Andrew H. v. Commissioner of Social Security

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Plaintiff, Case No. C24-5967-SKV v. ORDER AFFIRMING THE COMMISSIONER’S DECISION Defendant. Plaintiff seeks review of the partial denial of his applications for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB). Having considered the ALJ’s decision, the administrative record (AR), and all memoranda of record, the Court AFFIRMS the Commissioner’s final decision and DISMISSES the case with prejudice. Plaintiff was born in 1970, has an associate’s degree in counseling/human services, and has worked as a fiberglass laminator and parts clerk. See AR 2153, 2165. He last worked in 2006. See AR 2153. Plaintiff applied for SSI and DIB in November 2010, alleging disability as of July 15, 2006. See AR 19. His date last insured (DLI) is June 30, 2011. AR 281. Plaintiff’s applications resulted in multiple ALJ hearings, see AR 39-84, 941-64, 965-93, 994-1016, 2180-221, 2222-44, five ALJ decisions, AR 16-38 (May 29, 2013), AR 1375-88 (March 2, 2016), AR 1398-1423 (July 27, 2018), AR 2361-82 (September 7, 2021), AR 2146-67 (July 25, 2024), two Appeals Council remands, AR 1391-93 (November 17, 2016), AR 2395-97

(November 21, 2022), two remands from this Court, AR 1046-66 (September 5, 2014), AR 2332-51 (July 17, 2020), and one Ninth Circuit decision affirming a decision of this Court, AR 2276-79 (July 6, 2017). The ALJ decision now under consideration is dated July 25, 2024. AR 2146-67. Because the ALJ in the previous decision found Plaintiff disabled on his SSI application beginning April 11, 2020, see AR 2382, the ALJ was tasked with considering Plaintiff’s claims prior to that date. The ALJ found Plaintiff was not disabled prior to May 10, 2017, but became disabled on that date and continued to be disabled through the date of the decision, and that he was not under a disability at any time through his June 30, 2011 DLI. AR 2167. See also AR 2146-47 (discussing additional SSI and DIB applications denied initially, for which Plaintiff did

not seek reconsideration, and for which the ALJ found no cause for reopening). Utilizing the five-step disability evaluation process,1 the ALJ found:

Step one: Plaintiff has not engaged in substantial gainful activity since the July 15, 2006 alleged onset date. Step two: Plaintiff has the following severe impairments: lumbar spine degenerative disc disease and degenerative joint disease status post surgeries; major depressive disorder; generalized anxiety disorder; and personality disorder. Step three: These impairments do not meet or equal the requirements of a listed impairment.2

1 20 C.F.R. §§ 404.1520, 416.920. 2 20 C.F.R. Part 404, Subpart P., App. 1. Residual Functional Capacity (RFC): Prior to May 10, 2017, Plaintiff can perform light work, except he must be able to sit/stand alternately every fifteen minutes; must have simple instructions only; must have only occasional contact with the public and coworkers; must not be required to perform overhead lifting; and must not be required to work at heights or near hazardous machinery. Since May 10, 2017, Plaintiff can perform light work with those same limitations and must also be allowed to take additional breaks of fifteen minutes per hour.

Step four: Plaintiff cannot perform past relevant work.

Step five: Prior to May 10, 2017, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform and Plaintiff is therefore not disabled. Beginning on May 10, 2017, there are no jobs Plaintiff can perform and Plaintiff therefore became disabled on that date.

AR 2146-67. Plaintiff appealed this final decision of the Commissioner to this Court. Dkt. 1. The parties consented to proceed before the undersigned Magistrate Judge. Dkt. 2. Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social security benefits when the ALJ’s findings are based on harmful legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (cited sources omitted). The Court looks to “the record as a whole to determine whether the error alters the outcome of the case.” Id. Substantial evidence is “more than a mere scintilla. It means - and means only - such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (cleaned up); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for evaluating symptom testimony, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is

susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. Plaintiff argues the ALJ erred in evaluating the medical opinion evidence, his symptom testimony, and lay evidence.3 The Commissioner argues the ALJ’s decision is free of harmful legal error, supported by substantial evidence, and should be affirmed. A. The ALJ Did Not Err in Assessing Medical Opinion Evidence Because Plaintiff’s applications predate March 2017, the prior regulations for evaluating medical opinion evidence apply. See 20 C.F.R. §§ 404.1527, 416.927. Where, as here, the record contains conflicting opinions, the ALJ must provide “specific and legitimate reasons”

