Angela H. v. Commissioner of Social Security

Opinion

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5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 ANGELA H., 8 Plaintiff, Case No. C25-5475-SKV 9 v. ORDER AFFIRMING THE COMMISSIONER’S DECISION 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12

13 Plaintiff seeks review of the ALJ’s decision finding she was no longer disabled as of 14 April 19, 2019. Having considered the ALJ’s decision, the administrative record (AR), and all 15 memoranda of record, the Court AFFIRMS the Commissioner’s final decision and DISMISSES 16 the case with prejudice. 17 BACKGROUND 18 In March 2013, Plaintiff was found disabled beginning June 17, 2011. See AR 1813. 19 Her disability was subsequently determined to have continued in a determination dated June 29, 20 2015. See id. In April 2019, Plaintiff was found to be no longer disabled since April 19, 2019. 21 See id. This determination was upheld on reconsideration and, following a hearing, in an ALJ 22 decision dated November 24, 2021. See AR 2271-86. In August 2022, following a denial of 23 review by the Appeals Council and an appeal to this Court, the parties stipulated to a remand. 1 See AR 2301-02. On remand, an ALJ held a hearing, AR 1843-76, and, in a decision dated 2 March 27, 2024, found that Plaintiff’s disability ended on April 19, 2019, and that she had not 3 become disabled again since that date. AR 1813-29. 4 THE ALJ’S DECISION

5 The ALJ was tasked with determining whether Plaintiff’s disability had ended. See AR 6 1814. He found that the most favorable medical decision, or the “comparative point decision” 7 (CPD), was the determination dated June 29, 2015, and outlined her medically determinable 8 impairments and residual functional capacity (RFC) assessed at the time of the CPD. AR 1815. 9 The ALJ thereafter, and as described below, applied the eight-step “continuing disability” 10 evaluation process. See 20 C.F.R. § 404.1594. 11 The ALJ found that Plaintiff did not perform substantial gainful activity (SGA) for the 12 period prior to October 1, 2020, due to a trial work period; performed SGA from October 1, 13 2020, through December 31, 2020; and had not engaged in SGA since January 1, 2021. AR 14 1815. The ALJ described Plaintiff’s medically determinable impairments and found that, since

15 April 19, 2019, those impairments did not meet or equal a listed impairment.1 AR 1817-19. The 16 ALJ found that medical improvement occurred on April 19, 2019, and that that improvement was 17 related to Plaintiff’s ability to work because it resulted in an increase in the RFC. AR 1819. The 18 ALJ found that, since April 19, 2019, Plaintiff continued to have severe impairments, including 19 obesity, multi-level degenerative disc disease, major depressive disorder, eating disorder, and 20 migraine headache disorder. Id. 21 The ALJ assessed Plaintiff’s RFC as including the ability to perform light work, except 22 that Plaintiff: can sit, stand, and walk for four hours in an eight-hour workday; occasionally 23

1 20 C.F.R. Part 404, Subpart P., App. 1. 1 climb ramps and stairs; never climb ladders, ropes, or scaffolds; occasionally stoop, kneel, and 2 crouch; never crawl; occasionally work at unprotected heights or around moving mechanical 3 parts; can have occasional exposure to vibration; must be permitted to use hearing protection in 4 loud or very loud environments; can frequently interact with coworkers and occasionally interact

5 with the public; and cannot work in direct sunlight or, if working an outdoor job, must be 6 permitted to use a hat and/or sunglasses to keep sun out of her eyes. AR 1820. The ALJ found 7 that, since April 19, 2019, Plaintiff is capable of performing past relevant work at the composite 8 job of a production clerk and personal scheduler. AR 1827. The ALJ alternatively found there 9 were other jobs existing in significant numbers in the national economy that Plaintiff can 10 perform. AR 1828. The ALJ therefore concluded that Plaintiff’s disability ended on April 19, 11 2019, and that she has not become disabled again since that date. AR 1829. 12 Plaintiff sought review and the Appeals Council declined to assume jurisdiction, AR 13 1725-31, making the ALJ’s decision the Commissioner’s final decision. Plaintiff appealed the 14 final decision of the Commissioner to this Court. Dkt. 1. The parties consented to proceed

