Opinion
3:20-cv-01050-AC
12-28-2021
KONNI. M. O., Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE
Plaintiff Konni. M. O. seeks judicial review of the final decision of the Commissioner of Social Security denying her application for a period of disability and disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the following reasons, the Commissioner's decision should be affirmed.
To preserve privacy, this Findings and Recommendation uses only the first name and the initial of the last name of the non-governmental party in this case.
Procedural Background
On June 8, 2017, Plaintiff protectively filed an application for a period of disability and disability benefits, alleging disability beginning October 28, 2016, due to depression, anxiety, vertigo, hyperthyroidism, and migraine headaches. Tr. Soc. Sec. Admin. R. (“Tr.”) 50, 63, ECF No. 12. Plaintiff's claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (“ALJ”). The ALJ held a hearing on November 30, 2018, at which Plaintiff appeared with her attorney and testified. A vocational expert, William H. Weiss, also appeared telephonically and testified. On January 3, 2019, the ALJ issued an unfavorable decision. The Appeals Council denied Plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review. Tr. 1.
Plaintiff was born in 1981, was thirty-five years old on the alleged onset of disability, thirty-seven years old on the date of the ALJ's decision, and will be forty years old on her date last insured. Tr. 25, 50, 63. Plaintiff has a GED and has past relevant work as a customer service representative and property manager. Tr. 25, 36, 44.
ALJ's Decision
The ALJ determined that Plaintiff meets the insured status requirements through December 31, 2021, and at step one, found that she has not engaged in substantial gainful employment from her alleged onset date of October 28, 2016, through the date of the decision. Tr. 17. At step two, the ALJ determined that Plaintiff has following severe impairments: depression, an anxiety disorder, hyperthyroidism, and migraine headaches. Tr. 17. At step three, the ALJ determined that Plaintiff's severe impairments do not meet or equal the severity of any listed impairment. Tr. 18.
Reviewing all the evidence in the record, the ALJ determined that Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work, except that she can occasionally stoop, crouch, kneel, and crawl; never climb ladders ropes or scaffolds; must avoid all exposure to excessive office noise, excessive vibration, use of hazardous machinery, and exposure to unprotected heights; she is able to remember, understand, and carry out simple and routine instructions on tasks consistent with specific vocational preparation (SVP) level 1 and 2 type jobs; she can occasionally make decisions and adapt to changes in the work setting; she is unable to interact with the public; and she is able to perform jobs with strict production quotas. Tr. 20. At step four, the ALJ determined that Plaintiff is unable perform her past relevant work. Tr. 25. At step five, the ALJ found that considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including such representative occupations as: surveillance system monitor, semiconductor assembler, and table worker. Tr. 26. Therefore, the ALJ determined that Plaintiff has not been disabled since October 28, 2016, through the date of the decision, and therefore, denied Plaintiff's application for disability benefits. Tr. 27.
Issues on Review
Plaintiff contends the ALJ made the following errors: (1) failed to properly evaluate her subjective symptom testimony; (2) failed to properly evaluate lay witness testimony; and (3) failed to incorporate all her limitations into the RFC and hypothetical to the vocational expert. The Commissioner argues that the ALJ's decision is supported by substantial evidence and is free of legal error. Alternatively, the Commissioner contends that even if the ALJ erred, Plaintiff has not demonstrated harmful error.
Standard of Review
The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Substantial evidence is “more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal quotation and citation omitted); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020); Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine whether substantial evidence exists, the court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Trevizo, 871 F.3d at 675; Garrison, 759 F.3d at 1009. “‘If the evidence can reasonably support either affirming or reversing,' the reviewing court ‘may not substitute its judgment' for that of the Commissioner.” Gutierrez v. Comm'r Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).