supported by substantial evidence for rejecting the opinions of treating and examining physicians. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996). An ALJ may reject opinions from a non-examining physician by reference to specific evidence in the medical record, Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998), and opinions from “other sources”, such as an advance registered nurse practitioner (ARNP) or counselor, by providing reasons germane to that source, Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (citing Molina, 674 F.3d at 1111). 3 Plaintiff’s derivative allegations that these errors led to errors in the RFC assessment and step five finding need not be separately addressed. Nor does the Court consider Plaintiff’s mere suggestion that the ALJ erred in not reopening his prior applications for benefits. See Carmickle v. Commissioner, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (court need not address issues not argued with any specificity). Plaintiff asserts error in relation to some eighteen medical opinions and one medical record authored by fourteen different individuals.4 Counsel for Plaintiff in many instances offers conclusory disagreement with the ALJ’s findings, argues for the adoption of an alternative interpretation of the evidence, and/or “fail[s] to provide adequate explanation or to engage in any

meaningful manner with the reasons and record citations provided by the ALJ with respect to the challenged evidence.” Brian J. C. v. Comm’r of Soc. Sec., No. C24-5294-SKV, 2025 WL 1149711, at *6-7 (W.D. Wash. Apr. 18, 2025) (also citing numerous cases in which counsel for Plaintiff has been admonished for these same deficiencies in briefing). Counsel for Plaintiff also belatedly raises arguments for the first time in the reply brief. Neither the bare assertion of an issue, nor summaries of evidence unaccompanied by analysis or legal arguments suffice to demonstrate harmful error. See Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim, particularly when a host of other issues are presented for review.”); see also Putz v. Kijakazi, No. 21-35733, 2022 WL 6943095, at *2

(9th Cir. Oct. 12, 2022) (finding that plaintiff, who was represented by the same counsel as in this case, waived any points offered either through bare assertions of error or through lists of “numerous clinical findings, unaccompanied by argument, intended to corroborate testimony the ALJ discounted”); Carmickle v. Commissioner, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (declining to address issues not argued with any specificity). Also, the Court may not “reweigh

4 The only medical opinions left unchallenged come from non-examining physicians Matthew Comrie, Psy.D., and Bruce Eather, Ph.D., and assessed only mild problems related to Plaintiff’s mental impairments and no associated functional limitations. See AR 87-112, 115-44. The ALJ gave these opinions little weight, finding they failed to take the totality of the record into consideration, “which clearly shows that while [Plaintiff’s] mental impairments result in only mild to moderate limitations, they are, in fact, severe.” AR 2159 (citing to record as showing treatment notes and consultative examinations showing, at times, presentation with depressed/anxious mood, slightly impaired concentration, irritability, and, on occasion, slightly impaired judgment). the evidence or substitute [its] judgment for that of the ALJ.” Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). Finally, because “arguments not raised by a party in an opening brief are waived[,]” Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1177 n.8 (9th Cir. 2009), the Court herein considers only those arguments first raised “‘specifically and distinctly’” in

Plaintiff’s opening brief, Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (quoted source omitted). 1. Judy Miller The ALJ gave great weight to ARNP Judy Miller’s January 2010 opinion that Plaintiff was capable of light work with limitations in his ability to balance, stoop, climb, crouch, pull, and push. AR 2157 (citing AR 635). The ALJ found this opinion supported by diagnostic testing and physical exams, as evidenced by examination findings that included reduced range of motion, tenderness to palpation, occasional positive straight leg raise testing, and give away weakness, and noted the record often reflects Plaintiff ambulates with a normal gait/station and/or balance/coordination and is able to heel-toe walk. Id. (citing AR 637, 646, 665, 686,

1237, 1272, 1815, 1975, 1977, 2140, 2777-96). The ALJ gave little weight to Miller’s June and July 2010 opinions finding Plaintiff able to function at the sedentary level, with varying abilities to stand, sit, lift, and/or bend. Id. (citing AR 640 (stand three hours, sit two hours, lift five pounds occasionally and eight frequently); AR 648 (stand three hours, sit four hours, lift eight pounds occasionally and four frequently, no bending over thirty degrees). The ALJ identified inconsistency between Miller’s observation that MRI results were not consistent with Plaintiff’s reports of pain or exam findings and her opinion Plaintiff could not persist for an eight-hour day. AR 2157 (citing AR 649 (also stating: “MRI indicates much milder disease than [Plaintiff’s] complaints would support.”)). She found the evaluation appeared to be largely based on subjective reports, rather than objective findings, identifying as an example the fact that Plaintiff asserted he could lift about eight pounds and the evaluation form indicating he could lift eight pounds on occasion. Id. (citing AR 650). She also found some assessed limitations inconsistent with one another, contrasting restrictive lifting/

