rowland, who found that Plaintiff could perform light work with 25 exertional, postural, and manipulative limitations. [Pl. Br. at 8; AR 103-06.] 26 Plaintiff asserts that the ALJ was required to articulate how he considered the 27 factors in addition to supportability and consistency (i.e., treatment relationship with 28 Plaintiff, specialization, and other relevant factors) because he “ruled” Dr. 8 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 9 of 13 Page ID #:639

1 Rowland’s opinion and Dr. Chow’s opinion were “equally persuasive” by finding 2 both opinions “partially persuasive.” [Pl. Br. at 8-9]; see 20 C.F.R. §§ 3 404.1520c(b)(3), (c)(3)-(c)(5), 416.920c(b)(3), (c)(3)-(c)(5). The ALJ, however, did 4 not consider Dr. Rowland’s and Dr. Chow’s opinions to be equally persuasive. As 5 discussed, the ALJ found that Dr. Chow provided “very little explanation” for his 6 “conclusory” opinion, which was generally “not consistent with the other objective 7 evidence in the record.” [AR 26-27.] In contrast, the ALJ found that Dr. Rowland 8 supported her opinion with an explanation of the medical evidence. [AR 26, 103- 9 06.] The ALJ also adopted most of Dr. Rowland’s findings but assessed a slightly 10 more restrictive overhead reaching limitation.4 [AR 21, 26, 103-06.] Because the 11 ALJ did not find that Dr. Chow’s and Dr. Rowland’s opinions were “equally well- 12 supported” and “consistent with the record,” the ALJ did not err in failing to address 13 the factors in addition to supportability and consistency. 20 C.F.R. §§ 14 404.1520c(b)(3), 416.920c(b)(3). Thus, the ALJ’s consideration of the medical 15 opinion evidence is supported substantial evidence. 16 B. Plaintiff’s Subjective Symptom Testimony 17 Plaintiff contends the ALJ failed to properly consider his subjective symptom 18 testimony. [Pl. Br. at 10-11.] 19 In evaluating a claimant’s subjective symptom testimony, an ALJ must 20 engage in a two-step analysis. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 21 (9th Cir. 2007); 20 C.F.R. §§ 404.1529(c), 416.929(c). First, the ALJ must 22 determine whether the claimant has presented objective medical evidence of an 23 underlying impairment which “could reasonably be expected to produce the pain or 24 25 26 4 Dr. Rowland opined that Plaintiff’s ability to reach overhead with the upper 27 extremities bilaterally was “limited,” whereas the ALJ found that Plaintiff could “never” reach overhead with the left upper extremity and could “frequently 28 reach overhead with the right upper extremity. [AR 21, 105.] 9 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 10 of 13 Page ID #:640

1 other symptoms alleged.” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. 2 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if the claimant 3 meets the first step and there is no evidence of malingering, “‘the ALJ can reject the 4 claimant’s testimony about the severity of her symptoms only by offering specific, 5 clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036; 6 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “At the same time, 7 the ALJ is not required to believe every allegation of disabling pain, or else 8 disability benefits would be available for the asking, a result plainly contrary to 42 9 U.S.C. § 423(d)(5)(A).” Molina, 674 F.3d at 1112 (citation and internal quotations 10 omitted). 11 At the hearing, Plaintiff testified that he has had multiple bilateral shoulder 12 dislocations. [AR 43-44.] Although he had left shoulder surgery in November 13 2017, he reported intense weakness, pain and numbness in his left hand and forearm. 14 [AR 44.] Plaintiff also stated that he has right shoulder dislocations “very often,” 15 experiences numbness in his right hand, is unable to concentrate due to pain and 16 depression, and has difficulty with activities such as tying his shoes, dressing, 17 bathing, reading, and driving. [AR 45-47, 50-51.] 18 The ALJ rejected Plaintiff’s testimony to the extent it conflicted with the 19 RFC. [AR 22.] The ALJ first found that Plaintiff’s testimony was unsupported by 20 the objective medical evidence of record. [AR 22-23.] The ALJ may consider 21 objective medical evidence when assessing a claimant’s testimony. See 20 C.F.R. 22 §§ 404.1529(c)(2), 416.929(c)(2); Carmickle, 533 F.3d at 1161. Here, although the 23 record shows that Plaintiff underwent left shoulder surgery and has residual effects 24 of left shoulder dislocations, right shoulder glenhumeral instability, and carpal 25 tunnel syndrome, the ALJ noted that treating providers routinely observed mostly 26 normal review of musculoskeletal systems, as discuss in detail above. [AR 23-25, 27 314, 347, 322, 498-99, 514, 518, 523, 534-35.] While the ALJ acknowledged that 28 Plaintiff’s left shoulder MRI and EMG study showed some abnormalities, the ALJ 10 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 11 of 13 Page ID #:641

