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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 KIMBERLY MALISSA M., Case No. 8:23-cv-00326- KES

12 Plaintiff,

MEMORANDUM OPINION AND

13 v.

ORDER

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

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18 I.

19 INTRODUCTION

20 On February 27, 2023, Plaintiff Kimberly Malissa M. (“Plaintiff”) filed a 21 Complaint for review of denial of social security disability benefits. (Dkt. 2.) 22 Plaintiff filed Plaintiff’s Brief (“PB”) under Rule 6 of the Supplemental Rules for 23 Social Security Actions under 42 U.S.C. § 405(g). (Dkt. 10.) Defendant Social 24 Security Administration (“SSA”) filed a responding Commissioner’s Brief (“CB”) 25 under Rule 7. (Dkt. 13.) Plaintiff filed a Reply Brief (“PRB”) on July 12, 2023. 26 (Dkt. 17.) 27 For the reasons stated below, the Commissioner’s decision denying benefits 28 is AFFIRMED. 1 II. 2 BACKGROUND 3 Plaintiff was born in January 1991. Administrative Record (“AR”) 236. In 4 2012 at age twenty-one, she began working in retail customer service at Macy’s. 5 AR 267, 278. She obtained a bachelor’s degree in communications from 6 California State University Fullerton in 2016. AR 33, 259. Between 2017 and 7 2019, she worked part-time as a home health aide. AR 267-68. By 2021, she was 8 working eight hours per week through In-Home Support Services (“IHSS”) as a 9 caretaker for her cousin with cerebral palsy. AR 35-36, 40. 10 On June 10, 2020, Plaintiff applied for disability insurance benefits (“DIB”) 11 and supplemental security income (“SSI”) under Titles II and XVI of the Social 12 Security Act, alleging a disability onset date of January 1, 2014, due to chronic 13 migraines, fibromyalgia, and other conditions. AR 22, 64, 236. On November 29, 14 2021, an Administrative Law Judge (“ALJ”) conducted a telephonic hearing at 15 which Plaintiff, who was represented by counsel, appeared and testified, along 16 with a vocational expert (“VE”). AR 30-45. 17 On April 14, 2022, the ALJ issued an unfavorable decision. AR 12-29. 18 First, the ALJ determined that Plaintiff’s last date insured (“LDI”) was June 30, 19 2015, such that Plaintiff needed to establish disability on or before that date to 20 receive DIB benefits.1 AR 17. While Plaintiff had worked as a home health aide 21 after her alleged onset date, the ALJ found that this work did not rise to the level of 22 substantial gainful activity. AR 17. 23