carrying and bending assessments, with a failure to include any postural or environmental restrictions. Id. (citing AR 641). See also AR 2154 (considering that Miller, in June 2010, noted Plaintiff appeared to be “‘overstating and overplaying his symptoms’”) (quoting AR 646). Plaintiff asserts an absence of substantial evidence support for the ALJ’s analysis. He identifies error in the ALJ’s interpretation of Miller as relying on his subjective reports. Specifically, Plaintiff concedes the ALJ cited one example that appears to support her analysis, but asserts that the rest of Miller’s opinions were based on her independent clinical findings, including a very antalgic gait, decreased flexion and no extension, decreased reflexes, left foot weakness, and complaints of pain with active and passive range of motion. See AR 646, 650. The Court finds no error. The ALJ is responsible for resolving conflicts in medical

testimony and resolving any ambiguities. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999). An ALJ properly undertakes that responsibility by, as here, identifying inconsistencies within and between providers’ opinions. Id. Plaintiff here offers a different interpretation of the evidence, but does not show that the ALJ’s interpretation was not rational or undermine the substantial evidence support for the ALJ’s conclusion. 2. Gary Gaffield, D.O. The ALJ gave great weight to the May 2011 opinion of consultative examiner Dr. Gary Gaffield that Plaintiff could perform light work with occasional postural activities and some environmental limitations. AR 2158 (citing AR 665-66). Plaintiff asserts error in the ALJ’s failure to discuss many of Dr. Gaffield’s clinical findings or to acknowledge the consistency of those findings with the January 2013 opinion of consultative examiner Mark Heilbrunn, M.D. The ALJ did, however, cite to and discuss Dr. Gaffield’s clinic findings. See AR 2154, 2158. Nor did the ALJ err in failing to address any consistency between those findings and the findings

of another physician. While an ALJ must explain why he rejects medical opinion evidence, no such requirement exists where a medical opinion is accepted. Turner v. Comm’r of Social Sec. Admin., 613 F.3d 1217, 1223 (9th Cir. 2010); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). Plaintiff thus fails to identify error in relation to Dr. Gaffield. 3. Mark Heilbrunn, M.D. The ALJ assigned little weight to Dr. Heilbrunn’s January 2013 opinion assessing a variety of restrictive physical limitations as it was “overly restrictive, unsupported, and inconsistent with the totality of the medical record.” AR 2159. She found assessed manipulative limitations – including occasionally reaching overhead with the right arm and lifting/carrying ten-to-twenty pounds with the right hand and zero-to-ten with the left – unsupported, as there

were “minimal findings and/or noted duration/consistent treatment regarding” the use of the right arm, electrodiagnostic testing showed no abnormalities in the upper extremity, and Plaintiff exhibited normal coordination, generally intact upper extremity strength, and grip testing within normal limits. Id. (citing AR 377, 646, 665, 1237, 1272). The ALJ nonetheless, “in an abundance of caution,” limited Plaintiff to no overhead lifting. Id. The ALJ also found an absence of support in the record for an assessed limitation to “standing, walking, and/or sitting” for three-to-four hours in a workday. Id. The ALJ stated that, while the record noted some balance issues, Plaintiff more often than not exhibited normal gait/station and/or balance, normal coordination, and the ability to walk without an assistive device and to heel-toe walk. Id. (citing AR 377, 646, 665, 1237, 1272). Plaintiff assigns error to the ALJ’s finding that Dr. Heilbrunn’s opinion was unsupported. He asserts that the opinion, including the assessed manipulative limitations, is supported by Dr.

Heilbrunn’s own independent clinical findings, most of which the ALJ did not discuss. Plaintiff also asserts that the ALJ mischaracterized the opinion with regard to sitting and standing/ walking, noting Dr. Heilbrunn actually opined Plaintiff could “sit 3-to-4 hours/8 hours and stand/walk 3-to-4 hours/hours[,]” Dkt. 13 at 7, which is reasonably consistent with the RFC limitation to alternating sitting and standing every fifteen minutes. The Court finds no error. The ALJ provided specific and legitimate reasons for assigning little weight to Dr. Heilbrunn’s opinion by identifying an absence of sufficient support in his findings and inconsistency with other medical evidence of record, including, but not limited to, Dr. Gaffield’s clinical findings. See, e.g., Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (ALJ properly considers inconsistency with the record); Bayliss v. Barnhart, 427 F.3d

1211, 1216 (9th Cir. 2005) (discrepancy or contradiction between opinion and physician’s own notes or observations is “a permissible determination within the ALJ’s province.”); Morgan, 169 F.3d at 603 (internal inconsistencies within and between physicians’ reports). Contrary to Plaintiff’s suggestion, the ALJ sufficiently addressed Dr. Heilbrunn’s findings in his earlier discussion of the medical record. See AR 2155; see also Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th Cir. 2022) (the Court considers “all the pages” of an ALJ’s decision in conducting its assessment). Nor is it clear the ALJ mischaracterized Dr. Heilbrunn’s opinion in relation to sitting, standing, and walking. See AR 2159 (“He opined the claimant could sit for at least 10-15 minutes with a maximum sitting capacity of 3-4 hours in an 8-hour workday. The same limitations were assessed related to the claimant’s ability to stand/walk.”) Plaintiff, in any event, concedes that that particular opinion is consistent with the assessed RFC. Plaintiff therefore does not identify harmful error. 4. Larry Conover, Brent Packer, M.D., and Bonnie McReynolds