Discussion
I. The ALJ Did Not Err in Evaluating Plaintiff's Subjective Symptom Testimony
A. Standards
Plaintiff argues that the ALJ failed to provide clear and convincing reasons for rejecting her subjective symptom testimony. To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. Trevizo, 871 F.3d at 678; 20 C.F.R. § 404.1529. The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090; 1102 (9th Cir. 2014); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, absent affirmative evidence that the claimant is malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Factors the ALJ may consider when making such credibility determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, and inconsistencies in testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013); Tommasetti, 533 F.3d at 1039.
B. Analysis
At the hearing, Plaintiff testified that she lives with her two children (ages eleven and thirteen) and their father. Tr. 35-36. Plaintiff stated that she previously worked in property management ant that she collected unemployment after leaving her job at the U.S. Department of Treasury. Tr. 36. Plaintiff testified that she was suffering from depression, anxiety, migraines, and hyperthyroidism, and that she was not taking medications for her hyperthyroidism. Tr. 36-37. Plaintiff testified that her neurologist treated her migraines with Botox, which helped for a week, then she returned to baseline. Tr. 37. Plaintiff stated that the neurologist recommended a new medication, which she was not yet taking. Tr. 38. Plaintiff stated that she does not like to take medications that need to be taken at the same time every day, because she cannot remember to take them consistently. Tr. 38. Plaintiff acknowledged that she has not been treated by a psychiatrist, psychologist, or other provider for her stress, anxiety or depression. Tr. 38.
Plaintiff stated that she experiences migraine headaches three or four times per week on a bad week, and two to three times on a good week. Tr. 38-39. Plaintiff described that when having a migraine, she lies down in a dark room and takes prescription strength ibuprofen for the pain. Tr. 39. Plaintiff stated that her migraines usually last for one or two days, and that her migraines can be triggered by stress or physical exertion. Tr. 39-41. Plaintiff testified that on good days, she can get her kids off to school, shower, and get dressed. Tr. 39. Plaintiff described that she could not maintain a full-time schedule due to her migraines and switched to seasonal work before ultimately quitting altogether. Tr. 40. Plaintiff maintains that she is unable to work a full-time schedule because her migraines are unpredictable. Tr. 42.
In a June 17, 2017 Function Report, Plaintiff provided that she experiences three-to-four migraines per week that can last for hours or even days, and that her migraines are accompanied by fatigue and dizziness. Tr. 168. In her Report, Plaintiff described that in a typical day, she gets her two children ready for school and takes them to school, and will do housework afterward if she has no symptoms. Tr. 169. Plaintiff further stated that she picks up her children from school, makes dinner, washes dishes, completes laundry, and puts the kids to bed. Tr. 169. Plaintiff described that she is responsible for feeding and caring for her two children, that she drives them to their after-school activities. Tr. 169. Plaintiff stated that she sometimes needs help completing chores from her children or their father. Tr. 169, 171. Plaintiff explains that when her migraines are flaring, she is unable to dress, bathe, and eats only prepared food. Tr. 170. Plaintiff stated that she can shop for groceries and clothing one time per week for approximately two hours. Tr. 171.
In the decision, the ALJ found that Plaintiff's subjective symptoms were not entirely consistent with the evidence in the record, citing several reasons: (1) her subjective symptoms are inconsistent with the medical evidence and her noncompliance or refusal to pursue treatments;, (2) daily activities are inconsistent with the alleged severity of symptoms; and (3) her receipt of unemployment benefits. After careful examination, the court readily finds the ALJ's reasons are specific, and clear and convincing.
1. contradiction with medical evidence/lack of medical evidence/ non-compliance
In evaluating a claimant's subjective symptom testimony, an ALJ may consider whether it is consistent with objective medical evidence. 20 C.F.R. § 404.1529(c)(1)-(3); SSR 16-3p, available at 2017 WL 5180304, at *7-8. A lack of objective medical evidence may not form the sole basis for discounting a claimant's testimony. Tammy S. v. Comm'r Soc. Sec. Admin., No. 6:17-cv-01562-HZ, 2018 WL 5924505, at *4 (D. Or. Nov. 10, 2018) (citing Reddick, 157 F.3d at 722 (“[T]he Commissioner may not discredit [a] claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence.”)). However, when coupled with other permissible reasons, inconsistencies between a claimant's allegations and objective medical evidence may be used to discount a claimant's testimony. Tatyana K. v. Berryhill, No. 3:17-cv-01816-AC, 2019 WL 464965, at *4 (D. Or. Feb. 6, 2019) (citing Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1197-98 (9th Cir. 2004)).
