1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RUBEN L., ) NO. CV 19-9052-E ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION ) 14 ANDREW SAUL, Commissioner of ) Social Security, ) 15 ) Defendant. ) 16 ____________________________________) 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on October 21, 2019, seeking review 21 of the Commissioner’s denial of benefits. On November 22, 2019, the 22 parties consented to proceed before a United States Magistrate Judge. 23 Plaintiff filed a motion for summary judgment on March 27, 2020. 24 Defendant filed a motion for summary judgment on June 2, 2020. 25 Plaintiff filed an opposition to Defendant’s motion for summary 26 judgment on June 17, 2020 (“Plaintiff’s Opposition”). The Court has 27 taken the motions under submission without oral argument. See L.R. 28 7-15; “Order,” filed October 24, 2019. 1 BACKGROUND 2 3 In March of 2015, when Plaintiff was 16 years old, his mother 4 filed an application for Supplemental Security Income on his behalf 5 (Administrative Record (“A.R.”) 19, 509-15, 540). The application 6 asserts disability since January 31, 2012, based on autism, a learning 7 disorder and “half of [Plaintiff’s] brain [being] not fully 8 develop[ed]” (id.). While this application was pending, Plaintiff 9 turned 18 years of age (A.R. 20, 24). 10 11 An Administrative Law Judge (“ALJ”) reviewed the record and heard 12 testimony from Plaintiff, Plaintiff’s mother, Plaintiff’s brother, a 13 medical expert and a vocational expert (A.R. 19-38, 45-168). The ALJ 14 found that Plaintiff has a severe learning disorder, not otherwise 15 specified (A.R. 24, 32-33). The ALJ found that Plaintiff did not meet 16 or equal a listed impairment set forth at 20 C.F.R. Pt. 404, Subpt. P, 17 App. 1 (the “Listings”), either before or after he turned 18 (A.R. 25- 18 34 (adopting, inter alia, medical expert’s opinion at A.R. 59-61 for 19 the period before Plaintiff turned 18)). The ALJ also found that, 20 after Plaintiff turned 18, he has had the residual functional capacity 21 to perform work at all exertion levels, limited to work involving: 22 (1) simple routine tasks; (2) occasional contact with supervisors; and 23 (3) brief and superficial contact with the public and coworkers. See 24 A.R. 34-36 (giving moderate weight to the opinion of the psychological 25 consultative examiner). The ALJ identified certain jobs Plaintiff 26 assertedly could perform. See A.R. 37 (adopting vocational expert 27 testimony at A.R. 129-30). Thus, the ALJ denied benefits (A.R. 38). 28 The Appeals Council denied review (A.R. 1-3). 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the Administration’s decision to determine if: (1) the Administration’s 5| findings are supported by substantial evidence; and (2) the 6| Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 9] 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such 10] relevant evidence as a reasonable mind might accept as adequate to 11] support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 12] (1971) (citation and quotations omitted); see also Widmark v. 13] Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. But the 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. 22 23|| Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted). 25] /// 26] /// /// 28] ///

1 DISCUSSION 2 3 Plaintiff argues that the ALJ erred in: (1) evaluating whether 4) Plaintiff met the criteria for child disability; (2) evaluating 5] Plaintiff’s testimony and statements; (3) evaluating the testimony of Plaintiff’s mother and brother; (4) failing to include all of 7| Plaintiff's alleged limitations in the ALJ’s residual functional capacity assessment; and (5) failing to include all of Plaintiff’s alleged limitations in the hypothetical questioning of the vocational 10] expert. See Plaintiff's Motion, pp. 3-11; Plaintiff’s Opposition, pp. 11] 2-10. 12 13 After consideration of the record as a whole, Plaintiff's motion 14] is denied and Defendant’s motion is granted. The Administration’s 15] findings are supported by substantial evidence and are free from 16] material* legal error. Plaintiff’s contrary arguments are unavailing. 17 18] I. Summary of the Record 19 20 A. Plaintiff’s Medical Records 21 22 The medical records, which are relatively sparse, reflect 23| diagnoses of, inter alia, “anxiety state unspecified” in April of 2010, learning problems at school in August of 2012, lack of normal 25 26) © The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. 28] astrue, 640 F.3d 881, 886-88 (9th Cir. 2011).

