Opinion
SA CV 23-1040-CJC(E)
02-23-2024
ELIZABETH T., Plaintiff, v. MARTIN J. O'MALLEY, COMMISSIONER OF SOCIAL SECURITY,[1] Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Cormac J. Carney, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff filed a complaint on June 13, 2023, seeking review of the Commissioner's denial of disability benefits. Plaintiff filed "Plaintiff's Brief" on December 11, 2023. Defendant filed "Defendant's Brief" on February 6, 2024. Plaintiff filed "Plaintiff's Reply" on February 20, 2024.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff sought disability benefits based primarily on alleged psychiatric disorders (Administrative Record ("A.R.") 49-57, 64, 24749). An Administrative Law Judge ("ALJ") reviewed the record and heard testimony from Plaintiff and a vocational expert (A.R. 16-244, 247-340, 343-4043). Plaintiff testified to symptoms of allegedly disabling severity (A.R. 49-57). Plaintiff's father signed a "Function Report" essentially mirroring Plaintiff's testimony regarding her alleged symptomatology (A.R. 292-99).
The ALJ found Plaintiff has severe "major depressive disorder, generalized anxiety disorder, sleep disorder and borderline personality disorder" (A.R. 22). However, the ALJ also found Plaintiff retains the residual functional capacity to work at jobs requiring no more than "simple, routine tasks" (A.R. 24).
In concluding Plaintiff is not disabled, the ALJ discounted Plaintiff's testimony and her father's report (A.R. 24-30). The ALJ stated reasons for this discounting, including a perceived inconsistency between Plaintiff's reported activities and her claimed inability to function (A.R. 24-27). The reported activities cited by the ALJ included preparing meals, shopping, recording and posting YouTube videos, texting, playing video games, building models, working on puzzles and traveling out of state to visit friends (id.). The ALJ's decision became the final decision of the Administration when the Appeals Council denied review (A.R. 5).
PLAINTIFF'S CONTENTION
Plaintiff contends that the ALJ erred by discounting the father's report regarding Plaintiff's alleged symptoms without stating any "germane" reason for doing so.
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Comm'r, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence.
Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).
DISCUSSION
For the reasons discussed below, the Magistrate Judge recommends that Judgment be entered in favor of Defendant. Contrary to Plaintiff's arguments, the Administration's findings are supported by substantial evidence and are free from material legal error.
The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
In evaluating a claimant's application for disability benefits, the ALJ considers, inter alia, lay witnesses' reported observations of the claimant. See Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006); Regennitter v. Comm'r of Social Sec. Admin., 166 F.3d 1294, 1298 (9th cir. 1999); see also 20 C.F.R. § 404.1520(a)(1)(3) ("We will consider all evidence in your case record when we make a determination or decision whether you are disabled."); 20 C.F.R. § 404.1513(a) ("evidence" includes submissions from "nonmedical sources"); 20 C.F.R. § 404.1520b ("After we review all of the evidence relevant to your claim, we make findings about what the evidence shows."). "[F]riends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to [the claimant's] condition." Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993).
At least prior to the 2017 amendments to the social security regulations, an ALJ could not reject lay witnesses' reported observations of a claimant without stating "reasons germane to each witness whose testimony [the ALJ] rejects." Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) ("Further, the reasons 'germane to each witness' must be specific.").
Most of the cited authorities speak in terms of the "testimony" of lay witnesses. The standards discussed in these authorities, however, "appear equally applicable to written statements" submitted by lay witnesses. Hendrix v. Astrue, 2010 WL 60959, at *10 (C.D. Cal. Jan. 4, 2010); accord Hughes v. Comm'r, 403 Fed.Appx. 218, 221 (9th Cir. 2010) (applying to written statements by lay witnesses the same standards applicable to testimony by lay witnesses); cf. Schneider v. Comm'r, 223 F.3d 968, 974-75 (9th Cir. 2000) (ruling that the ALJ should have considered letters submitted by claimant's friends and exemployers in evaluating severity of claimant's functional limitations).