24 1 DIB Title II benefits provide benefits to insured workers based on their 25 earnings records. Benefits predating their application are potentially available if they establish a disability onset date before their LDI. In contrast, Title XVI SSI 26 benefits are need-based and consider whether claimants were disabled when they 27 applied; no pre-application benefits are available. See Wellington v. Berryhill, 878 F.3d 867, 872. 28 1 Next, the ALJ determined that Plaintiff suffered from the severe, medically 2 determinable impairments (“MDIs”) of “degenerative disk disease, cervical, 3 thoracic and lumbar spines, status post discectomy and fusion of lumbar spine [in 4 2012]; chronic migraines; chronic nausea, fibromyalgia; sciatica; [and] urethral 5 syndrome.” AR 18. The ALJ found that Plaintiff’s mental MDIs of depression 6 and anxiety disorder were not severe, consistent with the opinions of the State 7 agency mental health consultants. AR 18-19. 8 To determine Plaintiff’s residual functional capacity (“RFC”), the ALJ 9 considered Plaintiff’s testimony about the limiting effects of her symptoms (AR 10 20-21) as well as Plaintiff’s medical records (AR 21-22). The ALJ also considered 11 opinion evidence from State agency medical consultants C. Scott, M.D., and J. 12 Berry, M.D.. AR 22, citing AR 71, 87. The ALJ found that despite her MDIs, 13 Plaintiff had the RFC to perform light work with some limitations on reaching, 14 pushing, and pulling with her left arm, climbing, and doing postural activities. AR 15 19-20. 16 Plaintiff had no past relevant work. AR 22. Based on the RFC findings, the 17 VE’s testimony, and other evidence, the ALJ found that Plaintiff could work as a 18 counter attendant, cafeteria worker, or retail marker. AR 23. The ALJ concluded 19 that Plaintiff was not disabled. AR 24. 20 III. 21 ISSUES PRESENTED 22 Issue One: Whether the ALJ’s RFC findings are supported by substantial 23 evidence. (PB at 2.) Plaintiff contends that the ALJ erroneously concluded that 24 her migraine headaches “are well managed with conservative means” when, in 25 fact, she continued to have debilitating symptoms despite medication. (PB at 5, 26 citing AR 22.) Plaintiff further contends that the ALJ failed to account for “the 27 frequent and disruptive nature of Plaintiff’s migraines by including provisions in 28 the RFC for absenteeism, unscheduled breaks, or off-task behavior.” (PB at 5.) 1 Issue Two: Whether the ALJ erred by failing to discuss and/or discounting 2 the Third-Party Function Report completed by Plaintiff’s boyfriend, Steven Harris, 3 at AR 302-09. (PB at 2, 6.) 4 IV. 5 DISCUSSION 6 A. ISSUE ONE: Functional Limitations Caused by Plaintiff’s Migraines. 7 1. Relevant Evidence. 8 When asked in 2021 why she was unable to work fulltime, Plaintiff pointed 9 to “chronic nausea, my migraines, my body pain.” AR 36. She testified that she 10 could not keep her eyes open “for long periods of time if I have a migraine.” AR 11 36, 310. Nevertheless, she could do household tasks like caring for her dog, 12 cleaning, gardening, preparing salads, baking, washing laundry, and vacuuming. 13 AR 311-12, 314. She could go out independently, drive a car, shop 3-4 times per 14 week, play video games, and hike. AR 313-14; AR 425 (“hiking for exercise 4-5 x 15 week” in June 2019). She could pay attention “usually as long as I need,” follow 16 written instructions “well,” handles stress “well,” get along with authority figures 17 “well,” and walk 1-2 miles. AR 315-16. 18 Dr. Scott initially reviewed of the available medical evidence in July 2020. 19 AR 71. For purposes of Plaintiff’s DIB application, Dr. Scott found that she had 20 not established the existence of a severe, physical MDI before her LDI. AR 56. 21 For her SSI application, Dr. Scott considered Plaintiff’s condition in and after June 22 2020 and opined that Plaintiff could perform light work with some additional 23 physical limitations. AR 70-71. 24 Plaintiff alleged that her migraines worsened after Dr. Scott’s opinion. AR 25 84. On reconsideration in December 2020, Dr. Berry also found that Plaintiff had 26 not demonstrated a severe, physical MDI prior to her LDI. AR 87. For the SSI 27 claim, Dr. Berry assessed essentially the same RFC as Dr. Scott. AR 92-93. 28 Plaintiff cited the following records as establishing the functional limitations 1 associated with her migraines (PB at 3-6), summarized with context in roughly 2 chronological order below: AR 375, Plaintiff saw Richard Han, M.D., at Friends Medical Group in 3 379, 390, December 2014. She complained of cold symptoms with nausea, 4 394 “mild abdominal pain,” and “headache noted.” AR 396. Dr. Han administered a Z-pack. AR 396. 5

6 She returned in January 2015 with a persistent cough. She reported 7 taking “Maxalt for headaches.” AR 394. Dr. Han added propranolol for migraines. AR 394. In February 2015, Plaintiff was “improved 8 with headaches.” Dr. Han wrote “migraines HA stable with meds” 9 and “nausea improved.” AR 392.

10 In March 2015, she reported “resolvement of headache since on her 11 pills.” AR 390. Her next appointment with Dr. Han was not until August 2015, and the progress notes do not discuss headaches. AR 12 387-89. Similarly, she did not complain of headache pain in 13 October, November, or December 2015. AR 381, 383, 385.

