Wayment v. Kijakazi

Filing 18

MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED that: The decision of the Commissioner of Social Security is REVERSED. This action shall be REMANDED to the Commissioner for further proceedings consistent with this opinion. This Remand shall be considered a sentence four remand, consistent with 42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Signed by US Magistrate Judge Debora K Grasham. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ac)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
SHARON W., 1
Plaintiff,

Case No. 1:22-cv-00013-DKG
MEMORANDUM DECISION
AND ORDER

v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security
Administration, 2
Defendant.

INTRODUCTION
Plaintiff filed a Complaint with this Court seeking judicial review of the
Commissioner’s denial of her applications for disability and disability insurance benefits,
and supplemental social security income. (Dkt. 1.) The matter is fully briefed and at
issue. (Dkt. 14-16.) Having carefully reviewed the parties’ memoranda and the entire
administrative record (AR), the Court will reverse and remand the decision of the
Commissioner for the reasons set forth below.

1

Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil
Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and
Case Management of the Judicial Conference of the United States.
2

Kilolo Kijakazi became the Acting Commissioner of Social Security Administration on
July 9, 2021.

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BACKGROUND
On June 5, 2019, Plaintiff protectively filed a Title II application for a period of
disability insurance benefits and a Title XVI application for supplemental security
income. (AR 273-283.) 3 The applications allege a disability onset date of November 7,
2016. (AR 13.) The alleged onset date was later amended to June 5, 2019. (AR 13, 35.)
Plaintiff’s applications were denied upon initial review and on reconsideration. (AR 13.)
A hearing was conducted on November 17, 2020, before Administrative Law Judge
(ALJ) David Willis. (AR 13.) 4
After considering testimony from Plaintiff and a vocational expert, the ALJ issued
a written decision on February 23, 2021, finding Plaintiff has not been under a disability
since June 5, 2019. (AR 13-25.) The Appeals Council denied Plaintiff’s request for
review on November 16, 2021, making the ALJ’s decision final. (AR 1-3.) Plaintiff
timely filed this action seeking judicial review of the ALJ’s final decision on January 11,
2022. (Dkt. 1.) The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
On the amended alleged onset date, Plaintiff was fifty-seven years of age. (AR
275.) Plaintiff completed one year of college and has past relevant work experience as a
cashier, customer service representative at a call center, customer service representative

3

Plaintiff filed a previous Title II application for benefits dated January 26, 2017, which
was denied. (AR 102-110.) Thus, the relevant time period for the applications that are the subject
of the Petition for review presently before the Court runs from the amended onset date of June 5,
2019, to the date last insured of September 30, 2021.
4

The hearing was conducted telephonically due to the Coronavirus Pandemic of 2019
(COVID-19). (AR 34-35.)

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at an insurance company, and a production worker. (AR 24, 333.) Plaintiff claims
disability due to anxiety and depression, bilateral degenerative disc disease, gout, arthritis
in lower back, bilateral knee pain, and stroke. (AR 118.)
THE ALJ’S DECISION
Disability is the “inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step
sequential inquiry to determine whether a claimant is disabled within the meaning of the
Act. 20 C.F.R. § 404.1520; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006)
(discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)).
Here, at step one, the ALJ found Plaintiff had not engaged in substantial gainful
activity since the alleged onset date. (AR 16.) At step two, the ALJ determined Plaintiff
suffers from the following medically determinable severe impairments: degenerative disc
disease, dysfunction of major joints of the bilateral knees, and obesity. (AR 16.) The ALJ
concluded Plaintiff’s cardiac dysrhythmias, sleep-related breathing disorder, diabetes,
osteoarthritis, bilateral plantar fasciitis, essential hypertension, thyroid gland disorder,
migraines, and depression and anxiety were not severe. (AR 16-17.)
At step three, the ALJ determined that, through the date last insured, Plaintiff did
not have an impairment or combination of impairments that meets or medically equals
the severity of a listed impairment. (AR 18-19.) The ALJ next found Plaintiff retained the
Residual Functional Capacity (RFC) for sedentary work with the following limitations:
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[S]he can lift and/or carry twenty pounds occasionally and ten pounds
frequently, and she can stand or walk for two hours each in an eight-hour
workday. The claimant can also sit for six hours in an eight-hour workday.
Additionally, the claimant can occasionally reach overhead with the
bilateral upper extremities, and she can frequently handle and finger with
both hands. The claimant can also occasionally climb ramps and stairs, but
she can never climb ladders, ropes, or scaffolds. Further, the claimant can
frequently balance, and she can occasionally stoop, kneel, crouch, and
crawl. Finally, the claimant can occasionally work around unprotected
heights, moving mechanical parts, and vibrations.
(AR 19.)
At step four, the ALJ found Plaintiff was able to perform past relevant work as a
customer service representative. (AR 24.) The ALJ therefore determined Plaintiff was not
disabled from the alleged onset date, through the date of the decision February 23, 2021.
ISSUES FOR REVIEW
1.