1 development (unspecified) and development delay (unspecified) in 2 September of 2012, attention deficit without hyperactivity in October 3 of 2012, autistic disorder (active) and autonomic brain abnormality in 4 June of 2015 (A.R. 672, 858). 5 6 According to a progress note from June of 2015, Plaintiff’s 7 mother stated that Plaintiff had autism with a history of abnormal 8 brain/missing corpus callosum midbrain, and she requested a 9 “neurodevelopment” follow-up (A.R. 878). Examination findings 10 reportedly were normal (A.R. 878-79). Plaintiff was diagnosed with 11 learning problems at school, autonomic brain abnormality and autistic 12 disorder (active) (A.R. 879). Plaintiff was referred to neurology 13 (A.R. 880). 14 15 A neurology consultation note from July of 2015 reported that 16 Plaintiff complained of attention deficit and a learning disability 17 (A.R. 875). An electroencephalography report from the following week 18 was abnormal, and the neurologist recommended clinical correlation 19 (A.R. 881). At a follow-up in September of 2015, the neurologist 20 reported that Plaintiff complained of a learning disability/autistic 21 syndrome and attention deficit (A.R. 872). At both neurology 22 examinations, Plaintiff reportedly had a symmetrical face, 5/5 motor 23 strength and 2/4 deep tendon reflexes (A.R. 873, 876). Plaintiff was 24 diagnosed with autistic disorder (active) and anxiety state 25 (unspecified) (A.R. 873-74, 876). No medications were prescribed 26 (A.R. 873). 27 /// 28 /// 1 A primary care progress note from August of 2017 reported that 2 Plaintiff presented for a skin condition, but also complained of a 3 history of agenesia of the corpus callosum,2 claimed that he became 4 anxious and “very retracted socially” and asserted he was failing “in 5 scholar matters” (A.R. 868). A primary care progress note from 6 October of 2017 also reported that Plaintiff had corpus callosum 7 agenesis with mild autism, for which Plaintiff’s mother had requested 8 help (A.R. 861). Plaintiff had no reported abnormal examination 9 findings (beyond a skin condition) at either primary care visit, but 10 Plaintiff nevertheless was diagnosed with autistic disorder (active), 11 autonomic brain abnormality and “anxiety state unspecified” (A.R. 862, 12 869). Again, Plaintiff was referred to neurology (A.R. 870). 13 14 Neurological consultations in October and December of 2017 15 reported intact cranial nerves, 5/5 motor strength, 2/4 deep tendon 16 reflexes and normal sensation (A.R. 858-59, 865-66). No other 17 examination findings were reported (A.R. 858-59, 865-66). The 18 neurologist diagnosed development delay (unspecified) and autistic 19 disorder (active) (A.R. 859). The neurologist prescribed no 20 medications and referred Plaintiff for follow-up with psychiatry (A.R. 21 860). There are no additional medical records. 22 23 2 Agenesia of the corpus callosum is “a rare birth defect in which the structure that connects the two hemispheres of the 24 brain (the corpus callosum) is partially or completely absent.” Kimes v. Colvin, 2016 WL 1253543, at *1 (N.D. Ind. Mar. 31, 2016) 25 (citation omitted); see also National Institute of Neurological 26 Disorders and Stroke, Agenesis of the Corpus Callosum Information Page, at https://www.ninds.nih.gov/Disorders/All-Disorders/ 27 Agenesis-Corpus-Callosum-Information-Page (last visited July 16, 2020) (“[t]he effects of the disorder range from subtle or mild 28 1 B. Plaintiff’s School Records 2 3 Plaintiff received a 2014 Individualized Education Program 4 (“IEP”) when Plaintiff was 16 years old and in the 11th grade (A.R. 5 718-45). Plaintiff reportedly had increased his reading level by 3.1 6 grades within the preceding year and then was reading at a 7.8 grade 7 level (A.R. 720). He reportedly struggled with reading, writing and 8 math due to a learning disability (A.R. 720-22, 724). Plaintiff 9 reportedly had excellent school attendance, was always prepared with 10 necessary school supplies, was eager to learn, always put forth his 11 best effort and was friendly and cooperative, but did not participate 12 actively in group work (A.R. 723, 725). Plaintiff was characterized 13 as an introvert who failed properly to engage with other students 14 (A.R. 741). However, a December, 2015 annual review reflected that 15 Plaintiff had met all of the goals set by Plaintiff’s IEP (A.R. 818- 16 19). 17 18 Plaintiff also received an April, 2016 IEP when Plaintiff was 17 19 years old and in the 12th grade (A.R. 820-44). He reportedly was able 20 to understand and follow simple multiple-step oral instructions for 21 work-related activities, but needed to develop conversational skills 22 to negotiate and initiate social conversations (A.R. 820). Within the 23 preceding year, Plaintiff had made “exponential progress” in reading 24 (A.R. 821). According to the IEP, Plaintiff reportedly knew how to 25 ask for help when he needed it, did his best to complete assignments 26 in class, did the majority of his homework, was able to work well with 27 others and was able to make and keep friends (A.R. 823). Plaintiff 28 reportedly was going to take the “CAHSEE” (California High School Exit 1 Exam) with accommodations (A.R. 830). The record does not reflect the 2 results of any such examination. 3 4 Special education teacher Salvador Plascencia3 completed a 5 teacher questionnaire dated April 30, 2015 (A.R. 757-64). Mr. 6 Plascencia had known Plaintiff for three years and spent 90 minutes 7 per day teaching Plaintiff English and History (A.R. 757). Plaintiff 8 reportedly received special education instruction because of an 9 auditory processing learning disability (A.R. 766). Mr. Plascencia 10 indicated that Plaintiff’s reading, math, and written language levels 11 were “far below basic” (A.R. 757). Mr. Plascencia rated Plaintiff in 12 five domains of functioning used in evaluating child disability 13 (discussed below) (A.R. 758-62). The ratings utilized a problems 14 scale ascending from “no problems” to “slight problems” to “obvious 15 problems” to “serious problems” to “very serious problems” (id.). Mr. 16 Plascencia rated Plaintiff as having “obvious” to “serious” problems 17 in acquiring and using information, stating that directions and 18 instructions had to be repeated and rephrased to ensure Plaintiff 19 understood (A.R. 758). In regard to attending and completing tasks, 20 Plascencia rated “none” to “slight” problems in all areas except 21 carrying out multi-step instructions, where Mr. Plascencia opined that 22 Plaintiff had “obvious” problems (A.R. 759). Plaintiff reportedly 23 needed prompting to finish assignments and needed to develop 24 organizational skills (A.R. 759). However, Mr. Plascencia reported no 25 26 3 The name of this teacher appears as “S. Plascencia” on 27 the questionnaire, but the full name, “Salvador Plascencia,” appears on certain testing results in the administrative record 28 1 problems in “interacting and relating with others,” “moving about and 2 manipulating objects” or “caring for himself” (A.R. 760-62). 