1 also noted that a May 2019 x-ray of Plaintiff’s left shoulder was normal. [AR 24, 2 506.] The ALJ’s conclusion that Plaintiff’s testimony regarding his chronic, 3 debilitating pain and other symptoms was not entirely consistent with the medical 4 evidence is supported by substantial evidence. See 20 C.F.R. §§ 404.1529(c)(2), 5 416.929(c)(2). Although the medical evidence could give rise to inferences more 6 favorable to Plaintiff, the ALJ’s interpretation was rational and should be upheld. 7 See Burch, 400 F.3d at 680. 8 The ALJ further found Plaintiff’s testimony unpersuasive because of the 9 “routine and conservative treatment” he received after his left shoulder surgery. 10 [AR 25]; see Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (stating that 11 “evidence of ‘conservative treatment’ is sufficient to discount a claimant’s 12 testimony regarding severity of an impairment”); see also Meanel v. Apfel, 172 F.3d 13 1111, 1114 (9th Cir. 1999) (rejecting subjective pain complaints where petitioner’s 14 “claim that she experienced pain approaching the highest level imaginable was 15 inconsistent with the ‘minimal, conservative treatment’ that she received”). As 16 discussed above, after Plaintiff recovered from his left shoulder surgery, Plaintiff’s 17 treatment included primarily physical therapy, home exercises, bracing, OTC 18 medical marijuana, and a single steroid injection in his left shoulder. [AR 23-25, 19 398, 400, 402, 499, 500, 536-40]; see, e.g., Hanes v. Colvin, 651 F. App’x 703, 705 20 (9th Cir. 2016) (explaining that the claimant’s “conservative treatment plan, which 21 consisted primarily of minimal medication, limited injections, physical therapy, and 22 gentle exercise” supported rejection of the claimant’s testimony); Wilson v. Colvin, 23 583 F. App’x 649, 651 (9th Cir. 2014) (sporadic use of only medical marijuana for 24 pain was a specific, clear and convincing reason for rejecting complaints of 25 disabling pain). There was no recommendation for additional surgeries or more 26 aggressive forms of treatment. Thus, the ALJ’s reasons for discounting Plaintiff’s 27 testimony regarding the severity of his symptoms were specific, clear, and 28 convincing and supported by substantial evidence. See 20 C.F.R. §§ 11 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 12 of 13 Page ID #:642

1 404.1529(c)(3); 416.929(c)(3). 2 C. Lay Witness Testimony 3 Plaintiff contends that the ALJ erred by failing to give adequate reasons for 4 rejecting the testimony of his father, William N. [Pl. Br. at 11-12.] 5 “In determining whether a claimant is disabled, an ALJ must consider lay 6 witness testimony concerning a claimant’s ability to work.” Stout v. Comm’r, Soc. 7 Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). An ALJ may discount lay 8 witness testimony by providing reasons germane to each witness.5 See Dodrill v. 9 Shalala, 12 F.3d 915, 919 (9th Cir. 1993); see also Lewis v. Apfel, 236 F.3d 503, 10 511 (9th Cir. 2001). However, “an ALJ’s failure to comment upon lay witness 11 testimony is harmless where ‘the same evidence that the ALJ referred to in 12 discrediting [the claimant’s] claims also discredits [the lay witness’s] claims.’” 13 Molina, 674 F.3d at 1122 (quoting Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 14 2011)); Valentine v. Comm’r, 574 F.3d 685, 694 (9th Cir. 2009) (concluding that an 15 ALJ’s valid reasons to reject claimant’s testimony also applied to the lay 16 statements). 17 Here, William N. testified that Plaintiff experiences daily pain and is unable 18 to work or perform household activities. [AR 53-56.] As William N.’s testimony 19 was substantially similar to Plaintiff’s testimony, the ALJ’s failure to provide 20 reasons for rejecting William N.’s testimony was harmless error. [AR 45-47, 53- 21 56]; see Molina, 674 F.3d at 1117 (the lack of error in articulating a reason to reject 22

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24 5 Regulations applicable to DIB and SSI claims filed after March 27, 25 2017, provide that an ALJ is “not required to articulate how [he] considered evidence from nonmedical sources.” 20 C.F.R. §§ 404.1520c(d), 416.920c(d). The 26 Ninth Circuit has not yet addressed whether the new regulations eliminate the need 27 for the ALJ to articulate his reasons for discounting lay witness statements. See Robert U. v. Kijakazi, No. 3:20-cv-1817-SI, 2022 WL 326166, at *7 (D. Or. Feb. 3, 28 2022). 12 Case 5:21-cv-00530-GJS Document 23 Filed 12/16/22 Page 130f13 Page ID #:643

1 || lay witness statements was harmless); Valentine, 574 F.3d at 694. 2 Accordingly, the ALJ’s decision must be affirmed. 4 Vv. CONCLUSION 5 For all of the foregoing reasons, IT IS ORDERED that the decision of the 6 || Commissioner finding Plaintiff not disabled is AFFIRMED. 8 IT IS SO ORDERED. 10 |} DATED: December 16, 2022 Up 12 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13