Whether the ALJ properly evaluated the medical opinion evidence.

2.

Whether the ALJ properly considered Plaintiff’s subjective symptom statements.

3.

Whether the ALJ properly addressed the lay witness statements.

4.

Whether the RFC is supported by substantial evidence.
STANDARD OF REVIEW
The Court will uphold an ALJ’s decision unless: 1) the decision is based on legal

error, or 2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874
F.3d 648, 654 (9th Cir. 2017). Substantial evidence 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). This requires “more than a mere scintilla” of evidence. Id.

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The Court must consider the administrative record as a whole. Garrison v. Colvin,
759 F.3d 995, 1009 (9th Cir. 2014). It must weigh both the evidence that supports, and
the evidence that does not support, the ALJ’s conclusion. Id. The Court considers only
the reasoning and actual findings identified by the ALJ and may not affirm for a different
reason or based on post hoc rationalizations attempting to infer what the ALJ may have
concluded. Id. at 1010; Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th
Cir. 2009). It is unnecessary for the ALJ to “discuss all evidence presented.” Vincent on
Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted)
(emphasis in original). The ALJ must, however, explain why “significant probative
evidence has been rejected.” Id.
If the ALJ’s decision is based on a rational interpretation of conflicting evidence,
the Court must uphold the ALJ’s finding. Carmickle v. Comm’r of Soc. Sec. Admin., 533
F.3d 1155, 1165 (9th Cir. 2008). The Court “may not substitute [its] judgment for that of
the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). The Court
will not reverse the ALJ’s decision if it is based on harmless error, which exists where the
error is “inconsequential to the ultimate nondisability determination, or if despite the
legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin,
806 F.3d 487, 492 (9th Cir. 2015) (internal marks and citations omitted); see also Molina
v. Astrue, 674 F.3d 1104, 1117–1122 (9th Cir. 2012).
DISCUSSION
1.

Medical Opinion Evidence
Plaintiff assigns error to the ALJ’s evaluation of the opinion evidence of Mark

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Williams, D.O., and the state agency medical consultants, Leslie Arnold, M.D., and
Robert Vestal, M.D. (Dkt. 14, 16.) Respondent maintains the ALJ properly considered
the medical opinion evidence under the appliable regulations. (Dkt. 15.)
A.

Legal Standard

The Commissioner revised the regulations applicable to the evaluation of medical
evidence for disability applications filed on or after March 27, 2017. See Revisions to
Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01 (Jan. 18,
2017). 5 Under the revised regulations, the ALJ is no longer required to give deference to
any medical opinion, including treating source opinions. See 20 C.F.R. §§ 404.1520c(a);
416.920c; Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (ALJs no longer need to
“provide ‘specific and legitimate reasons’ for rejecting a treating or examining doctor’s
opinion.”). Instead, the ALJ evaluates the persuasiveness of the opinions based on several
factors. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). These are: supportability, consistency,
relationship to the claimant, specialization, and other factors. 20 C.F.R. §§
404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The most important factors in the evaluation
process are supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2),
416.920c(b)(2).
“Supportability means the extent to which a medical source supports the medical
opinion by explaining the ‘relevant ... objective medical evidence.’” Woods, 32 F.4th at
791-792 (quoting 20 C.F.R. § 404.1520c(c)(1)); see also 20 C.F.R. § 416.920c(c)(1).

