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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 RICHARD BERNARD C., Case No. 2:23-cv-00199-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 January 11, 2023, Plaintiff Richard Bernard C. (“Plaintiff”) filed a 21 Complaint for review of denial of social security disability benefits. (Dkt. 1.) 22 Plaintiff filed Plaintiff’s Brief (“PB”) under the Rule 6 of the Supplemental Rules 23 for Social Security Actions at 42 U.S.C. § 405(g). (Dkt. 13.) On August 17, 2023, 24 Defendant filed a responding Commissioner’s Brief (“CB”) under the Rule 7. 25 (Dkt. 19.) Plaintiff neither replied nor sought an extension within 14 days, as 26 required by Rule 8. 27 For the reasons stated below, the Commissioner’s decision denying benefits 28 is AFFIRMED. 1 II. 2 BACKGROUND 3 In May 2020, Plaintiff applied for child disability benefits1 (“DIB”) pursuant 4 to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and Supplemental 5 Security Income (“SSI”) under Title XVI, 42 U.S.C. § 1381 et seq., alleging 6 disability beginning on January 23, 2001. Administrative Record (“AR”) 324, 7 336-37. On September 13, 2021, an Administrative Law Judge (“ALJ”) conducted 8 a telephonic hearing at which Plaintiff, who was represented by counsel, appeared 9 and testified, along with a vocational expert (“VE”). AR 131-157. 10 On October 28, 2021, the ALJ issued an unfavorable decision. AR 25-42. 11 The ALJ used the mandatory five-step evaluation process. At step two, the ALJ 12 found that Plaintiff had the following severe, medically determinable impairments 13 (“MDIs”): “autistic disorder, learning disorder not otherwise specified, pervasive 14 developmental disorder not otherwise specified, and depressive disorder.” AR 28. 15 At step four, the ALJ found that despite these MDIs, Plaintiff retained the residual 16 functional capacity (“RFC”) to perform work at all exertional levels with the 17 following mental limitations: 18 [Plaintiff] can understand, remember, and carry out simple, routine, 19 and repetitive instructions and tasks. [Plaintiff] is limited to isolated 20 work, which involves no direct public contact and occasional direct 21 co-worker and supervisor interaction and no group tasks. (There is 22 no limit on incidental contact.) [Plaintiff] should perform only low- 23 stress work, which is defined as requiring only few changes in work 24 setting, occasional changes in work duties and no work on a moving 25 1 An adult who is 18 years or older and has a disability before age 22 may 26 file for child disability benefits. 20 C.F.R. § 404.350(a)(5). Accordingly, Plaintiff 27 must establish that he became disabled prior to January 23, 2020, the day he attained 22 years of age. AR 324. 28 1 conveyor belt. He cannot travel as part of work duties. 2 AR 31-32. 3 Based on this RFC, the VE’s testimony, and other evidence, the ALJ found 4 that Plaintiff could work as a hospital cleaner, kitchen helper, and cafeteria 5 attendant. AR 37. The ALJ concluded that Plaintiff was not disabled. AR 38. 6 III. 7 ISSUES PRESENTED 8 Issue One: Whether the ALJ erred in discounting Plaintiff’s subjective 9 symptom testimony. (PB at 7.) 10 Issue Two: Whether the ALJ erred in discounting the lay testimony of 11 Plaintiff’s stepfather, Mr. W. (PB at 15.) 12 IV. 13 DISCUSSION 14 A. ISSUE ONE: Plaintiff’s Testimony. 15 1. Relevant Law. 16 In assessing a claimant’s subjective testimony, the ALJ conducts a two-step 17 analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The ALJ must 18 first determine “whether the claimant has presented objective medical evidence of 19 an underlying impairment which could reasonably be expected to produce the pain 20 or other symptoms alleged.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 21 1090, 1102 (9th Cir. 2014) (cleaned up). If the claimant does so, and there is no 22 affirmative evidence of malingering, then the ALJ can reject the claimant’s 23 testimony as to the severity of the symptoms “only by offering specific, clear and 24 convincing reasons for doing so.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 25 Cir. 2008) (cleaned up). “These findings, properly supported by the record, must 26 be sufficiently specific to allow a reviewing court to conclude the adjudicator 27 rejected the claimant’s testimony on permissible grounds and did not arbitrarily 28 discredit a claimant’s testimony regarding pain.” Bunnell v. Sullivan, 947 F.2d 1 341, 345-346 (9th Cir. 1991) (en banc). 2 2. Relevant Administrative Proceedings. 3 The ALJ summarized Plaintiff’s hearing testimony (AR 138-42) and 4 Function Report (AR 374-81). AR 32. The ALJ found that Plaintiff’s testimony 5 about the “intensity, persistence and limiting effects” of his symptoms was 6 inconsistent with his “longitudinal treatment record.” AR 33. The ALJ also found 7 that Plaintiff’s “claims of debilitated functioning are not consistent with 8 contemporaneous reports of actual functioning” and “his level of functioning is not 9 as limiting as alleged.” AR 33. 10 3. Analysis of Claimed Error. 11 First, Plaintiff contends that the ALJ discounted his testimony based solely 12 on the lack of supporting, objective, medical evidence. (PB at 11, 13-14.) This 13 argument misstates the record. The ALJ also relied on inconsistency between 14 Plaintiff’s testimony and his “actual functioning,” i.e., his reported activities. AR 15 33. The ALJ cited evidence that Plaintiff worked as receptionist at the Antelope 16 Valley College Art Gallery and attended community college, pursuing a bachelor’s 17 degree in kinesiology with some special education accommodations. AR 30, 33. 18 According to the ALJ, he had “relatively good activities of daily living,” that 19 included attending classes, hanging out with friends, going to the supermarket 20 unaccompanied, having a driver’s license,2 using a computer, reading, preparing 21 simple meals, completing some household chores, playing video games, going to 22 the gym, caring for his dog, and using public transportation. AR 30-33, citing 23 Plaintiff’s Function Report and hearing testimony. 24 Second, Plaintiff contends that the ALJ failed to identify sufficiently what 25 testimony was inconsistent with the medical evidence, precluding meaningful 26