3 4 Education specialist Edward Miller completed a teacher 5 questionnaire dated October 22, 2015 (A.R. 771-78). Mr. Miller had 6 known Plaintiff for two years and spent 90 minutes per school day with 7 Plaintiff teaching History and English (A.R. 771). Mr. Miller 8 reported that Plaintiff’s reading was at a 6th grade level, and his 9 math and written language were at a 5th grade level (A.R. 771). Mr. 10 Miller rated Plaintiff as having “none” to “slight” problems in 11 acquiring and using information, with the exception of reading and 12 comprehension, expressing ideas in written form, and recalling and 13 applying previously learned material, for which he rated Plaintiff as 14 having “obvious” problems (A.R. 772). Mr. Miller indicated that 15 Plaintiff was able to follow instructions and answer teacher-generated 16 prompts orally and in writing, but needed extended time and support to 17 succeed academically (A.R. 772). However, Mr. Miller reported no 18 problems in “attending and completing tasks,” “interacting and 19 relating with others,” “moving about and manipulating objects” or 20 “caring for himself” (A.R. 773-76). 21 22 C. Opinion Evidence 23 24 Consultative examiner Dr. Banafshe P. Sharokhi prepared a 25 complete psychological evaluation of Plaintiff dated January 2, 2014, 26 (when Plaintiff was 15 years old) (A.R. 661-67). Plaintiff reportedly 27 was cooperative and friendly, had fair eye contact and appeared to 28 give genuine effort (A.R. 661). Dr. Sharokhi did not review any 1 records before preparing the evaluation (A.R. 663). Rather, 2 Plaintiff’s mother was the source of the historical information for 3 the evaluation (A.R. 661-62). To Dr. Sharokhi, Plaintiff’s mother 4 “appear[ed] to be highly embellishing academic and psychiatric 5 symptomatology, as reported symptoms appear[ed] highly discrepant with 6 presentation and current functioning” (A.R. 661-62). Plaintiff’s 7 mother claimed that Plaintiff had an underdeveloped half side of his 8 brain (A.R. 663). She said Plaintiff had a history of speech delays, 9 communication deficits, and difficulty expressing himself (A.R. 662). 10 She asserted that Plaintiff did not speak until he was five years old, 11 and spoke only 2-3 words at 5.5 years old (id.). She said that the 12 school district had diagnosed Plaintiff with a learning disability at 13 age three (A.R. 662). She also said that, in 2011, Plaintiff was 14 diagnosed with high functioning autism by a mental health practitioner 15 (but not by the school district or Plaintiff’s doctor, which Dr. 16 Sharokhi considered “highly suspicious”) (id.). 17 18 Plaintiff reportedly was attending 10th grade special education 19 classes for problems with reading, writing, math and social adjustment 20 (A.R. 663). Plaintiff reportedly had friends who were younger than 21 him and a history of anger spells (A.R. 662-63). Reportedly, 22 Plaintiff generally got along well with other children and sometimes 23 with adults, enjoyed playing with his friends at school and playing 24 video games with his friends outside of school (A.R. 662-63). 25 Plaintiff was generally well behaved (A.R. 662). 26 27 On mental status examination, Plaintiff was cooperative, 28 friendly, had normal mood and affect, normal speech, intact comprehension, mildly impaired immediate memory, attention and 2|| concentration, coherent thought processes with mild distractibility 3] evident, and fair insight and judgment (A.R. 664). Intelligence 4) testing yielded a valid full scale IQ of 85, within the low average range, with an indication to rule out a learning disorder (not 6|| otherwise specified), given the significant discrepancies within his index scores (which ranged from 78 to 100). See A.R. 665-66; see also 8] A.R. 668-69 (addendum to Dr. Sharokhi’s report re additional reading, spelling and math testing given which tended to confirm that the 85 IQ 10] score was accurate); A.R. 749-52, 765 (additional academic testing by 11] Mr. Plascencia from January of 2015 reflecting below average scores in 12) math and reading with a recommendation for special education 13] services). Dr. Sharokhi opined that Plaintiff did not meet diagnostic 14] criteria for autistic disorder or any pervasive developmental 15] disorders (A.R. 667). Dr. Sharokhi opined that Plaintiff’s overall 16] limitations appeared mild, with the lowest index being a processing speed of 78 (A.R. 666). Dr. Sharokhi assessed a Global Assessment of 18] Functioning (“GAF”) score of 60 (A.R. 666).* Dr. Sharokhi opined that 19] Plaintiff would have mild inability to: (1) understand and respond to 20|| complex requests, instructions or questions; (2) initiate and use 21] language; (3) interact with peers and adults; and (4) take care of daily living skills. See A.R. 667; see also A.R. 669-70 (reaffirming 23 24 ‘ The GAF scale is used by clinicians to report an 25 individual’s overall level of functioning. See American Psychological Association, Diagnostic and Statistical Manual of 26| Mental Disorders 34 (4th ed. 2000) (“DSM”). A GAF of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., 28 temporarily falling behind in schoolwork) .” Id. 17