5

Plaintiff filed her application on June 5, 2019, therefore the revised regulations apply.

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“Consistency means the extent to which a medical opinion is ‘consistent ... with the
evidence from other medical sources and nonmedical sources in the claim.’” Id. (quoting
20 C.F.R. § 404.1520c(c)(2)); see also 20 C.F.R. § 416.920c(c)(2).
Under this framework, the ALJ is required to articulate how persuasive they find
the evidence and explain how the supportability and consistency factors were considered.
20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ may, but is not required to,
explain how the other persuasive factors in paragraphs (c)(3) through (c)(5) were
considered. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). However, when two or more
medical opinions or prior administrative findings “about the same issue are both equally
well-supported ... and consistent with the record ... but are not exactly the same,” the ALJ
is required to explain how the other persuasive factors were considered. 20 C.F.R. §§
404.1520c(b)(3), 416.920c(b)(3). The ALJ’s persuasiveness determination under the
revised regulations must be supported by substantial evidence. See Woods, 32 F.4th at
787 (“Now, an ALJ’s decision, including the decision to discredit any medical opinion,
must simply be supported by substantial evidence.”).
In fashioning a claimant’s RFC, the ALJ must consider all relevant evidence in the
record, including medical records, and “the effects of symptoms, including pain, that are
reasonably attributable to the medical condition.” Robbins v. Comm’r of Soc. Sec.
Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citation omitted). The ALJ is not obligated to
discuss every piece of evidence when interpreting the evidence and developing the
record, or discuss every word of a medical opinion or include limitations not assessed by
a medical source. Edwin C. v. Kijakazi, 2021 WL 7286046, at * 6 (C.D. Cal. Nov. 19,
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2021) (citing Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)).
“However, the ALJ must discuss significant and probative evidence that is contrary to the
ALJ’s findings and explain why it has been rejected.” Id. (citing Robbins, 466 F.3d at
883; Vincent, 739 F.2d at 1395).
With the above considerations in mind, the Court now turns to the ALJ’s
evaluation of the medical opinions.
B.

Analysis

Dr. Williams, Plaintiff’s treating physician, provided a physical medical
assessment dated October 26, 2020. (AR 1168-1171.) Williams opined that Plaintiff
could stand/walk a total of two hours during an eight-hour workday, due to her
“significant arthritis, plantar fasciitis, and history of gout in ankles [and] feet.” (AR
1168.) Williams found Plaintiff was able to sit for eight hours during a workday, without
interruption. (AR 1169.) Plaintiff could occasionally carry thirty pounds, and frequently
carry twenty pounds, due to arthritis in her feet, ankles, and bilateral wrist CMC 6 joints.
Williams concluded Plaintiff was limited to occasionally performing all postural
activities due to bilateral foot and ankle DJD 7, plantar fasciitis, wrist DJD, and
reoccurrence of swelling. (AR 1169.)
As to other physical functions, Williams found Plaintiff could constantly see, hear,
and speak; frequently reach and feel; occasionally push/pull; and, importantly here, could

6

“CMC” is an abbreviation for carpometacarpal, which are the joints of the wrist.

7

“DJD” is an abbreviation for degenerative joint disease.