In the decision, the ALJ found Plaintiff's testimony that she is unable to work due to her migraine headaches undermined by the lack of objective findings, overall lack of medical evidence to support her claims, and her non-compliance with treatment recommendations. The ALJ accurately observed that “the record contains no opinion evidence from any treating source.” Tr. 23. The ALJ thoroughly discussed the medical evidence, made specific findings, and detailed several notable inconsistencies between Plaintiff's alleged functional limitations and her non-compliance with treatment.
For example, the ALJ noted that in November 2016, Plaintiff sought treatment for headaches and fatigue from her treating provider, Dena Witthaus, D.O. Tr. 21. The ALJ explained that Dr. Witthaus reported Plaintiff's physical examination was entirely normal, that Plaintiff was tearful, that Dr. Witthaus believed “stress was playing a large role in her headaches and she needs to work on this, ” and that Plaintiff refuses to use any antidepressants. Tr. 21-22, 242-43. The ALJ further discussed that Dr. Witthaus referred Plaintiff to neurology, and that Plaintiff failed to attend the neurology appointment that was scheduled in January 2017. Tr. 22, 254.
The ALJ discussed that on July 12, 2017, Dr. Witthaus continued to observe that stress was “playing a large role” in Plaintiff's headaches and that she refuses to consider antidepressants and “refuses trials with even low dose preventative migraine medications.” Tr. 22, 254. The ALJ explained how Dr. Witthaus again referred Plaintiff to neurology for evaluation and encouraged her not to miss her appointment, and that neurology may have other medications to recommend. Tr. 22, 254. The ALJ found that Plaintiff's testimony was inconsistent with Dr. Witthaus's treatment notes. Tr. 22. The ALJ specifically highlighted that Dr. Witthaus did not believe Plaintiff's headaches precluded work, stating that “‘I do not see her migraines as a reason she won't be able to work in the future.'” Tr. 22 (quoting Dr. Witthaus's July 12, 2017 treatment note at Tr. 254.) Contradiction with the medical record is a relevant basis for discounting a claimant's subjective symptom testimony. Carmickle, 533 F.3d at 1161 .
The also ALJ discussed how Dr. Witthaus noted the connection between Plaintiff's stress and anxiety, and the frequency of her headaches. Tr. 24. Specifically, the ALJ noted that Dr. Witthaus observed that Plaintiff is “significantly affected by anxiety surrounding her situation and her medical problems, ” that Dr. Witthaus provided information to Plaintiff about behavioral health options, that Dr. Witthaus would like to prescribe an anti-anxiety medication but Plaintiff “adamantly refuses, ” and that because Plaintiff forgets to take medications regularly, she would consider BuSpar. Tr. 24, 254. Further, ALJ found that Plaintiff's allegations about the severity of her stress and anxiety were undermined because Plaintiff has not “otherwise participated in any outpatient counseling or therapy, ” despite Dr. Witthaus's referral and recommendation. Tr. 24. 254. An “ALJ may properly rely on ‘unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment.'” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (quoting Tomasetti, 533 F.3d at 1039), superseded by regulation on other grounds as stated in Thomas v. Saul, 830 Fed.Appx. 196, 198 (9th Cir. 2020)
The ALJ detailed other examples of Plaintiff's noncompliance and failure to follow treatment recommendations. The ALJ explained that in July 2017, after Dr. Witthaus discovered Plaintiff was “markedly hyperthyroid, ” Plaintiff saw endocrinologist Harry S. Glauber, M.D., who prescribed methimazole and a low dose beta blocker, and that Dr. Glauber ordered further testing. Tr. 22, 252. As the ALJ correctly observed, Plaintiff filled one prescription for methimazole in October 2017, but she failed to follow up with Dr. Glauber and to comply with treatment. Tr. 22, 252-53, 331. As the ALJ accurately stated, as of October 2018, Plaintiff continued to be noncompliant with her hyperthyroid medication, as noted by endocrinologist, Laurie Hurtado Vessely, M.D., whose multiple attempts to reach Plaintiff by phone to discuss her condition were unsuccessful. Tr. 22, 23, 331.