Defendant argues that the 2017 amendments to the social security regulations abolished the requirement that ALJs state reasons for rejecting the reported observations of lay witnesses. Most of the district courts in this circuit to have considered this argument have found the argument unpersuasive. See Jeffrey W. G. v. O'Malley, 2024 WL 265595, at *12 (D. Idaho Jan. 23, 2024) (the 2017 regulations provide "that the agency need not use the criteria outlined for evaluation of medical sources when evaluating nonmedical sources, not that the agency need not articulate its reasoning at all when evaluating nonmedical sources. Thus, the 2017 regulations do not displace existing caselaw in this area"); Joseph L. S. v. Kijakazi, 2023 WL 5611408, at *4-5 (C.D. Cal. Aug. 30, 2023) ("the ALJ's obligation to provide germane reasons for rejecting lay witness testimony remains intact even after the 2017 amendments"); accord Tracy Q. v. Kijakazi, 2024 WL 706963, at *8 (D. Or. Feb. 21, 2024); Heather L. v. Comm'r, 2024 WL 472052, at *11 (D. Or. Feb. 7, 2024); Gardner v. Comm'r, 2023 WL 6173220, at *6 (D. Ariz. Sept. 21, 2023); Billi H. v. Comm'r, 2022 WL 4181425, at *6-7 (W.D. Wash. Sept. 13, 2023); Stricker v. Comm'r, 2022 WL 3588215, at *6 (D. Ariz. July 29, 2022), adopted, 2022 WL 3585833 (D. Ariz. Aug. 22, 2022); Kimberly T. v. Kijakazi, 2022 WL 910083, at *7 (D. Or. Mar. 29, 2022); Joseph M. R. v. Comm'r, 2019 WL 4279027, at *12 (D. Or. Sept. 10, 2019); but see Ramona J. R. v. Comm'r, 2024 WL 216571, at *5 (W.D. Wash. Jan. 19, 2024) (finding Defendant's argument persuasive); Mahnaz M. v. Kijakazi, 2024 WL 21794, at *8 (S.D. Cal. Jan. 2, 2024) (same); Moreno v. Kijakazi, 2022 WL 2906679, at *15 (E.D. Cal. July 22, 2022) (same). Dicta in an unpublished Ninth Circuit opinion on the issue appears to agree with Defendant's argument. See Fryer v. Kijakazi, 2022 WL 17958630, at *3 n.l (9th Cir. Dec. 27, 2022) ("it is clear [ALJs] are no longer required to articulate it in their decisions").
The intended reference of the second "it" in this sentence is not entirely clear. However, this "it" may well intend to refer to the reason (or reasons?) for rejecting a lay witness' observations.
Plaintiff cites Carrier v. Kijakazi, 2023 WL 8016706, at *3 (9th Cir. Nov. 20, 2023) ("Carrier"). However, the claimant in Carrier filed the administrative claim in 2016, prior to the effective date of the 2017 amendments. See Tammantha C. V. Kijakazi, 2022 WL 4599183, at *1 (D. Idaho Sept. 30, 2022), rev'd, Carrier. Therefore, Carrier is inapposite to Defendant's argument.
In the present case, this Court need not adjudicate whether the 2017 amendments to the social security regulations permit an ALJ to forgo stating any reasons for rejecting a lay witness' reported observations. Assuming arguendo a continuing requirement that the ALJ state a "germane" reason for discounting the observations of Plaintiff's father, the ALJ met the requirement. The ALJ stated that Plaintiff's level of reported activity was inconsistent with a finding of disability (A.R. 27). Such a stated reason satisfies the "germane" reason standard. See, e.g., Collie v. Saul, 837 Fed.Appx. 497, 499 (9th Cir. 2021); Fennell v. Berryhill, 721 Fed.Appx. 652, 654 (9th Cir. 2018); Stout v. Berryhill, 696 Fed.Appx. 838, 839 (9th Cir. 2017); Michael S. v. Comm'r, 2024 WL 247207, at *8 (D. Or. Jan. 23, 2024); Guillen v. Astrue, 2011 WL 2412559, at *8 (C.D. Cal. June 9, 2011); see also Carmickle v. Comm'r, 533 F.3d at 1162-63 (notwithstanding the invalidity of one or more of an ALJ's stated reasons for discounting a claimant's subjectivity symptomatology, a court may uphold the ALJ's credibility determination where sufficient valid reasons have been stated); cf. Valentine v. Comm'r, 574 F.3d 685, 693 (9th Cir. 2009) (even where a claimant's admitted activities do not necessarily prove the claimant can work, the activities may suggest that assertions regarding the claimant's functional limitations have been exaggerated and should be discounted).
Moreover, even if the ALJ failed to state any "germane" reason for discounting the father's report, the failure would be harmless under the circumstances of this case. "[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted), superseded by regulation on other grounds as stated in Sisk v. Saul, 820 Fed.Appx. 604, 606 (9th Cir. 2020) ("Molina"). In Molina, the Ninth Circuit held that an ALJ's erroneous failure to state a "germane" reason for discounting a lay witness' statement was harmless where, as here, the lay witness' statement mirrored the claimant's testimony. See id.; see also Valentine v. Comm'r, 574 F.3d at 694 (ALJ may discount lay witness statement where the statement is similar to the claimant's testimony and the ALJ has given legally sufficient reasons for discounting the claimant's testimony). In the present case, the father's statement alleges essentially the same limitations alleged in Plaintiff's testimony. For sufficient reasons, the ALJ discounted Plaintiff's testimony (A.R. 26-30). Accordingly, any error in regard to discounting the similar allegations of Plaintiff's father was harmless. Id.; see, e.g., Tracy Q. v. Kijakazi, 2024 WL 706963, at *8; Mercedes Dawn C. v. O'Malley, 2024 WL 404502, at *5 (D. Idaho Feb. 2, 2024); Tonyia P. v. Comm'r, 2024 WL 36713, at *3 (D. Or. Jan. 3, 2024).
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation and; (2) directing that Judgment be entered in favor of Defendant.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.