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occasionally handle. (AR 1170.) These limitations, Williams noted, result from Plaintiff’s
“wrist (CMC) joint DJD difficult with grasp and fine motor use.” (AR 1170.) Williams
also imposed environmental restrictions related to moving machinery, temperature
extremes, and vibrations due to Plaintiff’s push/pull limitations, arthritis, and painful
wrist joints. (AR 1170.)
The ALJ found Williams’ opinion “somewhat persuasive as it was consistent with
some of the objective medical evidence.” (AR 23.) On this point, the ALJ cited to one
medical record dated October 14, 2020, related to Plaintiff’s chronic problems with
bilateral knee pain and obesity. (AR 1142.) The ALJ noted that the record reflected
Plaintiff’s extremities had a normal range of motion and her BMI. (AR 23.)
The ALJ next found Williams’ opinion “included limited internal support but it
did note some of the claimant’s diagnoses, such as arthritis and degenerative joint
disease.” (AR 23.) In support of this finding, the ALJ cited the first two pages of
Williams’ assessment assigning limitations for standing, walking, sitting, lifting/carrying,
and postural activities. (AR 23) (citing AR1168-69).
Notably, neither the ALJ’s summary of Williams’ opinion nor the ALJ’s
discussion of the persuasiveness factors addressed the limitation to occasional handling.
(AR 23.) The lone record cited by the ALJ in his discussion of Williams’ opinion, did not
concern Plaintiff’s ability to handle or grip. (AR 23) (citing AR 1142.) Further, the
portions of the opinion itself cited and discussed by the ALJ did not include the handling
limitation. Indeed, the ALJ’s decision on whole is absent any mention of Williams’
opinion regarding Plaintiff’s ability to handle or any discussion of medical records related
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to handling. This, the Court finds, was error.
Plaintiff’s limitation with handling was significant and probative evidence that the
ALJ was required to address. While the ALJ “need not discuss all evidence presented,”
Vincent, 739 F.3d at 1394-95, the ALJ “may not reject ‘significant probative evidence’
without explanation,” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting
Vincent, 739 F.2d at 1395). Further, the “ALJ’s written decision must state reasons for
disregarding [such] evidence.” Flores, 49 F.3d at 571.
Here, Plaintiff’s ability to handle relates to her ability to perform basic work
activities and her ability to be employed, as evidenced by the fact that the RFC limited
Plaintiff to frequent handling. Thus, the ALJ erred by failing to discuss Williams’ opinion
limiting Plaintiff to occasional handling. Because the ALJ’s decision is silent regarding
Williams’ opinion concerning handling, the Court is unable to determine whether the
ALJ properly considered the opinion or simply ignored the evidence.
In contrast, the state agency consultants opined that Plaintiff was limited to
frequent bilateral fingering and handling. (AR 126, 139, 154, 170.) In so finding, the
consultants noted that Plaintiff “maintains the capacity to work with large and small
objects,” crochet, and work part time and with farm animals at home. Id. The ALJ found
the consultants’ opinions persuasive, “as they were consistent with a majority of the
objective medical evidence,” and “also internally supported by the inclusions of findings
from the record.” (AR 23.)
However, the ALJ’s summary of the consultants’ opinions does not include that
Plaintiff was limited to frequent handling and fingering. Rather, the ALJ stated the
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consultants opined that Plaintiff “could perform limited handling.” (AR 23) (emphasis
added). Further, the ALJ’s discussion of the supportability and consistency factors for the
consultants’ opinions did not address fingering and handling. Rather, the ALJ cites one
treatment record from an October 7, 2020 appointment for bilateral knee pain. (AR 23)
(citing AR 991.) The ALJ similarly relied on particular portions of the consultants’
opinions that discuss medical records related to Plaintiff’s bilateral knee pain, obesity,
and plantar fasciitis. (AR 23) (citing 122, 172 as internal support for the opinions based
on findings from the record such as BMI, no gait disturbance, and five out of five foot
strength). 8
Plaintiff argues the ALJ erred in evaluating the opinion evidence by failing to
discuss and reconcile the differing opinions concerning handling and fingering
limitations. (Dkt. 14, 16.) Defendant maintains the ALJ expressly considered Plaintiff’s
handling limitations and adopted the state agency consultants’ findings. (Dkt. 15.)
Having carefully reviewed the record and the parties’ briefing, the Court finds the
ALJ erred in evaluating the opinion evidence by failing to discuss and reconcile the
differing opinions concerning Plaintiff’s limitations with handling, and by failing to offer
any explanation of his reasoning for including frequent, rather than occasional, handling
8

The portion of Vestal’s opinion cited by the ALJ discusses a treatment record dated
October 28, 2019, which contained findings that Plaintiff complained of right wrist pain but had
nearly full grip strength. (AR 172) (discussing AR 880-881.) However, the ALJ did not refer to
those findings. (AR 23.) Rather, the ALJ identified portions of the record related to BMI, gait,
and foot strength. (AR 23.) The Court may not speculate as to the ALJ’s reasoning. In the
absence of any explanation, the Court reviews only the findings articulated by the ALJ. Although
the medical record cited by the ALJ here contained some findings concerning handling,
fingering, grip strength, and wrist pain, the ALJ did not discuss those findings.