Lawrence Conover, PA-C, AR 1826-28 (October 2013), Brent Packer, M.D., AR 1876- 78 (November 2013), and ARNP Bonnie McReynolds, AR 1936-38 (September 2015) offered opinions restricting Plaintiff to sedentary or less than sedentary work. Dr. Packer also opined that Plaintiff’s back condition met a listing and that his right shoulder condition was “additive to impairments[,]” AR 1876, and McReynolds issued Plaintiff a twelve-month disabled parking placard, see AR 1969-78. The ALJ provided the same reasons for assigning little weight to this opinion evidence. See AR 2160-62. She found that the medical evidence of record and Plaintiff’s demonstrated functioning prior to May 10, 2017, supported his ability to perform light exertional work. Id. She stated that, while imaging showed mild-to-moderate lumbar abnormalities, testing reflected

only moderate issues with improvement status-post surgery, id. (citing AR 1248, 2140), and that the record showed little treatment between Plaintiff’s first surgery in 2006 through 2017. She acknowledged examination findings of reduced lumbar range of motion, lumbar tenderness to palpation, occasional positive straight leg raise testing, and give away weakness, id. (citing AR 637, 646, 665, 686, 2777-90, 1975, 2140), and some notations of balance issues, but found that, overall, Plaintiff often exhibited normal gait/station and/or balance, normal coordination, and the ability to walk without an assistive device, id. (citing AR 377, 646, 665, 2137, 1272). She also noted that the record shows Plaintiff can persist at household tasks and hobbies, id. (citing AR 728), and his reports of his other activities, including, inter alia, making screen doors, going for walks, cleaning his house, cooking simple meals, shopping for groceries, driving, attending college classes, and working on an internship, id. (citations omitted). The ALJ found this evidence did not support a limitation to sedentary exertional work or a conclusion that his conditions met a listing. She also noted that Dr. Packer inconsistently opined in one portion of

his assessment that Plaintiff could not perform work at any exertional level and in another portion opined that Plaintiff was able to perform at the sedentary level. AR 2161 (citing AR 1877). The ALJ additionally found that, to the extent the fact of a disabled parking placard constitutes a medical opinion, it was accorded little weight given that disability is an issue reserved to the Commissioner. AR 2163. Plaintiff asserts that the ALJ’s analysis of Conover’s opinion is conclusory and not supported by substantial evidence, that Conover’s opinion is consistent with the findings and opinions of Miller and Dr. Heilbrunn, and that none of the cited activities contradict Conover’s opinion. He asserts that the minor internal inconsistency identified in relation to Dr. Packer does not justify rejecting the entire opinion and that the ALJ insufficiently lists some normal findings

and some activities, none of which actually contradict Dr. Packer’s opinion. He asserts that McReynolds’ opinion is consistent with her clinical findings and that the issuance of a disabled parking placard was an opinion that he required disabled parking and therefore an opinion regarding his limitations not addressed by the ALJ. The Court finds no error. The ALJ provided specific and legitimate reasons for assigning little weight to this opinion evidence by identifying conflict with the objective medical evidence of record, the evidence of limited treatment, normal examination findings, and evidence of Plaintiff’s activities, as well as an internal inconsistency in the evidence from Dr. Packer. See, e.g., Smartt v. Kijakazi, 53 F.4th 489, 496 (9th Cir. 2022) (ALJ may discount opinion inconsistent with the treatment record showing normal findings and evidence of improvement); Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (“A conflict between a treating physician’s opinion and a claimant’s activity level is a specific and legitimate reason for rejecting the opinion.”); Tommasetti, 533 F.3d at 1041 (inconsistency with the record); Morgan, 169 F.3d at

603 (internal inconsistencies within and between physicians’ reports); Flaten v. Sec. of Health & Human Servs., 44 F.3d 1453, 1464 (9th Cir. 1995) (“ALJ was entitled to draw an inference from the general lack of medical care for back problems during the intervening years between the two surgeries”). Plaintiff here suggests an alternative interpretation of the evidence. However, the fact that an ALJ “could have come to a different conclusion” in interpreting the record does not suffice to demonstrate error. Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2018). The ALJ’s conclusions are properly upheld because they are supported by substantial evidence and her interpretation of the evidence is rational. Id. The ALJ also properly found that, to the extent the disabled parking placard is construed as a medical opinion, it was entitled to little weight as an opinion on an issue reserved to the