14 In February 2016, Plaintiff reported “migraine headaches improved 15 but still present.” Dr. Han “restarted” her “on propranolol.” AR 379. Her next appointment about nine months later in November 16 2016 mentions “migraine headaches” with no current symptoms or 17 change in treatment. AR 377.

18 In January 2017, she reported “some headaches at times.” Dr. Han 19 to noted, “hx [history] of migraines.” AR 375. AR 1603 In 2017-2020, Plaintiff received primary care from Planned 20 Parenthood (“PP”). In September 2017, Plaintiff denied headaches. 21 AR 1605. In November 2017, she reported having “migraines with aura more often” and a cyst in her brain. She was “taking ibuprofen 22 with some relief.” AR 1601. PP ordered an MRI to evaluate the 23 brain cyst. AR 1603. AR 1299 In February 2018, Plaintiff had a neurologic consultation with Martin 24 J. Blackman, M.D. She reported a “history of pressure type 25 headaches associated with nausea.” Dr. Blackman reviewed the recent brain MRI, noting the cyst. AR 1298. He assessed, 26 “Migraine without aura, not intractable without status.” He also 27 wrote, “The patient’s headaches are not frequent enough to require preventative measures.” AR 1299. 28 1 AR 426 In October 2018, Plaintiff had gastric sleeve surgery. AR 422. At 2 follow-up appointments in March, June, and August 2019, she did not mention headache pain to her doctors. AR 422-30. 3 AR 1462, In November 2019, Plaintiff told PP that she was “seeing neurologist 4 1472 for migraine management” and “on multiple medications.” AR 1469. PP advised, “If she would like to change nausea medication 5 she should discuss with neurologist.” AR 1472. In December 2019, 6 she did a “primary care medication review” with PP. AR 1460. PP again noted that she was taking medications managed by a 7 neurologist for migraine headache with aura. AR 1462. 8 AR 808 In March 2020, Plaintiff reported that she was “on no medications for migraines.” AR 750. A PP examination on March 31, 2020, says 9 nothing about current headache symptoms. AR 814. On April 8, 10 2020, she again told PP that a neurologist was treating her “migraine with aura” with multiple medications. AR 806, 808. On April 16, 11 2020, she reported “uncontrolled migraine headaches … 17 12 headaches per month. Relieved with medications prescribed by Neuro but in process of working up why migraines are happening.” 13 AR 803. In June 2020, she denied headache. AR 785, 788. 14 Meanwhile, in February 2020, she attended physical therapy (“PT”) 15 to address left shoulder and arm pain after falling while playing with 16 a dog. AR 799. The PT records do not mention headaches. AR 740. Between January and May 2020, she did PT to address urinary 17 symptoms. AR 735, 755. She reported a history of migraines. AR 18 758. In December 2019, Plaintiff reported to Diabetes Associates Medical Group that she had “a history of migraine headaches but 19 …in the last 1 month she has had daily headaches.” AR 765. At a 20 later appointment on April 1, 2020, to address an ingrown toenail, Plaintiff did not report any pain other than toe pain. AR 747-48. 21 AR 1332, These are records from two 2020 visits with Usma Nasim, M.D. On 22 1333 July 8, 2020, Plaintiff reported that her “headache frequency/intensity is about the same.” Dr. Nasim’s plan was to 23 refill medications as needed and follow up in 3-4 months. AR 1333. 24 On October 27, 2020, Plaintiff again reported that her “headache 25 frequency/intensity is about the same.” AR 1332. Dr. Nasim’s plan 26 was to “wean off [tramadol] gradually” and “try Maxalt.” AR 1377, In July 2020, Plaintiff asked PP for “advice for disability paperwork 27 1400 due to migraine, fibromyalgia, and depression and anxiety.” She 28 1 complained of headache, and PP noted that she “has routine f/u with 2 neurologist who manages her headaches ….” AR 1398. PP suggested getting recommendations from her specialists about 3 applying for disability. AR 1400. 4 In October 2020, Plaintiff complained to PP of rib pain. AR 1376. 5 PP noted that migraines were “managed by neuro.” AR 1377. 6 AR 1666, Plaintiff visited Dr. Nasim in January 2021. She reported, 1667 “Headache frequency/intensity is about the same. About 3 7 times/week.” AR 1669. 8 In April 2021, she complained of “almost daily” headache and 9 “Botox [administered in February] did not help.” Dr. Nasim 10 continued to prescribe tramadol and provided samples of Ajovy with follow up in 1-2 months. AR 1667. 11