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in the RFC. See SSR 96-8p (“If the RFC assessment conflicts with an opinion from a
medical source, the adjudicator must explain why the opinion was not adopted.”).
It appears the ALJ adopted the consultants’ opinions of frequent handling by
incorporating that limitation into the RFC. But, without any discussion or explanation
from the ALJ, the Court can only guess at the ALJ’s reasoning for doing so. Absent any
explanation, it is impossible for the Court to meaningfully review whether the ALJ’s
reasoning was a correct application of the regulations and was supported by substantial
evidence. Brown-Hunter, 806 F.3d at 492 (holding the agency must “set forth the
reasoning behind its decisions in a way that allows for meaningful review,” and courts
are “constrained to review the reasons the ALJ asserts.”). Nor is the Court able to readily
discern the bases for the ALJ’s decision. Molina, 674 F.3d at 1121 (An ALJ’s reasoning
may be upheld where it can “reasonably be discerned.”). Consequently, the Court cannot
uphold the ALJ’s decision. Brown-Hunter, 806 F.3d at 492 (“A clear statement of the
agency’s reasoning is necessary because we can affirm the agency’s decision to deny
benefits only on the grounds invoked by the agency.”); Rounds v. Comm’r of Soc. Sec.
Admin., 807 F.3d 996, 1004 (9th Cir. 2015) (“This Court cannot affirm the decision of an
agency on a ground that the agency did not invoke in making its decision.”). This error,
the Court finds, was harmful.
Harmless error exists “when it is clear from the record that the ALJ’s error was
inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533
F.3d 1035, 1038 (9th Cir. 2008) ((citation and internal quotation marks omitted)); see
also Marsh v. Colvin, 792 F.3d 1170, 1172–73 (9th Cir. 2015). Here, had the ALJ
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adopted Williams’ opinion limiting Plaintiff to occasional handling, the ALJ’s step four
finding and, possibly, the ultimate nondisability determination would have been different
given the vocational expert’s testimony that occasional handling would preclude Plaintiff
from performing past relevant work. (AR 56-58.) The ALJ’s error was therefore not
inconsequential to the determination. On remand, the ALJ must properly evaluate the
medical opinion evidence, reassess the RFC, and re-evaluate the findings at Step 5 to
determine if there are jobs existing in significant numbers in the national economy that a
person with Plaintiff’s RFC can perform. See SSR 96-8p (“The RFC assessment must
always consider and address medical source opinions.”); Valentine v. Comm’r of Soc.
Sec. Admin., 574 F.3d 685, 690 (“[A]n RFC that fails to take into account a claimant’s
limitations is defective.”).
The reasons proffered by Defendant to support the ALJ’s decision are
impermissible post hoc arguments. (Dkt. 15 at 9-12.) “Long-standing principles of
administrative law require us to review the ALJ’s decision based on the reasoning and
factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit
what the adjudicator may have been thinking.” Bray., 554 F.3d at 1225. The Court must
review the ALJ’s decision based on the reasoning and findings offered by the ALJ in the
written decision. See Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001).
While the Defendant’s reasoning may be a rational interpretation of the decision
and record, the ALJ’s written decision itself does not articulate any reasons for including
frequent handling in the RFC, as opposed to occasional handling. Indeed, the ALJ did not
discuss any medical records relevant to Plaintiff’s limitations with handling. The ALJ’s
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evaluation of the opinion evidence only mentioned Plaintiff’s ability to handle was
“limited” in summarizing the state agency opinions. (AR 23) (noting the consultants’
opined that Plaintiff could “perform limited handling”). This, despite the ALJ questioning
Plaintiff about her hand pain and inquiring of the vocational expert about frequent versus
occasional handling during the hearing. (AR 48-49, 51-52, 56-58.) Plaintiff’s counsel
also raised the handling limitation during the hearing. (AR 60.) Thus, the ALJ was aware
that Plaintiff’s limitations with handling was relevant, but still did not discuss or explain
the reasons for including frequent handling in the RFC and for rejecting Williams’
opinion that Plaintiff could occasionally handle.
For these reasons, the Court finds the ALJ erred in evaluating the opinion evidence
by failing to discuss the differing limitations related to handling, and by incorporating a
handling limitation in the RFC without articulating his reasoning for doing so. This was
harmful legal error requiring remand. Consequently, the Court need not address each of
Plaintiff’s other assignments of error. The Court will, however, discuss below the ALJ’s
consideration of the lay witness statements under the new regulations.
2.