Commissioner. See 20 C.F.R. §§ 416.927(d), 404.1527(d). Plaintiff again offers a different interpretation of this evidence as an opinion regarding his limitations, but fails to identify any specific limitations relating to an ability to work or explain how those limitations conflict with the assessed RFC. Plaintiff therefore does not demonstrate harmful error. 5. Tasmyn Bowes, Psy.D. In November 2009 and September 2010, Dr. Tasmyn Bowes offered opinions assessing mild-to-moderate mental limitations in functioning. See AR 613-21, 1842-49. The ALJ gave these opinions great weight. AR 2157. She observed that the record shows Plaintiff has some limitations in functioning, as evidenced by occasions in which he presents with impaired concentration, irritability, and/or difficulty in interrupting or redirecting, but also reflects many occasions in which Plaintiff presents with normal mental status examinations (MSE). Id. (citing AR 622, 624, 1972, 1985). Also, Plaintiff attends college classes and maintains passing grades, utilizes social media applications, and works on the computer. Id. (citing AR 671, 728, 1284,

1982). The ALJ concluded that the record supported no more than moderate limitations in functioning, resulting in Plaintiff’s ability to perform simple instructions with only occasional contact with the public and coworkers. Id. Plaintiff argues the ALJ erred in assigning great weight to Dr. Bowes’s opinions but failing to provide any reasons for rejecting her opinion that his depression would impact his rate of absenteeism and productivity and that his interpersonal skills would impact his ability to interact with co-workers and supervisors. See AR 617. However, in so doing, Plaintiff points to a portion of Dr. Bowes’s November 2009 report in which she discussed Plaintiff’s symptoms, not the portion in which she assessed only mild-to-moderate functional limitations. See AR 617, 619. Plaintiff does not identify specific limitations he believes the ALJ omitted based on the no

more than moderate limitations assessed. He therefore does not demonstrate error in the ALJ’s consideration of this opinion evidence. See, e.g., Fiederowicz v. Kijakazi, No. 19-35567, 2021 WL 4776995, at *1 (9th Cir. Oct. 13, 2021) (“The ALJ was not required to include every facet of [a physician’s] opinion in the [RFC] because the ALJ is ‘responsible for translating and incorporating clinical findings into a succinct RFC.’”) (quoting Rounds v. Comm’r, Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015)); Turner, 613 F.3d at 1223 (ALJ need not provide reason for rejecting physician’s opinions where ALJ incorporated opinions into RFC; ALJ incorporated opinions by assessing RFC limitations “entirely consistent” with limitations assessed by physician). 6. Melinda C. Losee, Ph.D. In May 2011, consultative examiner Dr. Melinda Losee opined that Plaintiff's depression did not appear to significantly impact his daily functioning, that he appeared to have the ability to understand, remember, and carry out instructions on a sustained basis, that he was generally

able to respond appropriately to supervision, co-workers, and the public, but his social skills and social judgment “appear impaired[,]” and that he is capable of dealing with normal work pressure and changes in a routine work setting. AR 671-72. The ALJ gave the opinion little weight because it was internally inconsistent (interaction with others), vague, and inconsistent with the totality of the record. AR 2158 (also providing same discussion of and citation to record provided in relation to Dr. Bowes and same conclusion as to mental RFC assessment). Plaintiff describes some aspects of Dr. Losee’s evaluation and states that the overall evidence shows he is even more limited than opined by Dr. Losee. However, Plaintiff does not challenge and the Court finds no error in the several different specific and legitimate reasons provided by the ALJ for assigning the opinion little weight. See, e.g., Ford, 950 F.3d at 1155-56

(ALJ reasonably concluded descriptions of a claimant’s “‘limited’ or ‘fair’” abilities were not useful because they failed to specify functional limitations, and properly considered inconsistency with activities); Tommasetti, 533 F.3d at 1041 (inconsistency with the record); Morgan, 169 F.3d at 603 (internal inconsistencies). 7. Keith Krueger, Ph.D. Dr. Keith Krueger completed three psychological evaluations. See AR 725-29, 1813-25, 1832-41. In October 2012 and November 2013, Dr. Krueger assessed, inter alia, marked limitations in Plaintiff’s ability to adapt to changes, communicate and perform effectively, maintain appropriate behavior, and/or perform activities in a schedule, maintain attendance, and be punctual. AR 1816, 1834. The ALJ gave these opinions some weight, noting MSEs showed occasions in which Plaintiff was difficult to interrupt or presented as irritable, but that, overall, he remains cooperative and friendly, exhibits adequate eye contact and speech, reports spending time with and visiting others, talking to and playing with people online, attends school and