The ALJ also discussed that in September 2017, Plaintiff was evaluated by neurologist Cara L. Rozell, M.D., for migraine headaches. Tr. 23. The ALJ noted that Dr. Rozell's neurologic examination was completely normal, and Dr. Rozell administered Botox injections that day. Tr. 23. The ALJ noted that Plaintiff reported to Dr. Rozell in December 2017 that the injection was helpful for one week, then she returned to baseline. Tr. 23. The ALJ observed that Dr. Rozell administered higher doses of Botox in December 2017. Tr. 23, 318. The ALJ further noted that Plaintiff's follow-up was some ten months later, and that Plaintiff failed to show for the appointment. Tr. 23, 322. Gaps in a treatment regimen may provide a clear and convincing reason to discount subjective symptom testimony. Marsh v. Colvin, 792 F.3d 1170, 1173 n.2 (9th Cir. 2015). The court finds that the ALJ's interpretation of Plaintiff's medical record is wholly supported by substantial evidence.
Plaintiff contends that the ALJ erred in discounting her subjective symptoms based on her refusal to take or try certain medications, because she has tried numerous medications previously without success and because she cannot take medications that need to be taken at consistent times due to memory problems. Pl.'s Opening Br. at 6, 8. Plaintiff argues she was compliant with the treatment plan concerning her migraines, contending that she attended an appointment with Dr. Rozell on October 17, 2018, who then recommended additional medication trials, and she notes that at the hearing, she testified she had not yet picked up that medication from the pharmacist. Id.; Tr. 38. Plaintiff's explanations are not convincing.
In her briefing, Plaintiff erroneously attributes treatment notes from Dr. Witthaus to Dr. Glauber. Compare Pl.'s Opening Br. at 6 with Tr. 252-254.
The ALJ detailed numerous missed appointments, lengthy gaps in treatment, and several refusals to try new medications and take prescribed medications. Although Plaintiff's refusal to take antidepressants may be premised on prior adverse experiences, she fails to explain why she did not comply with other treatment recommendations, such as taking hyperthyroid medications, seeking out therapy for better control of her stress, and showing up for appointments with health care providers. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (holding claimant's “unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment” may cast doubt on testimony). Even if the evidence could be interpreted as Plaintiff suggests, the ALJ's interpretation is rational on this record and the court may not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the ALJ's credibility finding is supported by substantial evidence in the record, we may not engage in second-guessing.”); Campbell v. Saul, 848 Fed.Appx. 718, 721-22 (9th Cir. 2021) (upholding ALJ's rejection of subjective symptom testimony in part because his complaints were not supported by any medical source opinion).
Moreover, contrary to Plaintiff's current assertion that memory or cognitive issues prevent her from taking certain medications, the ALJ noted that testing with consultative examining psychologist John Adler, Ph.D., revealed Plaintiff had “‘no cognitive problems and she appears very capable with understanding and remembering both simple and complex ideas and instructions, and performs well with sustained attention, concentration, memory, and pace.'” Tr. 24 (quoting Dr. Adler's July 27, 2017 evaluation at Tr. 271.) Notably, Plaintiff does not challenge the ALJ's evaluation of the medical evidence from any physician, including Dr. Adler. Therefore, the court finds that the ALJ's first rationale for discounting Plaintiff's subjective symptom testimony is supported by substantial evidence and is a reasonable interpretation of the record as whole. See Batson, 359 F.3d at 1193 (holding if evidence exists to support more than one rational interpretation, the court is bound to uphold the ALJ's findings).