1 same after reviewing academic records, including a December, 2012 IEP 2 and a December, 2013 questionnaire by Mr. Plascencia which are not in 3 the record). 4 5 A state agency psychiatrist reviewed the record in May of 2015, 6 when Plaintiff was 16 years old, and opined that Plaintiff had less 7 than marked limitations in all domains of functioning for evaluating 8 child disability (discussed below), and therefore did not meet the 9 Listings (A.R. 169-78). A state agency psychologist reviewed the 10 record in November of 2015, when Plaintiff was 17 years old, and 11 agreed with the prior findings that Plaintiff did not meet the 12 Listings (A.R. 180-89). 13 14 Medical expert Dr. Theron Aikens testified on two separate 15 occasions. Dr. Aikens testified that there was evidence Plaintiff has 16 some kind of a learning disorder (A.R. 58-59, 156). While there was 17 mention in the record of autism spectrum disorder and corpus callosum 18 agenesis, Dr. Aikens found no objective support for these diagnoses 19 (A.R. 156-57).5 Dr. Aikens opined that, for the period before 20 Plaintiff turned 18, Plaintiff had a marked limitation in his ability 21 to acquire and use information, but less than marked limitations in 22 /// 23 /// 24 /// 25 26 5 The ALJ gave Plaintiff’s counsel time to supplement the 27 record with any objective evidence regarding these diagnoses (A.R. 165-68). It appears that no additional records were 28 1 the remaining areas of functioning (A.R. 60-61).6 Dr. Aikens declined 2 to render an opinion as to Plaintiff’s condition as an adult because 3 Dr. Aikens felt there was insufficient evidence in the record after 4 Plaintiff turned 18 (A.R. 50-56, 61). The ALJ then ordered an adult 5 consultative examination (A.R. 65). 6 7 Consultative examiner Dr. Danita Stewart prepared a complete 8 psychological evaluation of Plaintiff dated December 18, 2017, when 9 Plaintiff was 19 years old (A.R. 852-57). Dr. Stewart reviewed Dr. 10 Sharokhi’s evaluation and the December, 2015 IEP (A.R. 853). 11 Plaintiff’s mother claimed that half of Plaintiff’s brain was not 12 fully developed (A.R. 853). Plaintiff reported a history of learning 13 difficulties, attending special education since middle school, and 14 graduating from high school in 2016 (A.R. 853). Plaintiff also 15 reported that he socialized with friends on a monthly basis (A.R. 16 854). 17 18 On mental status examination, Plaintiff was pleasant and 19 cooperative, with borderline intellectual functioning, euthymic mood 20 and stable affect, moderately diminished memory, mildly diminished 21 attention and concentration, and a low fund of knowledge (A.R. 854- 22 55). Testing yielded a full scale IQ score of 74, but with two 23 6 Regarding Plaintiff’s ability to interact and relate to 24 others, Dr. Aikens acknowledged that an IEP reported that Plaintiff had failed to do group work and was an introvert who 25 did not engage other students (A.R. 60, 64). However, Dr. Aikens 26 also observed that: (1) none of the teachers reported any problems in that domain; (2) Plaintiff had reported to Dr. 27 Sharokhi that he had friends in and out of school; and (3) other records suggested that Plaintiff was well liked by his peers 28 1 reported subtest scaled scores of zero (an apparent error, see below) 2 (A.R. 855). Dr. Stewart opined that the test was a valid estimate of 3 Plaintiff’s functional level (A.R. 856). Dr. Stewart assessed a 4 learning disorder (not otherwise specified), borderline intellectual 5 functioning, and a GAF of 60 (A.R. 856). Dr. Stewart opined that 6 Plaintiff would be able to understand, remember and carry out short, 7 simplistic instructions without difficulty, would have mild inability 8 to understand, remember and carry out detailed instructions based on 9 his borderline intellectual functioning, would be able to make 10 simplistic work-related decisions without special supervision, would 11 be able to interact appropriately with coworkers, supervisors and the 12 public, would have no difficulties maintaining social functioning, 13 would have a mild restriction on daily activities, would have mild 14 difficulties in concentration, persistence or pace, and would have 15 mild inability to maintain attendance and complete an eight-hour 16 workday in a regular workplace setting, but would be able to deal with 17 usual stressors of a competitive workplace setting (A.R. 856-57).7 18 19 Returning for another hearing after Dr. Stewart’s examination, 20 Dr. Aikens opined that Dr. Stewart’s evaluation had been incomplete 21 22 7 The record also contains a medical source statement 23 from Dr. Stewart dated December 18, 2017 (A.R. 848-51). She opined that Plaintiff has none-to-mild impairments in his ability 24 to understand, remember and carry out instructions due to his borderline cognitive functioning (A.R. 848). Dr. Stewart 25 indicated Plaintiff has no limits in his ability to interact with 26 others or respond to changes in the work setting (A.R. 850). She stated that Plaintiff has a mild inability to focus and 27 concentrate, particularly on tasks of increasing difficulty, and that he tested low on measures of auditory and visual memory 28 1 (A.R. 145-61). Specifically, (as Plaintiff’s counsel had suggested 2 (see, e.g., A.R. 645-49)), Dr. Aikens stated that the ALJ should not 3 rely on intelligence testing in Dr. Stewart’s evaluation due to the 4 apparently erroneous reporting of zeros for some subtest results (A.R. 5 158). Dr. Aikens suggested that the ALJ “toss out” Dr. Stewart’s 6 opinions in total (A.R. 158). However, Plaintiff’s counsel refused 7 the ALJ’s offer to have Plaintiff undergo another consultative 8 examination in the event the ALJ deemed Dr. Stewart’s evaluation 9 inadequate (A.R. 136-37).8 10 11 D. Plaintiff’s Statements and Testimony and those of the Lay 12 Witnesses 13 14 Plaintiff testified that he attended special education classes, 15 eight to nine classes at a time, with 10 to 12 other students, a 16 teacher and a teacher’s assistant (A.R. 76-78). Plaintiff claimed 17 that his teachers had to repeat things more than twice for him to get 18 it “stuck into [his] head” (A.R. 78-79). However, Plaintiff said he 19 had graduated from high school with a regular diploma and did not have 20 to take the California test usually required for such a diploma (A.R. 21 85-86).9 22 /// 23 8 Plaintiff does not claim that the ALJ erred by deciding 24 the case without ordering a further consultative examination. 25 9 Plaintiff’s counsel stated she did not think that 26 Plaintiff had received a regular diploma, so the ALJ gave counsel the opportunity to submit additional evidence regarding the issue 27 (A.R. 86-87). It does not appear that counsel submitted any additional evidence contrary to Plaintiff’s testimony that he 28 1 Plaintiff said he had not looked for work since he graduated 2 because he gets nervous and scared around people he does not know 3 (A.R. 84-85). Plaintiff said he had refused to learn how to use the 4 bus by himself and he did not like going out alone (A.R. 79). 