receives passing grades, works on an internship, and utilizes social media applications. AR 2160-61 (citing AR 297, 320, 670-71, 727, 1237, 1272, 1937, 1984-85, 2048-49, 2811). The ALJ found the marked limitations not supported and gave them limited weight, but found social limitations and simple instruction limitations supported. Plaintiff asserts that the ALJ’s finding of an absence of support for the marked limitations assessed in Dr. Krueger’s October 2012 evaluation is not supported by substantial evidence and therefore not a legitimate reason. This assertion of error is wholly conclusory and not further addressed. As related to the November 2013 evaluation, Plaintiff asserts that Dr. Krueger was able to base his opinion on the totality of his clinical findings from three evaluations and that none of Plaintiff’s limited activities are actually inconsistent with the opinion. This argument

merely offers an alternative interpretation of the evidence. The ALJ’s conclusion that Dr. Krueger’s opinions were not supported by the evidence of record overall is rational and supported by substantial evidence. In February 2013, Dr. Krueger noted that Plaintiff exhibited decent memory, but gave questionable effort on some testing, had little difficulty with comprehension, but problems with listening consistently, somewhat pressured speech, and quite opinionated ideas, so judgment could be slanted, but that this would “interfere more with relationships than with job skill performance[.]” AR 727-28. Dr. Kreuger also noted Plaintiff’s persistence had decreased, “with conviction that he can no longer work[,]” but that he could be persistent “with household tasks, hobbies, chat rooms, etc.[,]” had apparently adequate online interactions, enough friends to always have a place to stay, and, “[r]ather limited adaptation, in that he considers self unemployable and he looks more diligently for ways to confirm his disabilities than to find more productive ways to spend his time or more rehabilitative programs to pursue.” AR 728-29.

The ALJ afforded only some weight to this opinion. AR 2160. He noted that Dr. Krueger did not provide a functional assessment and found the opinion vague but generally consistent with the evaluation of Plaintiff at the time the opinion was rendered. Id. The ALJ found that, overall, the record supported that Plaintiff was only able to perform simple instructions, with occasional interaction with the public and coworkers. Id. (citing AR 670, 727, 1237, 1272, 2812, 1984-85). Plaintiff points to Dr. Krueger’s description of his decreased persistence and rather limited adaptation. See AR 728-29. However, the ALJ accurately noted and properly considered the absence of any specific functional limitations assessed. See, e.g., Ford, 950 F.3d at 1155-56. The ALJ also reasonably considered, among other things, the evidence of questionable effort on

testing, Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012), and the inconsistency between decreased persistence on testing and the evidence of his persistence in his daily activities, Morgan, 169 F.3d at 603. For this reason and for the reasons set forth above, Plaintiff does not demonstrate error in relation to Dr. Krueger. 8. Kimberly Wheeler, Ph.D. Dr. Kimberly Wheeler conducted a psychological evaluation of Plaintiff in November 2013. AR 1931-35. She assessed, inter alia, marked limitations in adapting to changes, communicating and performing effectively, and completing a normal workday/week. AR 1933. The ALJ afforded this opinion little weight. AR 2163. She noted Dr. Wheeler’s citation to Plaintiff’s subjective reports of increased rumination and irritability, and her observation that, given his characterological features, it would be unlikely to see a substantial increase in his employability in the future. Id. (citing AR 1934). The ALJ found these findings inconsistent with the totality of the record and that Plaintiff’s demonstrated functioning failed to support the

marked limitations assessed. The ALJ explained that, while some findings were reflected in MSEs, the record, overall, reflected Plaintiff presented as alert, oriented, and exhibited intact memory and attention/concentration, normal thought process/content, no suicidal ideation, and normal mood/behavior, that he was generally cooperative with examiners and exhibiting adequate eye contact and speech, and reported spending time with friends, utilizing social media applications, attending school and receiving passing grades, drives, shops in stores, and completes household chores. Id. (citing AR 297, 320, 622, 624, 664, 670-71, 727-28, 1237, 1272, 1972, 1984-85, 2821). Plaintiff argues the ALJ’s analysis is not supported by substantial evidence, that Dr. Wheeler’s opinion is supported by her own clinical findings and is reasonably consistent with the

findings and opinions of Drs. Bowes, Losee, and Krueger, and that none of the findings and activities cited by the ALJ actually contradict Dr. Wheeler’s opinions. These arguments do not, however, identify any error in the ALJ’s reasoning. They are, instead, conclusory and merely suggest an alternative interpretation of the evidence. The ALJ’s interpretation of the evidence is rational and supported by substantial evidence. 9. Jaime A. Foland, M.D. Plaintiff cites to a February 2013 examination record from Dr. Jaime Foland and argues the ALJ erred by failing to acknowledge that the findings from this examination support his testimony about his symptoms and limitations, as well as the opinions of Miller and Dr. Heilbrunn. This mere citation to and description of a medical record does not suffice to demonstrate error. See, e.g., Putz, 2022 WL 6943095, at *2; Brian J. C., 2025 WL 1149711, at *6. Plaintiff does not undermine the substantial evidence support for the ALJ’s consideration of the medical evidence of record. See generally Jamerson v. Chater, 112 F.3d 1064, 1067 (9th