Lay Witness Statements
Plaintiff’s mother submitted a functional assessment and a supplemental letter

describing Plaintiff’s impairments. (AR 352-360, 399.) The ALJ’s decision briefly
mentions the functional assessment in the written decision, but not the letter, stating: the
“third party functional report…included similar allegations and activities of daily living
as those included in the functional report completed by the claimant.” (AR 21.) The ALJ
generally concluded that Plaintiff’s described daily activities were inconsistent with her
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allegations of disabling symptoms and limitations.
Defendant argues the ALJ was not required to discuss the lay statements under the
revised regulations, and any error was harmless. (Dkt. 15 at 12-13.) Plaintiff maintains
the ALJ harmfully erred in failing to provide a germane reason for disregarding the lay
witness statements, which corroborated Plaintiff’s symptom testimony. (Dkt. 14 at 15-16,
and 16 at 6.)
The revised regulations applicable to claims filed after March 27, 2017, state that
an ALJ is “not required to articulate how [he or she] considered evidence from
nonmedical sources.” 20 C.F.R. §§ 404.1520c(d), 416.920c(d). Prior to the revisions,
however, the Ninth Circuit required an ALJ to provide germane reasons for discounting
lay witness testimony. Molina, 674 F.3d at 1111; Turner v. Comm’r of Soc. Sec. Admin.,
613 F.3d 1217, 1224 (9th Cir. 2010).
The Ninth Circuit has not yet addressed whether the revised regulations change the
requirement for germane reasons to discount lay witness testimony. See Robert U. v.
Kijakazi, 2022 WL 326166, at *7 (D. Or. Feb. 3, 2022) (noting the Ninth Circuit has not
addressed the question and that courts in the circuit are split, but concluding “the ALJ
must continue to give germane reasons for discounting lay witness testimony” because
the new regulations did not unambiguously remove the obligation). “It is, therefore,
unclear whether, under Ninth Circuit law, an ALJ must continue to provide germane
reasons to disregard lay witness statements.” Allen v. Kijakazi, 2022 WL 952083, at * 6
(D. Mont. March 30, 2022) (citing Singh v. Comm’r of Soc. Sec. Admin., 2021 WL
4078021, at *7 (E.D. Cal. Sept. 8, 2021); and comparing, Wendy J.C. v. Saul, 2020 WL
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6161402, at *12 n.9 (D. Or. Oct. 21, 2020) (holding under the new regulations, “the ALJ
is no longer required to provide reasons germane to lay witnesses to reject their
testimony”) with Gregory E.H. v. Comm’r of Soc. Sec. Admin., 2022 WL 843393, at *7
(D. Or. Mar. 22, 2022) (finding ALJ erred by not providing reasons germane to disregard
lay witness testimony, but that the error was harmless); Joseph M.R. v. Comm’r of Soc.
Sec. Admin., 2019 WL 4279027, at *12 (D. Or. Sept. 9, 2019) (“Although § 404.1520c(d)
states the Commissioner is ‘not required to articulate how we consider evidence from
nonmedical sources’ using the same criteria for medical sources, it does not eliminate the
need for the ALJ to articulate his consideration of lay-witness statements and his reasons
for discounting those statements.”).
This Court agrees with the well-reasoned decisions holding ALJs “must continue
to give germane reasons for discounting lay witness testimony” and even “under the new
regulations that an ALJ’s failure to address lay testimony is error.” Kimberly T. v.
Kijakazi, 2022 WL 910083, at *7 (D. Or. Mar. 29, 2022); see also Kimberly H. v.
Kijakazi, 2022 WL 3585768, at *12 (D. Idaho Aug. 22, 2022) (holding the regulations
clearly require the ALJ to provide more than a passing mention to lay witness
statements).
The Ninth Circuit has long held that “lay witness testimony as to a claimant’s
symptoms or how an impairment affects ability to work is competent evidence, and
therefore cannot be disregarded without comment.” Nguyen v. Chater, 100 F.3d 1462,
1467 (9th Cir. 1996) (citations omitted); see also SSR 16-3p (explaining that other
sources may provide information from which inferences may be drawn about a claimant’s
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symptoms, and that “we will consider any statements in the record” by non-medical
sources and “will consider any personal observations of the individual....”)). And, “[i]n
determining whether a claimant is disabled, an ALJ must consider lay witness testimony
concerning a claimant’s ability to work.” Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d
1050, 1053 (9th Cir. 2006). Thus, an ALJ may discount lay witness testimony by
providing reasons germane to each witness. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th
Cir. 1993); see also Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The ALJ’s failure
to do so here was error.
However, “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.’” Molina, 674 F.3d at 1122 (quoting Buckner v.
Astrue, 646 F.3d 549, 560 (8th Cir. 2011)); Valentine, 574 F.3d at 694 (“In light of our
conclusion that the ALJ provided clear and convincing reasons for rejecting [plaintiff’s]
own subjective complaints, and because [the lay] testimony was similar to such
complaints, it follows that the ALJ also gave germane reasons for rejecting [the lay]
testimony.”).
Here, Plaintiff’s daily activities are described similarly in both the lay witness
statements and Plaintiff’s own statements and testimony. Compare (AR 37-54, 341-351)
with (AR 352-360, 399.) The ALJ recognized as much in the written decision. (AR 21.)
As such, any error by the ALJ in failing to provide reasons for rejecting the lay witness
statements was harmless error if the ALJ’s consideration of Plaintiff’s symptom
statements was proper. Molina, 674 F.3d at 1117 (the lack of error in articulating a reason
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to reject lay witness statements was harmless); Valentine, 574 F.3d at 694. The Court
makes no determination concerning the ALJ’s evaluation of Plaintiff’s statements at this
time, because the case must be remanded for other reasons. On remand, the ALJ should
reevaluate Plaintiff’s symptom statements and the lay witness statements as necessary
when making the disability determination.
3.