5 Plaintiff said that, when he was in school, he did not really have 6 friends with whom he hung out (A.R. 85). However, he admitted he did 7 have one friend with whom he goes to the mall, movies, and other 8 places by taxi or with rides from that friend’s mother (A.R. 79-80). 9 Plaintiff said his mother was teaching him to cook, and he was able to 10 do dishes, vacuum, do laundry with his mother, take care of two cats, 11 play video games and watch television (A.R. 80-84, 88). 12 13 Plaintiff testified that, through a school program, he had worked 14 part time (i.e., 50 hours a month for two months) as a stock clerk for 15 Walgreen’s during his senior year of high school (A.R. 89-90). 16 Plaintiff walked to and from this job by himself (A.R. 94). 17 Plaintiff said he had trouble in the first couple of weeks with people 18 asking him where things were in the store because he had not learned 19 about the store’s products (A.R. 90). Plaintiff also had made one 20 mistake by failing to check for expiration dates (A.R. 93-94). He 21 said he was able to accept feedback from his boss (A.R. 93-94). 22 Plaintiff said he could stock shelves after three weeks of learning, 23 but he had not wanted to continue working after the school program 24 ended because he did not like dealing with people (A.R. 91-93). 25 Plaintiff said he thought he could do simple work if he did not have 26 to deal with people and if the job were near him (A.R. 91-92). 27 /// 28 /// 1 Plaintiff’s mother testified that Plaintiff could not cook 2 without her there because he supposedly is afraid (A.R. 97). She said 3 she has to remind Plaintiff many times to do his household chores 4 (A.R. 97-98). She said that Plaintiff rarely communicates and he gets 5 nervous, timid and fearful when he meets people whom he does not know 6 (A.R. 99-100, 125). She claimed Plaintiff never goes out alone and 7 always has “a whole lot of excuses” for not doing things (A.R. 125- 8 27).10 9 10 Plaintiff’s brother testified that Plaintiff feels weird around 11 other people and does not feel safe being out “on the street” by 12 himself (A.R. 67-68). He said that Plaintiff was able to walk alone 13 to school after the brother spent two or three weeks showing him the 14 way (A.R. 72; but see A.R. 95-96 (Plaintiff testifying that his 15 brother did not walk with him to school)). The brother also said 16 Plaintiff walked home from school with friends who lived on the same 17 18 10 In a Disability Report - Child form in English completed by Plaintiff’s mother dated March 2, 2015, Plaintiff’s 19 mother reported that she could not speak and understand or read and understand English; her preferred language was Spanish (A.R. 20 538-49). In a Function Report - Child form stamped March 12, 2015, which was also in English, Plaintiff’s mother reported, 21 inter alia, that Plaintiff: (1) was attending school full time; 22 (2) could not repeat stories he had heard; (3) could not explain why he did something; (4) is very shy, “has little people 23 skills,” only makes friends when he wants to make friends; (5) reads and understands at an eighth grade level; (6) cannot 24 make new friends or generally get along with her, adults, or his siblings; (7) cannot help around the house, cook meals for 25 himself, take needed medication, use public transportation by 26 himself, accept criticism or correction or obey rules at home, and he rarely asks for help; and (8) cannot keep busy on his own, 27 finish things he starts or complete chores most of the time, and he must be told more than once and reminded of what he needs to 28 1 street (A.R. 73). Plaintiff’s brother had met only one of Plaintiff’s 2 friends with whom Plaintiff spent time (A.R. 68-69). That friend’s 3 mother would drive Plaintiff and the friend to the mall or to the 4 movies approximately once a month (A.R. 68, 73). He said that 5 Plaintiff needed reminding, but was able to do household chores (A.R. 6 69-70). Plaintiff was able to watch television and play simple video 7 games that do not involve critical thinking (A.R. 71-72, 74-75). He 8 said that Plaintiff had not tried to work since he turned 18 because 9 Plaintiff was afraid that other people would see him as “different” 10 (A.R. 75). 11 12 II. Substantial Evidence Supports the Conclusion that Plaintiff is 13 Not Disabled. 14 15 Substantial evidence supports the conclusion Plaintiff was not 16 disabled during either of the relevant time periods. 17 18 A. Plaintiff Did Not Meet His Burden of Establishing Disability 19 Before He Turned 18. 20 21 For the period before he turned 18 years old, Plaintiff had the 22 burden to prove that his impairment(s) then met or medically equaled a 23 listed impairment. See 20 C.F.R. § 416.924 (outlining disability 24 determination procedure); see also 20 C.F.R. § 416.912(a) (child 25 claimant bears the burden of establishing how his impairments affects 26 his functioning). Plaintiff did not meet this burden. 27 /// 28 /// 1 In determining whether a child’s impairment or combination of 2 impairments functionally equals an impairment in the Listings, the 3 Commissioner must assess the child’s functioning in six domains: 4 (1) acquiring and using information; (2) attending and completing 5 tasks; (3) interacting and relating with others; (4) moving about and 6 manipulating objects; (5) caring for oneself; and (6) health and 7 physical well-being. See 20 C.F.R. 416.926a(a)-(b). To functionally 8 equal the Listings, the impairment(s) must result in a “marked” 9 limitation in two domains or an “extreme” limitation in one domain (20 10 C.F.R. 416.926a(d)). A “marked” limitation is one that “interferes 11 seriously” with the ability independently to initiate, sustain, or 12 complete activities (20 C.F.R. 416.926a(e)(2)). An “extreme” 13 limitation is one that “interferes very seriously” with the ability 14 independently to initiate, sustain, or complete activities (20 C.F.R. 15 416.926a(e)(3)). 