Cir. 1997) (“[T]he key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner’s actual finding that claimant is not disabled.”). 10. Alfred Scottolini, M.D., Norman Staley, M.D., and Dennis Koukol, M.D. The ALJ assigned great weight to the opinions of non-examining physicians Drs. Alfred Scottolini, Norman Staley, and Dennis Koukol, offered in May 2011, September 2011, and March 2014 respectively, that Plaintiff could perform light work with various postural and other limitations. AR 2159 (citing AR 87-112, 115-44, 1354-64). The ALJ found diagnostic testing and physical exams supported the finding that Plaintiff was only capable of a less than full range of light work, as evidenced by examination findings that included reduced range of motion,

tenderness to palpation, occasional positive straight leg raise testing, and give away weakness, and that the record often reflected that Plaintiff ambulates with a normal gait/station and/or balance/coordination and is able to heel-toe walk. Id. (citations to record omitted). Plaintiff asserts that the opinions of these physicians were entitled to little weight because they are inconsistent with the findings and opinions of Miller and Dr. Heilbrunn and because they had not reviewed his testimony or any evidence since March 2014. Plaintiff does not identify error based on the fact that Drs. Scottolini, Staley, and Koukol were not able to consider either Plaintiff’s testimony or later-dated evidence. Indeed, “there is always some time lapse between a consultant’s report and the ALJ hearing and decision, and the Social Security regulations impose no limit on such a gap in time.” Owen v. Saul, 808 F. App’x 421, 423 (9th Cir. 2020). Further, neither Plaintiff’s conclusory assertion of error, nor his alternative interpretation of the evidence suffices to demonstrate error. The ALJ, for this reason and for the reasons stated above, did not err in considering the medical opinions in the record.

B. The ALJ Did Not Err in Assessing Plaintiff’s Symptom Testimony Absent evidence of malingering, an ALJ must provide clear and convincing reasons to discount a claimant’s testimony. See Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). In this case, the ALJ identified several clear and convincing reasons for discounting Plaintiff’s testimony, including inconsistency with the medical evidence of record, his activities, his treatment history, and in his performance on examination. See AR 2153-56. The ALJ also considered evidence of symptom exaggeration. See id. For the reasons discussed below, Plaintiff does not show error in this assessment. Plaintiff first asserts that the ALJ’s failure to properly evaluate the medical opinion and other medical evidence of record tainted her evaluation of the symptom testimony. However, as

discussed above, the Court finds no such error. Plaintiff further deems the ALJ’s consideration of the medical evidence selective and suggests the ALJ simply and insufficiently recited medical evidence and improperly relied on an absence of objective medical support. To the contrary, the ALJ properly contrasted Plaintiff’s subjective complaints with a detailed discussion of medical evidence inconsistent with those complaints, including imaging results and findings on physical and mental examination. See AR 2153-56 (citations to record omitted). The ALJ, in so doing, offered a clear and convincing reason for discounting Plaintiff’s testimony. See, e.g., Smartt, 53 F.4th at 498 (“When objective medical evidence in the record is inconsistent with the claimant’s subjective testimony, the ALJ may indeed weigh it as undercutting such testimony. We have upheld ALJ decisions that do just that in many cases.”) (citations omitted). Plaintiff also challenges the ALJ’s consideration of his activities, asserting none met “the threshold for transferable work skills” or showed he could perform full-time competitive work

on a sustained basis. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). However, activities may undermine a claimant’s symptom testimony where they meet the threshold of transferable work skills or where they contradict the claimant’s testimony. Id. See also Smartt, 53 F.4th at 499 (ALJ may consider whether claimant engages in daily activities inconsistent with alleged symptoms). The ALJ here properly found Plaintiff’s alleged degree of impairment inconsistent with evidence of his activities, including his ability to persist at household tasks and hobbies, interact with friends online and through social media, attend group counseling sessions without noted issue or incident, hang out with a neighbor/friends and attend a barbecue, make screen doors, go for walks, clean his house, cook simple meals, shop for groceries, continue to drive, attend college classes with passing grades, and work on an internship. AR 2156 (citations to