2. daily activities
An ALJ may invoke activities of daily living (“ADLs”) in the context of discrediting subjective symptom testimony to: (1) illustrate a contradiction in previous testimony; or (2) demonstrate that the activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ discussed Plaintiff's ADLs to illustrate the former.
The ALJ observed that Plaintiff's allegations of totally disabling symptoms are not consistent with her daily activities. Tr. 24. The ALJ detailed that Plaintiff engaged in numerous activities inconsistent with her allegations of disabling symptoms. Tr. 24. The ALJ noted that at the hearing, Plaintiff complained of headaches three-to-four times per week and that she takes only prescription strength ibuprofen to manage them. Tr. 20. The ALJ noted that Plaintiff testified she recently received a new prescription for her headaches that she had not yet picked up from the pharmacy. Tr. 21. The ALJ noted that Plaintiff described that her migraines can be triggered by stress, lifting heavy objects, physical exertion, and walking long distances. Tr. 21. The ALJ further noted that Plaintiff reported her headaches can last up to two days at a time and that when experiencing a migraine, she sleeps a lot in a dark room. Tr. 21.
The ALJ also indicated that Plaintiff reported to Dr. Adler that she does most of the shopping, cooking, laundry, all household chores with some help from her young daughter, that she travels by herself three or four times per week, she manages her household finances, and is responsible for getting her children to and from school, as well as transporting them to other afterschool activities. Tr. 24, 269-70. The ALJ's findings are supported by substantial evidence in the record as a whole.
In her reply, Plaintiff contends she has good weeks and bad weeks and that her symptoms wax and wane, and the ALJ erred in discounting her testimony on this basis. Pl.'s Reply at 3. The court disagrees. In her hearing testimony, Plaintiff testified that she experiences migraines “three or four times a week on a bad week, and on a good week, two or three times a week.” Tr. 38-39. Plaintiff further testified that they “affect me for two or three days at a time.” Tr. 40.
Based on the quantity and variety of daily activities described by Plaintiff in the record and to Dr. Adler, the ALJ reasonably could find that Plaintiff's symptom testimony was inconsistent with her allegations of total disability and discount it on that basis. Thomas, 278 F.3d at 959 (upholding ALJ's adverse credibility determination where claimant's testimony was inconsistent with her ability “to perform various household chores such as cooking, laundry, washing dishes, and shopping”); see Nicole B. v. Comm'r Soc. Sec. Admin., 3:20-cv-00925-YY, 2021 WL 4488587, at *4 (D. Or. Sept. 30, 2021) (finding claimant's medical record and daily activities did not support severity of symptoms alleged). The court further concludes that on this record, when the ALJ's first and second rationales are combined, they readily amount to clear and convincing support for the ALJ's rejection of Plaintiff's subjective symptom testimony. Molina, 659 F.3d at 1113 (finding failure to follow treatment and daily activities inconsistent with allegations of total disability).
3. unemployment benefits
In the decision, the ALJ discounted Plaintiff's subjective symptom testimony in part because she received several weeks of unemployment benefits after her alleged onset of disability. Tr. 21. The ALJ found that “in applying for and receiving unemployment benefits” Plaintiff certified that she “was able and willing to work, ” which is inconsistent with her allegation that her disability made her unable to work during that same period. Tr. 24.
Plaintiff argues the ALJ erred in discounting her subjective symptom testimony based on her receipt of unemployment benefits because the record is unclear whether she held herself out as able to work full-time or part-time. “Continued receipt of unemployment benefits does cast doubt on a claim of disability, as it shows that an applicant holds himself out as capable of working.” Ghanim, 763 F.3d at 1165 (citing Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988)). Plaintiff correctly notes the record is silent whether she held herself out as able to work full-time, and that part-time work is not necessarily inconsistent with disability. Carmickle, 533 F.3d at 1161-62 (finding ALJ erred in discounting claimant's testimony on basis of unemployment benefits because record did not establish whether claimant “held himself out as available for fulltime or part-time work”). However, any such error is harmless here. The ALJ provided alternative clear and convincing reasons, backed by substantial record evidence, for rejecting Plaintiff's subjective symptom testimony. Id. at 1162 (holding ALJ's reliance on claimant's receipt of unemployment benefits was harmless where ALJ provided other clear and convincing reasons supported by substantial evidence). Accordingly, any error by the ALJ in relying Plaintiff's receipt of unemployment benefits is “inconsequential to the ultimate nondisability determination” and reversal on this basis is unwarranted. Batson, 359 F.3d at 1197.