16 17 Here, the ALJ found that Plaintiff had marked limitations in 18 acquiring and using information, but less than marked limitations in 19 the remaining domains (A.R. 27-32 (giving great weight to Dr. Aikens’ 20 opinion finding the same, great weight to Dr. Sharokhi’s opinion that 21 Plaintiff at most had mild limitations, and moderate weight to the 22 state agency physicians’ opinions that Plaintiff would have less than 23 marked limitations in all domains)). The referenced medical opinions 24 constitute substantial evidence supporting the ALJ’s non-disability 25 determination. See Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 26 2007) (opinion of examining physician based on independent clinical 27 findings can provide substantial evidence to support administrative 28 conclusion of non-disability); Tonapetyan v. Halter, 242 F.3d 1144, 1 1149 (9th Cir. 2001) (opinion of non-examining physician “may 2 constitute substantial evidence when it is consistent with other 3 independent evidence in the record”); Andrews v. Shalala, 53 F.3d 4 1035, 1041 (9th Cir. 1995) (where the opinions of non-examining 5 physicians do not contradict “all other evidence in the record” an ALJ 6 properly may rely on these opinions) (citation and emphasis omitted). 7 8 Significantly, no medical source (or non-medical source outside 9 of Plaintiff’s family) opined that Plaintiff had materially greater 10 limitations. The record contains no treating doctor’s opinion 11 concerning Plaintiff’s functional limitations. Plaintiff’s special 12 education teachers did not report marked limitations in any two 13 domains of functioning (A.R. 757-64, 771-78). 14 15 Plaintiff argues that the ALJ erred in finding that Plaintiff did 16 not have marked limitations in the domains of attending and completing 17 tasks (Domain 2) and interacting and relating with others (Domain 3) 18 (Plaintiff’s Motion, p. 3). Plaintiff argues that the ALJ should have 19 discerned marked limitations in these domains based on: (1) Mr. 20 Plascencia’s opinion that Plaintiff needed prompting to finish 21 assignments and Mr. Miller’s assertedly similar opinion (Domain 2) 22 (A.R. 759, 772); (2) the claims of Plaintiff’s mother that Plaintiff 23 required repeated prompting to remind him of tasks and that Plaintiff 24 did not complete tasks (Domain 2) (A.R. 557); (3) Plaintiff’s 25 testimony that he required repeated prompts from his teachers for him 26 to complete a task (Domain 2) (A.R. 78-79); (4) Plaintiff’s IEP 27 indicating that he was unable actively to participate in group work, 28 was an introvert who failed properly to engage other students and 1 needed to develop conversational skills to negotiate and initiate 2 social conversations (Domain 3) (A.R. 686, 707, 820); (5) the 3 testimony of Plaintiff and his brother that Plaintiff had only one 4 friend whom Plaintiff saw once a month (Domain 3) (A.R. 68-69, 73, 79- 5 80); and (6) the claims of Plaintiff’s mother that Plaintiff did not 6 get along with adults or siblings, did not make new friends, rarely 7 communicates with others, gets nervous and does not trust others 8 (Domain 3) (A.R. 125, 555). See Plaintiff’s Motion, pp. 3-5; 9 Plaintiff’s Opposition, pp. 2-4. 10 11 An ALJ is not required to discuss all evidence found 12 unpersuasive; an ALJ is only required to explain why significant 13 probative evidence has been rejected. See Howard ex rel. Wolff v. 14 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003); Vincent v. Heckler, 739 15 F.2d 1393, 1394-95 (9th Cir. 1984). Here, the ALJ expressly 16 acknowledged the conflicting evidence on which Plaintiff relies (A.R. 17 26, 29-30, 33-34). However, the ALJ also expressly found more 18 persuasive other aspects of Plaintiff’s testimony, other aspects of 19 the IEP reports, and other statements made by Plaintiff and his mother 20 to Dr. Sharokhi (A.R. 26, 29-30 (citing A.R. 85, 89-93, 667, 686, 21 823)). Such evidence reflected that Plaintiff had proper school 22 attendance for a full schedule of classes, did his best to complete 23 assignments in class, did the majority of his homework, graduated with 24 a regular diploma, was able to work independently stocking shelves for 25 two months (even though he had some difficulty interacting with 26 customers), got along with adults and siblings, made and kept friends 27 and was able to work well with others (id.). 28 /// 1 It was the ALJ’s prerogative to weigh the evidence and to find, 2| (in accordance with the opinions of Plaintiff’s teachers, the state 3] agency psychiatrist and Dr. Aikens) that Plaintiff did not have marked 4] limitations in Domains 2 and 3. As detailed above, Mr. Plascencia 5| opined that Plaintiff did not have any “serious” problems in attending 6|| and completing tasks and had no problems interacting and relating with 7) others, and Mr. Miller found no problems in either of these two domains (A.R. 759-60, 773-74). The state agency psychiatrist found 9] that Plaintiff did not have marked impairments in any domains (A.R. 10] 173-74). Dr. Aikens considered Plaintiff’s IEPs and the teachers’ 11] reports referencing the alleged limitations Plaintiff urges, but Dr. 12) Aikens nevertheless concluded that Plaintiff had less than marked 13] limitations in Domains 2 and 3 (A.R. 59-64). 14 15 While Plaintiff argues contrary interpretations of the evidence 16] in the record and relies heavily on the claims of his mother and 17] brother, it was for the ALJ to interpret the evidence, evaluate 18] credibility and resolve any conflicts in the evidence. See Treichler 19] v. Commissioner, 775 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it 20] to the ALJ” “to resolve conflicts and ambiguities in the record”); accord Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001); Andrews v. 22| Shalala, 53 F.3d at 1039-40. When evidence “is susceptible to more than one rational interpretation,” the Court must uphold the 24|| administrative decision. See Andrews v. Shalala, 53 F.3d at 1039-40; 25] accord Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); 26|| Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). The Court will uphold the ALJ’s rational interpretation of the evidence in the present case notwithstanding any conflicts in the evidence. YO