12 In July 2021, Plaintiff reported “migraine are better with Ajovy.” Dr. Nasim prescribed this drug and instructed Plaintiff to follow up 13 in 3-4 months. AR 1666. 14 2. Relevant Administrative Proceedings. 15 The ALJ found that Plaintiff’s migraines were a severe MDI. AR 18. The 16 ALJ first considered the medical evidence pre-dating Plaintiff’s LDI. The ALJ 17 concluded that the 2015 evidence (from Dr. Han summarized above) did not show 18 that Plaintiff’s migraines caused greater functional limitations than those assessed 19 in the RFC. AR 21. 20 Next, the ALJ considered Plaintiff’s later treating records. After 21 summarizing the medical evidence, the ALJ wrote as follows: 22 The claimant’s longitudinal treatment record is inconsistent with the 23 alleged severity of her medical conditions and asserted functional 24 limitations. The available objective medical records do not convey a 25 disabling pathology. Considering the claimant’s longitudinal clinical 26 presentation, frequency of treatment, type of and response to 27 treatment, and objective signs and findings, greater limitations than as 28 1 found herein are not warranted. 2 AR 22. Specific to migraines, the ALJ wrote, “It appears … migraine headaches 3 are well managed with conservative means.” AR 22. 4 Plaintiff’s counsel did not ask the VE what impact particular levels of 5 absenteeism might have on her employability. AR 44. The ALJ ultimately found 6 that Plaintiff could perform jobs classified as light, unskilled work. AR 23. 7 3. Analysis of Claimed Error. 8 First, Plaintiff argues that the evidence does not support the ALJ’s 9 conclusion that her headaches were “well managed” by medication. (PB at 5.) For 10 Plaintiff’s DIB claim (for which the relevant time is before her LDI of June 30, 11 2015), the only medical records show that after complaining of headaches to Dr. 12 Han and receiving medication, her headaches “improved” and became “stable.” 13 AR 392. Dr. Han considered her headaches resolved by March 2015. AR 390. 14 Her later appointment notes do not mention complaints of headache pain. AR 381- 15 85. 16 Looking at later records for Plaintiff’s SSI claim, Plaintiff mentioned 17 occasional headaches to her doctors in 2016 and 2017 (AR 675, 679, 1601), but in 18 February 2018, neurologist Dr. Blackman assessed that her “headaches are not 19 frequent enough to require preventative measures.” AR 1299. Plaintiff cites no 20 later 2018 or 2019 records from any treating neurologist. 21 In 2020 records, PP mainly notes that Plaintiff has a history of migraines for 22 which she received treatment from a neurologist. AR 803, 806, 808. The records 23 of that neurologist, Dr. Nasim, show that Plaintiff either reported no significant 24 changes in her symptoms despite months between appointments with routine 25 medication management (AR 1332-33, 1669) or a spike in symptoms followed by 26 improvement upon taking a new medication (AR 1666-67). 27 The ALJ did not err in concluding that these medical records show that 28 Plaintiff’s headache symptoms were sufficiently well managed to not cause a level 1 of distraction or absenteeism that would prevent fulltime work. 2 Next, Plaintiff argues that the ALJ should have included additional 3 limitations in her RFC, such as an allowance for some level of absenteeism or time 4 spent off-task, or explained why no such limitations were required. (PB at 5.) But 5 the ALJ did explain his reasoning; the ALJ found that Plaintiff’s headache pain, 6 when reported to doctors and treated with medication, improved enough not to 7 cause disabling limitations. This is consistent with the records summarized above 8 and the opinions of Drs. Scott and Berry who both opined that Plaintiff could 9 sustain fulltime light work. AR 71, 87. 