record omitted). Plaintiff contends the cited activities are fully consistent with his testimony, that it took him four years to obtain a two-year college degree, and that the ALJ improperly rejected his testimony based on his compliance with recommended counseling and his ability to walk with pain during physical therapy. None of these arguments undermine the substantial evidence support for the ALJ’s decision. The ALJ, for example, reasonably found Plaintiff’s ability to attend college classes with passing grades and work on an internship inconsistent with his allegation he could only pay attention for about ten minutes. AR 2153, 2156 (citations to record omitted). The ALJ also properly considered evidence of inconsistency even where Plaintiff’s engagement in activities suggested “some difficulty” in functioning. Molina, 674 F.3d at 1112- 13. As related to treatment, Plaintiff asserts an absence of any evidence of a curative treatment available during the relevant period and that he continued to experience symptoms and

limitations. The ALJ nonetheless properly considered evidence of limited treatment, significant gaps in treatment, the conservative nature of treatment, and symptom relief from treatment received. See AR 2154-56 (citations to record omitted); Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (evidence of treatment successfully relieving symptoms can undermine claim of disability); Tommasetti, 533 F.3d at 1039 (ALJ may consider unexplained or inadequately explained failure to seek or follow through with treatment); Parra v. Astrue, 481 F.3d 742, 750- 51 (9th Cir. 2007) (evidence of conservative treatment suffices to discount testimony regarding severity of impairment); Burch v. Barnhart¸ 400 F.3d 676, 681 (9th Cir. 2005) (ALJ may consider lack of treatment in assessing symptom testimony). Plaintiff, finally, refutes the Commissioner’s depiction of the decision as containing a

finding of malingering and otherwise downplays the significance of any associated evidence. See Dkt. 15 at 3 & Dkt. 16 at 6-7. The Court agrees that the decision does not contain an affirmative finding of malingering. The decision does, however, reflect the ALJ’s consideration of evidence of symptom exaggeration. See AR 2154 (considering provider’s observation that Plaintiff “appeared to be ‘overstating and overplaying his [physical] symptoms’”) (quoting AR 646); AR 2155 (considering that an examiner questioned Plaintiff’s “effort during the mental status tasks as he demonstrated a pattern in his errors as well as appearing deliberate in his errors) (citing AR 727-28); see also AR 2160 (“The doctor further observed that the claimant’s persistence seemed to have decreased, with his ‘conviction that he can no longer work,’ but noted that the claimant could be persistent with household tasks, hobbies, chat rooms etc.”) (quoting AR 728). The ALJ properly considered that evidence in discounting Plaintiff’s testimony. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Plaintiff does not, for this reason and for the reasons stated above, demonstrate error in the ALJ’s consideration of his

symptom testimony. C. The ALJ Did Not Err in Addressing Lay Testimony Plaintiff asserts error in relation to lay testimony from his daughter and from Social Security Administration (SSA) employee D. Benton. Dkt. 13 at 18. The ALJ noted she considered a March 2013 statement from Plaintiff’s daughter,5 but gave it little weight as it was a “lay opinion[] based upon casual observation, rather than objective medical evidence.” AR 2163 (citing AR 334-38). The ALJ did not address a November 2013 record in which D. Benton wrote: “Claimant was unable to sit for most of interview as his back and shoulder were hurting him. No other limitations observed.” AR 1689. Plaintiff argues that the ALJ erred in failing to provide the necessary germane reason for

rejecting his daughter’s lay testimony, see Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009), and in failing to even discuss the evidence from D. Benton, see 20 C.F.R. § 404.1529(c)(3). Plaintiff does not, however, demonstrate prejudicial error. The failure to address or to properly address lay testimony may be deemed harmless where it is “‘inconsequential to the ultimate nondisability determination.’” Molina, 674 F.3d at 1115 (cited sources omitted). The Court must look to the record as a whole “to determine whether the error alters the outcome of the case.” Id. Where lay testimony is similar to other

5 The ALJ inaccurately depicts this as a statement from Plaintiff’s mother. See AR 2163. testimony validly discounted by the ALJ or contradicted by more reliable evidence the ALJ credited, any error in relation to that testimony is harmless. Id. at 1115, 1119. In this case, Plaintiff does not identify and the Court does not find any limitations described in the lay testimony that differ from the testimony offered by Plaintiff, or that would

have altered the ALJ’s conclusions about the medical evidence of record. As such, any error in relation to the lay testimony was harmless. See, e.g., Kennedy v. O’Malley, No. 22-35866, 2024 WL 242992, at *2 (9th Cir. Jan. 23, 2024); Baker v. Berryhill, No. 15-35284, 2017 U.S. App. LEXIS 26258, at *8 (9th Cir. Dec. 21, 2017); Molina, 674 F.3d at 1115. For the reasons set forth above, the Commissioner’s final decision is AFFIRMED and this case is DISMISSED with prejudice. Dated this 15th day of October, 2025. A United States Magistrate Judge