1 B. Substantial Evidence Supports the Conclusion that Plaintiff 2 Was Capable of Work After He Turned 18. 3 4 Substantial evidence also supports the ALJ’s non-disability determination for the time period after Plaintiff turned 18. No 6|| treating doctor opined that Plaintiff has greater limitations than the 7) limitations the ALJ found to exist. The ALJ relied on Dr. Stewart’s opinions (minus the unreliable IQ scores) in determining Plaintiff's residual functional capacity, supported by Dr. Aikens’ earlier 10] opinions, Dr. Sharokhi’s opinions, the IEPs, the teacher 11] questionnaires, and much of the testimony of Plaintiff and his family 12] (A.R. 35-36). Dr. Stewart’s opinions provide substantial evidence for 13] the ALJ’s decision. See Orn v. Astrue, 495 F.3d at 631-32. 14 15 The vocational expert testified that a person with the residual 16] functional capacity the ALJ found to exist could perform certain jobs 17) existing in significant numbers in the national economy (A.R. 129-30). 18] The ALJ properly relied on this testimony in denying disability benefits for the period after Plaintiff turned 18. See Barker v. Secretary of Health and Human Services, 882 F.2d 1474, 1478-80 (9th 21) Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 774-75 (9th Cir. 1986). 22] /// 23] /// 24] /// 25] /// 26] /// /// 28] ///

1| III. Plaintiff’s Remaining Arguments are Unavailing.* 2 3 Plaintiff argues that the ALJ erred in: (a) evaluating evidence 4| from Plaintiff; (b) evaluating evidence from the other lay witnesses; (c) failing to include all of Plaintiff’s alleged limitations in the 6| ALJ’s residual functional capacity assessment; and (d) failing to 7) include all of Plaintiff’s limitations in the hypothetical questioning of the vocational expert. See Plaintiff’s Motion, pp. 3-11; 9] Plaintiff’s Opposition, pp. 2-10. As discussed below, these arguments 10] are rejected. 11 12 An ALJ’s assessment of a claimant’s credibility is entitled to 13] “great weight.” Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). Where, as 15] here, an ALJ finds that the claimant’s medically determinable 16] impairments reasonably could be expected to cause some degree of the 17] alleged symptoms of which the claimant subjectively complains, any 18] discounting of the claimant’s complaints must be supported by 19] specific, cogent findings. See Berry v. Astrue, 622 F.3d 1228, 1234 20 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); 21] but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) 22| (indicating that ALJ must offer “specific, clear and convincing” 23 ut The Court has considered and rejected all of the 24 arguments raised in Plaintiff’s motion for summary judgment and 25 in Plaintiff’s Opposition. The Court discusses Plaintiff's principal arguments herein. Neither Plaintiff's arguments nor 26|| the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the 27] See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating 28 prejudice). DA

1|| reasons to reject a claimant’s testimony where there is no evidence of 2|| “malingering”).** An ALJ’s credibility finding “must be sufficiently 3] specific to allow a reviewing court to conclude the ALJ rejected the 4) claimant’s testimony on permissible grounds and did not arbitrarily discredit the claimant’s testimony.” Moisa v. Barnhart, 367 F.3d 882, 6] 885 (9th Cir. 2004) (internal citations and quotations omitted); see 7) also Social Security Ruling (“SSR”) 96-7p (explaining how to assess a 8| claimant’s credibility), superseded, SSR 16-3p (eff. Mar. 28, 2016).* 9 10 An ALJ may discount lay witness testimony where the testimony is 11] similar to the claimant’s testimony and the ALJ has given legally 12] sufficient reasons for discounting the claimant’s testimony. See 13] Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 694 (9th 14] Cir.2009) (“In light of our conclusion that the ALJ provided clear and 15] convincing reasons for rejecting Valentine’s own subjective 16) ———— 17 2 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the 18] “clear and convincing” standard. See, e.g., Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 19] F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 50 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d at 1102; Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. | 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 22] (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are sufficient under either 23| standard, so the distinction between the two standards (if any) is academic. 24 25 8 The appropriate analysis under the superseding SSR is substantially the same as the analysis under the superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a change in diction 27) rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that 28] ssp 16-3p “makes clear what our precedent already required”). OR

1 complaints, and because Ms. Valentine’s testimony was similar to such 2 complaints, it follows that the ALJ gave germane reasons for rejecting 3 her testimony.”); see generally Smolen v. Chater, 80 F.3d at 1288 4 (“[T]he ALJ can reject the testimony of lay witnesses only if he gives 5 reasons germane to each witness whose testimony he rejects.”). Here, 6 the ALJ stated sufficient reasons for deeming Plaintiff’s subjective 7 complaints and the lay witnesses’ statements less than fully credible. 8 9 In finding Plaintiff capable of performing work limited to simple 10 routine tasks with occasional contact with supervisors and brief and 11 superficial contact with the public and coworkers, the ALJ considered 12 Plaintiff’s statements concerning his limitations (A.R. 35). As 13 summarized above, Plaintiff had testified, inter alia, that he 14 attended special education classes with 10 to 12 other students, 15 needed teachers to repeat things more than twice for him to get it 16 “stuck into [his] head”14 and gets nervous and scared around people he 17 does not know (A.R. 76-79, 84-85). 18 19 To the extent these statements may have suggested greater 20 limitations than the ALJ found to exist, the ALJ found these 21 statements not entirely consistent with other evidence in the record, 22 including other evidence from Plaintiff himself (A.R. 26, 33-35). 