Likewise, the court rejects Plaintiff's other arguments. She contends the ALJ “cherry-picked” the record. Pl.'s Opening Br. at 9. The court acknowledges that “it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working, ” Garrison, 759 F.3d at 1017, but the ALJ did not do that here. Plaintiff does not challenge the ALJ's assessment of the medical opinion evidence and the record contains scant evidence to support Plaintiff's allegations of intractable migraines. What little record evidence that does exist suggests Plaintiff's migraines are stress-induced and that Plaintiff repeatedly has been unwilling to follow treatment recommendations to address that issue; thus, the ALJ appropriately discounted her symptom testimony on that basis. Plaintiff disagrees with the ALJ's analysis, but the ALJ's findings are fully supported by substantial evidence, are a reasonable interpretation of that evidence, and therefore must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.”). See also Kevin R. H. v. Saul, Case No. 6:20-cv-00215-IM, 2021 WL 4330860, at *8 (D. Or. Sept. 23, 2021) (rejecting claimant's suggestion that ALJ cherry-picked record and that his mental health symptoms wax and wane where ALJ's findings adequately supported and were reasonable interpretation of record).
Plaintiff's suggestion that she failed to seek treatment because she cannot afford it and that the ALJ inappropriately discounted her testimony on this basis is meritless. Pl.'s Opening Br. at 9. Plaintiff provides no record citations where she asserted such a basis. The court observes that at the hearing, Plaintiff testified that she failed to seek further hyperthyroid treatment because “it really hadn't been affecting me, ” and when asked if she had followed up with a psychologist because her headaches are stress-related, Plaintiff responded that she had not followed up: “I had full intention of doing that and I just haven't been able to actually do it.” Tr. 37-38. Dr. Witthaus's treatment note reveals that Plaintiff reported that she missed her neurology appointment because she did not receive a reminder phone call. Tr. 254. Plaintiff's contention that she failed to follow treatment recommendations because she could not afford to do so and that the ALJ rejected her testimony on that basis simply is untrue and wholly unsupported by the record.
Finally, the ALJ did not err by failing to develop the record fully and fairly because “[a]n ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Plaintiff's counsel at the hearing did not request to keep the hearing open to submit additional documentation and, in any event, Plaintiff fails to explain how the record was ambiguous or inadequate. Plaintiff's contention is rejected.
In short, the ALJ provided specific, clear and convincing reasons, backed by substantial evidence, for rejecting Plaintiff's subjective symptom testimony. Any error by the ALJ in assessing her subjective symptom testimony was harmless. Baston, 359 F.3d at 1195-97.
II. The ALJ Did Not Err in Evaluating the Lay Witness Testimony
Lay testimony regarding a claimant's symptoms or how an impairment affects her ability to work is competent evidence that an ALJ must take into account. Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017). An ALJ may discount lay-witness testimony by providing reasons germane to each witness. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). “The Ninth Circuit has determined that ‘an ALJ's failure to comment upon lay witness testimony is harmless where the same evidence that the ALJ referred to in discrediting the claimant's claims also discredits the lay witness's claims.'” Kevin R.H., 2021 WL 4330860, at *8 (quoting Molina, 674 F.3d at 1122) (cleaned up). Thus, an ALJ's failure to consider a lay-witness statement may be harmless if it is “inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1122 (holding ALJ's failure to discuss lay testimony harmless where “the ALJ's reasons for rejecting [claimant's] testimony apply with equal force to the lay testimony”).