27 2 In June 2020, Plaintiff did not have a driver’s license. AR 377. By the hearing in September 2021, he had a driver’s license. AR 138. 28 1 review of the ALJ’s reasoning. (PB at 12-13.) But the ALJ contrasted Plaintiff’s 2 testimony on several topics with countervailing medical evidence. For example, 3 the ALJ noted that Plaintiff “reported difficulty memorizing things due to a short 4 attention span and that he must have things explained in simple terms to 5 understand.” AR 29, citing AR 379 (“I do better with one- to two-step visual 6 directions.”). The ALJ contrasted this testimony with objective testing that showed 7 Plaintiff had “normal immediate verbal memory, which was an area of particular 8 strength, and a working memory score of 99 upon psychological testing in 2011.” 9 AR 29, citing AR 447-48. The ALJ also cited Plaintiff’s testimony that “he can 10 only pay attention for five to seven minutes at a time if he is not interested and 11 only up to twenty minutes at a time if he is interested, does not finish what he 12 starts, and must have only simple and concrete directions that must be repeated at 13 times.” AR 30, citing AR 379. In contrast, psychological testing in 2009 “showed 14 low average to average attention and concentration skills with some variability 15 within tasks, which was determined to show intact abilities in this area.” AR 30, 16 citing AR 464-65. The ALJ contrasted Plaintiff’s testimony that he handles stress 17 by becoming so anxious or frustrated that he may “walk away” (AR 380) with 18 evidence that he could “complete lengthy homework assignments, such as doing a 19 15-page workbook and writing in a daily journal.” AR 31, citing AR 764, 773. 20 These are just some examples, but they sufficiently explain and support the ALJ’s 21 finding of inconsistency. 22 B. ISSUE TWO: Mr. W.’s Testimony. 23 1. Relevant Administrative Proceedings. 24 Mr. W. also completed a Function Report. AR 366-73. The ALJ considered 25 that report and assessed Mr. W.’s testimony as internally inconsistent, as follows: 26 [Plaintiff’s] stepfather also reported that [Plaintiff] is able to play 27 video games for two to three hours per day, attend church and school 28 regularly, and does not require accompaniment or reminders to go 1 places, yet also inconsistently reported that [Plaintiff] has difficulty 2 following directions and can only pay attention for a few minutes at a 3 time. 4 AR 36. 5 2. Analysis. 6 The parties disagree over what ALJs must say in their written opinions to 7 discredit lay testimony. Plaintiff contends that the ALJ was required to “give 8 reasons that are germane” but failed to do so. (PB at 15.) Defendant counters that 9 new regulations (cited in the ALJ’s opinion at AR 36) relieve ALJs from the old 10 requirement to articulate germane reasons. (DB at 17); see Fryer v. Kijakazi, 2022 11 U.S. App. LEXIS 35651, at *7 n.1 (9th Cir. Dec. 27, 2022) (“It is an open question 12 whether ALJs are still required to consider lay witness evidence under the revised 13 regulations, although it is clear they are no longer required to articulate it in their 14 decisions.”); John A.O. v. Kijakazi, 5:21-cv-01900-AFM, 2023 U.S. Dist. LEXIS 15 5556, *25 (C.D. Cal. Jan. 11, 2023) (collecting unpublished district court cases on 16 both sides). 17 The Court need not resolve this disagreement. Even under the old 18 regulations, an ALJ’s failure to provide reasons for rejecting lay testimony is 19 harmless if it is “inconsequential to the ultimate nondisability determination.” 20 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). 21 This standard is met if the lay testimony can be rejected for the same reasons as the 22 claimant’s testimony. Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) 23 (“[W]here the ALJ rejects a witness’s testimony without providing germane 24 reasons, but has already provided germane reasons for rejecting similar testimony, 25 we cannot reverse the agency merely because the ALJ did not clearly link his 26 determination to those reasons.”); Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 27 2009) (holding that because the ALJ gave valid reasons for rejecting the claimant’s 28 subjective complaints and “because the wife’s testimony was similar to such 1 | complaints, it follows that the ALJ also gave germane reasons for rejecting her 2 | testimony”’). 3 Here, the ALJ’s reasons for discrediting Plaintiff's testimony (i.e., 4 | inconsistency with the medical evidence and his activities) would apply equally to 5 | Mr. W.’s Function Report. Plaintiff has failed to carry his burden on appeal of 6 | demonstrating prejudicial error. 7 V. 8 CONCLUSION 9 For the reasons stated above, IT IS ORDERED that Judgment be entered 10 | AFFIRMING the decision of the Commissioner denying benefits. 11 12 13 | DATED: September 12, 2023 ay 14 rou. Sept)

KAREN E. SCOTT

15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28