Remand For Additional Proceedings is Appropriate
The decision whether to remand for further proceedings or order an immediate

award of benefits is within the district court’s discretion. Harman v. Apfel, 211 F.3d
1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further
administrative proceedings, or where the record has been fully developed, it is
appropriate to exercise this discretion to direct an immediate award of benefits. Id. at
1179 (“[T]he decision of whether to remand for further proceedings turns upon the likely
utility of such proceedings.”). However, where the circumstances of the case suggest that
further administrative review could remedy the Commissioner’s errors, remand is
appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at
1179-81. In general, when the Court reverses an ALJ’s decision “the proper course,
except in rare circumstances, is to remand to the agency for additional investigation or
explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004).
Here, the ALJ committed harmful error in evaluating the medical opinion
evidence. However, the circumstances presented in this case suggest that further
administrative review could remedy the error, and there are serious doubts as to whether
Plaintiff is in fact disabled within the meaning of the Social Security Act. Burrell v.
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Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014); McLeod, 640 F.3d at 888; Harman, 211
F.3d at 1179-81. Accordingly, the Court will remand to the Commissioner for further
proceedings.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that:
1.

The decision of the Commissioner of Social Security is REVERSED.

2.

This action shall be REMANDED to the Commissioner for further
proceedings consistent with this opinion.

3.

This Remand shall be considered a “sentence four remand,” consistent with
42 U.S.C. § 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir.
2002).

DATED: January 18, 2023
_________________________
Honorable Debora K. Grasham
United States Magistrate Judge

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