Plaintiff correctly highlights that the ALJ erred by failing to discuss the lay witness statement provided by her partner, Tim M. Pl.'s Opening Br. at 10; see also Tr. 194-201 (Third-Party Function Report). In his statement, Tim M. provides that Plaintiff “often complains about her head hurt[ing] and she needs to sit down/lay down, ” that she tires easily, has difficulty “playing for long periods of time, ” and does not handle stress well and gets headaches and migraines. Tr. 194, 198, 200. Tim M. also states that Plaintiff is unable to maintain a job because she needs to lie down, and she is capable of cooking simple meals and other household chores, except when she is sick. Tr. 194, 196.
To protect privacy, the court uses only the first name and initial of the last name of Plaintiff's partner.
The court finds the ALJ's error is harmless. The lay testimony here does not describe limitations not already described by Plaintiff. Molina, 674 F.3d at 1117. For example, Plaintiff stated that she lies down when experiencing a migraine, that she tires easily, and that she does not handle stress well. Tr. 39-40, 168, 174. Plaintiff similarly discussed that she engages in a variety of daily activities, and that she takes breaks from such chores when experiencing a migraine. Tr. 168-71. As explained above, the ALJ provided specific, clear and convincing reasons for discounting Plaintiff's substantially similar subjective symptom testimony by citing conflicts with medical evidence, the overall lack of objective findings, failure to follow through on treatment recommendations, and her extensive daily activities that undermine her allegations of total disability. Molina, 674 F.3d at 1122 (noting ALJ validly discounted claimant's testimony based in part on daily activities which applied to similar lay witness testimony). Therefore, the court confidently concludes that the ALJ's failure to discuss the lay testimony was “inconsequential to the ultimate nondisability determination.” Id.; accord June K. v. Saul, 6:19-cv-1548-SI, 2021 WL 2179262, at *8 (D. Or. May 28, 2021) (holding ALJ did not err in improperly rejecting lay testimony because “lay witness testimony did not describe any limitations not also described by Plaintiff”). Accordingly, the ALJ's error was harmless.
III. The ALJ Did Not Err in Incorporating Credited Testimony in the RFC
Plaintiff argues the ALJ erred by failing to include all of her limitations into the RFC assessment and the hypothetical questions posed to the vocational expert. She argues the RFC and hypothetical questions are inadequate because they failed to include her need for extra breaks and that she would miss work two to three days per week due to her disabling migraines. Plaintiff's arguments largely restate her arguments that the ALJ erred in evaluating her subjective symptom testimony.
The ALJ is required to include only those limitations in the RFC and, by extension, hypothetical questions posed to the VE, which are supported by substantial evidence. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001); 20 C.F.R. § 404.1545(a) (discussing RFC). As discussed above, the ALJ provided clear and convincing reasons for discounting Plaintiff's subjective symptom testimony, Plaintiff does not challenge the ALJ's evaluation of the medical opinion evidence, and the ALJ did not commit harmful error with respect to the lay testimony.
Because the court has not found any harmful errors in the ALJ's analysis of Plaintiff s subjective symptoms, the medical evidence, or lay testimony, the ALJ's RFC included all those limitations found credible and supported by substantial evidence. Thus, the ALJ did not err in formulating the RFC and hypothetical posed to the vocational expert. Osenbrock, 240 F.3d at 1163-65; Karabajakyan v. Berryhill, 713 F. App'x. 553, 556-57 (9th Cir. 2017) (where subjective symptom testimony and medical opinion evidence properly weighed by ALJ, no credited limitations remained to be incorporated into RFC and hypothetical to VE); Marina P. v. Comm'r Soc. Sec. Admin., 3:18-cv-00236-AC, 2019 WL 12360976, at *17 (D. Or. Sept. 27, 2019), adopted 2020 WL 589531 (D. Or. Feb. 6, 2020) (same).
Conclusion
For the reasons stated above, the court finds that the ALJ did not commit harmful legal error and recommends that the ALJ's final decision be AFFIRMED.
Scheduling Order
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.