23 Specifically, the ALJ found Plaintiff was capable of greater learning 24 than he or his mother and brother sometimes reported, as evidenced by: 25 26 14 The vocational expert testified that, if a person with the limitations the ALJ found to exist were further limited by 27 the need to be reminded two to three times a day to complete tasks, or were off task 15 percent or more of the workday, such 28 1] (1) an IEP reflecting that Plaintiff was able to increase his reading 2| abilities by more than three grades in one school year (A.R. 720); 3] (2) the testimony of Plaintiff’s brother that Plaintiff plays simple 4|| video games without needing instruction (A.R. 74-75); (3) Plaintiff's testimony that he took a full schedule of 8-9 high school classes and 6| graduated with a regular diploma (A.R. 77-78, 85-86);*° and 7) (4) Plaintiff’s testimony that he was able to work as a stock clerk for Walgreen’s for 100 hours over a two month period, where he learned to work independently stocking shelves and was able to take 10] instruction and learn from his errors (A.R. 89-94). See A.R. 26, 33- 11) 35. The ALJ also noted that Plaintiff had testified that he was able 12) to walk to and from school by himself and was able to walk to and from 13] Walgreen’s by himself (A.R. 94-96), that he was learning how to cook 14] from his mother and could cook a couple of dishes (A.R. 80-81), and 15] that he could go to the mall and to movies with a friend (A.R. 79-80). 16] See A.R. 35. The ALJ was not required to accept other, inconsistent 17] reports of Plaintiff’s abilities. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (claimant’s inconsistencies can adversely 19) impact claimant’s credibility); Verduzco v. Apfel, 188 F.3d 1087, 1090 20] (9th Cir. 1999) (inconsistences in a claimant’s statements were among 21] the “clear and convincing reasons” for discounting claimant’s 22 23 18 Plaintiff’s counsel takes issue with the ALJ’s reliance on Plaintiff’s diploma. Counsel argues that Plaintiff did not 24 pass the California proficiency exam. See Plaintiff’s Motion, PP- 6-7 (citing A.R. 685, 797 concerning testing information before Plaintiff’s senior year). The evidence in the record did 26|| not require the ALJ to dismiss the significance of the diploma. Although there was discussion of accommodations for testing (A.R. 797), there is no report in the record of any senior year test results. Further, Plaintiff testified that he earned a regular 28 diploma and did not have to take the test (A.R. 85-86).

OFT

1 credibility). 2 3 The ALJ acknowledged claims by Plaintiff’s mother and brother 4 that Plaintiff could not make new friends, generally did not get along 5 with adults or siblings, could not keep busy on his own, did not 6 finish things he started, required constant reminding to do chores, 7 did not complete chores, has difficulty with video games requiring 8 critical thinking, will not go places by himself, and has difficulty 9 interacting with people he does not know (A.R. 26, 33-35). However, 10 the ALJ also cited evidence to the contrary, e.g.: (1) Plaintiff’s 11 mother had reported to Dr. Sharokhi that Plaintiff generally got along 12 with other children (A.R. 662); (2) Plaintiff’s teachers did not 13 report that Plaintiff had any problems in “interacting and relating 14 with others” (A.R. 761, 774); (3) Plaintiff’s IEP review reported that 15 Plaintiff was able to work well with others, could make and keep 16 friends, did his best to complete assignments and did the majority of 17 his homework (A.R. 823); (4) Plaintiff had testified that he could 18 wash dishes, vacuum, take out trash, clean his room, care for two 19 cats, and work for Walgreen’s without someone constantly watching over 20 him and telling him what to do (A.R. 80-84, 88, 93) (suggesting to the 21 ALJ that any issue with completing household chores was actually a 22 “motivational problem”); and (5) Dr. Sharokhi had reported that 23 Plaintiff’s mother appeared to be highly embellishing Plaintiff’s 24 symptomatology, which included great discrepancies from Plaintiff’s 25 presentation and functioning (A.R. 661-62). See A.R. 30, 34-35. The 26 ALJ’s discussion of such evidence more than satisfied the requirement 27 of stating reasons germane for the rejection of the lay witness 28 testimony at issue. See Lewis v. Apfel, 236 F.3d 503 (9th Cir. 2001) 1] (conflicts with the medical evidence or with evidence from the 2| claimant can constitute “germane reasons” to reject the testimony of 3) a lay witness). 4 5 In the present case, the ALJ stated sufficient valid reasons to allow this Court to conclude that the ALJ discounted on permissible grounds the portions of the statements of Plaintiff and the portions 8| of the statements of the lay witnesses on which Plaintiff now relies. See Moisa v. Barnhart, 367 F.3d at 885. The Court therefore defers to 10] the ALJ’s credibility determinations. See Lasich v. Astrue, 252 Fed. 11] App’x 823, 825 (9th Cir. 2007) (court will defer to Administration’s 12] credibility determination when the proper process is used and proper 13] reasons for the decision are provided); accord Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995) .7° 15 16 The Court also rejects Plaintiff's arguments that the ALJ should 17] have included in the ALJ’s residual functional capacity assessment, 18] and in the hypothetical questioning of the vocational expert, various alleged limitations the ALJ did not find to exist. As discussed 20] above, substantial evidence supports the ALJ’s residual functional 21| capacity assessment, and the ALJ properly discounted the testimony and 22| statements suggesting greater limitations. Hypothetical questions 23| posed to a vocational expert need not include all conceivable limitations that a favorable interpretation of the record might 25

*8 The Court should not and does not determine the 27|| credibility of the witnesses’ testimony. Absent legal error, it is for the Administration, and not this Court, to do so. See 28] Magallanes v. Bowen, 881 F.2d 747, 750, 755-56 (9th Cir. 1989). YNQa

1 suggest to exist – only those limitations the ALJ finds to exist. 2 See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 3 2005); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); 4 Magallanes v. Bowen, 881 F.2d at 756-57. Here, the hypothetical 5 questioning of the vocational expert included all of the limitations 6 the ALJ properly found to exist. 7 8 CONCLUSION 9 10 For all of the foregoing reasons, Plaintiff’s motion for summary 11 judgment is denied and Defendant’s motion for summary judgment is 12 granted. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: July 22, 2020. 17 18 /s/

CHARLES F. EICK

19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28