10 Plaintiff also argues that upon finding migraines a severe MDI, the ALJ was 11 required to accommodate them somehow in the RFC. (PRB at 1-2.) But again, the 12 ALJ found that Plaintiff’s migraine pain did not limit her functionality to the 13 degree she alleged. The ALJ could reasonably interpret the medical evidence to 14 mean that if Plaintiff consistently followed the recommended treatment, her 15 migraine pain would not regularly cause her to need unscheduled breaks or extra 16 days off work. 17 For all these reasons, the ALJ’s RFC findings have substantial evidentiary 18 support. 19 B. ISSUE TWO: The ALJ’s Consideration of Lay Testimony. 20 1. Relevant Administrative Proceedings. 21 The ALJ discussed Plaintiff’s Adult Function Report (AR 310-17) but did 22 not discuss the Third-Party Function Report completed by Mr. Harris (AR 302-09). 23 AR 30. The ALJ, however, said twice that his decision was based on “careful 24 consideration of the entire record.” AR 17, 19. The ALJ also said that he found 25 the State agency consultants’ opinions persuasive. AR 22. Those opinions stated 26 repeatedly, “3rd pty [function report]– filled out by her boyfriend, consistent w/ 1st 27 [party function report].” See, e.g., AR 51, 53, 64. 28 1 2. Summary of the Parties’ Arguments. 2 Plaintiff makes two argues. First, Plaintiff contends that it was legal error 3 for the ALJ to fail to provide a “germane” reason for rejecting Mr. Harris’s 4 Function Report. (PB at 7.) Second, Plaintiff contends that the ALJ was required 5 to at least mention Mr. Harris’s Function Report to show that he considered it. (PB 6 at 6-8.) Plaintiff further contends that the ALJ’s error was not harmless because 7 Mr. Harris’s “statements and observations support far greater limitations than are 8 found in the ALJ’s RFC determination,” such as mental limitations so extreme that 9 they would prevent Plaintiff from doing even simple work. (PB at 8 (discussing 10 extreme forgetfulness).) 11 Defendant argues that the old rules requiring ALJs to articulate a “germane” 12 reason were superseded by new regulations. (CB at 6.) But even under the old 13 rules, any error was harmless because the ALJ’s reasons for discounting Plaintiff’s 14 testimony would apply equally to Mr. Harris’s Function Report. (CB at 7.) 15 3. Relevant Law. 16 Claims filed on or after March 27, 2017, are subject to the SSA’s revised 17 regulations for the evaluation of medical opinion evidence. See Revisions to Rules 18 Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 19 2017) (codified at 20 C.F.R. pts. 404 & 416). Under the new regulations, ALJs 20 must “articulate how persuasive” they find “all of the medical opinions from each 21 doctor or other source and explain” how they considered certain factors in reaching 22 their findings. See Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022). 23 Specifically, 20 C.F.R. § 404.1520c(a) says that ALJs “will articulate how we 24 considered the medical opinions … in your claim according to paragraph (b) of this 25 section.” Paragraph (b) directs ALJs to state how persuasive each medical opinion 26 is based on factors listed in paragraph (c). 20 C.F.R. § 404.1520c(b). Paragraph 27 (c) lists several factors that ALJs must consider when evaluating medical source 28 opinions. 20 C.F.R. § 404.1520c(c). The final paragraph then says that ALJs need 1 not articulate in their written decisions whether they found evidence from non- 2 medical sources persuasive or why, as follows: 3 (d) Evidence from nonmedical sources. We are not required to 4 articulate how we considered evidence from nonmedical sources 5 using the requirements in paragraphs (a)-(c) in this section. 6 20 C.F.R. § 404.1520c(d); see also 20 C.F.R. § 416.920c. 7 Per unpublished Ninth Circuit decisions, “It is an open question whether 8 ALJs are still required to consider lay witness evidence under the revised 9 regulations, although it is clear they are no longer required to articulate it in their 10 decisions.” Fryer v. Kijakazi, No. 21-36004, 2022 U.S. App. LEXIS 35651, at *7 11 n.1 (9th Cir. Dec. 27, 2022) (emphasis added). 12 4. Analysis. 13 While the parties disagree about the import of the new regulations, the Court 14 need not resolve their disagreement. Even under the old regulations, any error 15 would be harmless. The relevant question is not whether Mr. Harris described 16 Plaintiff’s abilities as more limited than the RFC. (PB at 8.) Rather, the relevant 17 question is whether Mr. Harris described Plaintiff’s abilities similarly to how 18 Plaintiff described them. An ALJ’s failure to provide reasons for rejecting lay 19 testimony is harmless if it is “inconsequential to the ultimate nondisability 20 determination.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 21 (9th Cir. 2008) (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 22 (9th Cir. 2006)). This standard is met if the lay testimony can be rejected for the 23 same reasons as the claimant’s testimony. Molina v. Astrue, 674 F.3d 1104, 1121 24 (9th Cir. 2012) (“[W]here the ALJ rejects a witness’s testimony without providing 25 germane reasons, but has already provided germane reasons for rejecting similar 26 testimony, we cannot reverse the agency merely because the ALJ did not clearly 27 link his determination to those reasons.”); Valentine v. Astrue, 574 F.3d 685, 694 28 (9th Cir. 2009) (because the ALJ gave valid reasons for rejecting the claimant’s 1 subjective complaints and “because the wife’s testimony was similar to such 2 complaints, it follows that the ALJ also gave germane reasons for rejecting her 3 testimony”). 4 Here, the two Function Reports are worded substantially identically.2 5 Compare AR 302-09 and AR 310-17. The ALJ discounted Plaintiff’s testimony as 6 inconsistent with the medical evidence and her activities. AR 18, 20. Plaintiff did 7 not challenge the ALJ’s reasons on appeal. These same reasons would apply 8 equally to Mr. Harris’s Function Report. Indeed, while Mr. Harris reported that 9 Plaintiff had extreme difficulty with memory, being so forgetful that she would 10 “lose her train of thought and forget what has been said” (PB at 6, citing AR 307), 11 during her period of claimed disability, she was able to obtain a college degree and 12 work in the trusted position of a home health aide. 13 Plaintiff argues that the Court cannot engage in harmless error analysis if the 14 ALJ did not explicitly say that he discounted Mr. Harris’s Function Report for the 15 same reasons as Plaintiff’s. (PRB at 4.) This argument conflicts with the above- 16 cited Ninth Circuit authority. See Molina, 674 F.3d at 1121 (“A reviewing court’s 17 refusal to consider whether the ALJ’s reasoning applies to undiscussed lay witness 18 testimony is contrary not only to our case law holding that errors are harmless if 19 they are inconsequential to the ultimate nondisability determination, but also to the 20 long-settled rule that we will not set aside the denial of a disability claim unless the 21 Secretary’s findings are not supported by substantial evidence in the record as a 22 whole.”) (citations omitted). 23 24

25 2 When asked what activities she enjoys with others, Plaintiff wrote, “Watch movie. Talk. Video games, kites.” AR 314. The Court initially understood 26 “kites” to refer to a kind of video game or gaming strategy. See https://en- 27 academic.com/dic.nsf/enwiki/730703 (defining kiting). But Mr. Harris said that Plaintiff enjoys “flying kites.” AR 306. 28 1 V. 2 CONCLUSION 3 For the reasons stated above, IT IS ORDERED that Judgment be entered 4 | AFFIRMING the decision of the Commissioner denying benefits. 5 6 7 | DATED: July 25, 2023 Whe Hous. Seott)

KAREN E. SCOTT

9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13