15 before the undersigned Magistrate Judge. Dkt. 10. 16 LEGAL STANDARDS 17 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 18 security benefits when the ALJ’s findings are based on harmful legal error or not supported by 19 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 20 2005). As a general principle, an ALJ’s error may be deemed harmless where it is 21 “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 22 1115 (9th Cir. 2012) (cited sources omitted). The Court looks to “the record as a whole to 23 determine whether the error alters the outcome of the case.” Id. 1 Substantial evidence is “more than a mere scintilla. It means - and means only - such 2 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 3 Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (cleaned up); Magallanes v. Bowen, 881 F.2d 747, 4 750 (9th Cir. 1989). The ALJ is responsible for evaluating symptom testimony, resolving

5 conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. 6 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record 7 as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the 8 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is 9 susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that 10 must be upheld. Id. 11 DISCUSSION 12 Plaintiff raises a variety of arguments associated with the decisions of both the Appeals 13 Council and the ALJ. See Dkts. 25 & 33. The Commissioner rejects Plaintiff’s challenges as 14 related to the Appeals Council and argues that the ALJ’s decision is free of harmful legal error,

15 supported by substantial evidence, and should be affirmed. 16 A. Appeals Council Decision 17 Plaintiff asserts that the Appeals Council erred by applying the wrong standard of review 18 and failing to consider her factual and legal arguments. Dkt. 25 at 1. More specifically, Plaintiff 19 assigns error in relation to, inter alia, the Appeals Council’s failure to file an amended notice 20 correcting the deadline for filing exceptions to the ALJ’s decision, failure to identify the correct 21 date of the ALJ’s decision, and failure to list out and consider all of the arguments and evidence 22 she submitted. See id. at 1-5. 23 1 The Court does not have jurisdiction to review a decision of the Appeals Council denying 2 a request for review, “because the Appeals Council decision is a non-final agency action.” 3 Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (citing Taylor v. 4 Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011)). See also Luther v. Berryhill,

5 891 F.3d 872, 876 (9th Cir. 2018) (“[T]he Appeals Council’s reasoning for denying review is not 6 considered on subsequent judicial review.”). “When the Appeals Council declines review, ‘the 7 ALJ’s decision becomes the final decision of the Commissioner,’ and the district court reviews 8 that decision for substantial evidence, based on the record as a whole[.]” Brewes, 682 F.3d at 9 1161-62 (first quoting Taylor, 659 F.3d at 1231; then citing Tackett v. Apfel, 180 F.3d 1094, 10 1097 (9th Cir. 1999)). 11 In this case, the Appeals Council denied Plaintiff’s request for review. See AR 1725-31. 12 The Court therefore lacks jurisdiction over and does not consider Plaintiff’s challenges to the 13 decision of the Appeals Council denying review.2 14 B. ALJ’s Decision

15 Plaintiff asserts numerous errors in relation to the ALJ’s decision. See Dkts. 25 & 33. 16 However, as the Commissioner observes, the assignments of error are difficult to discern, lack 17 sufficient development, support, and clarity, and are otherwise deficient. 18 Plaintiff bears the burden of demonstrating harmful error. See Ludwig v. Astrue, 681 19 F.3d 1047, 1054 (9th Cir. 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 407-09 (2009)). 20 Neither the bare assertion of an issue, nor summaries of evidence unaccompanied by analysis or 21 legal arguments suffice to demonstrate harmful error. See Greenwood v. Fed. Aviation Admin., 22 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, and a 23 2 To the extent Plaintiff asserts an absence of substantial evidence support for the ALJ’s decision based on the evidence submitted to the Appeals Council, that assertion is separately addressed below. 1 bare assertion does not preserve a claim, particularly when a host of other issues are presented 2 for review.”); see also Putz v. Kijakazi, No. 21-35733, 2022 WL 6943095, at *2 (9th Cir. Oct. 3 12, 2022) (finding plaintiff waived any points offered either through bare assertions of error or 4 through lists of “numerous clinical findings, unaccompanied by argument, intended to

5 corroborate testimony the ALJ discounted”); Ve Thi Nguyen v. Colvin, C13-882 RAJ-BAT, 2014 6 WL 1871054, at *2 (W.D. Wash. May 8, 2014) (“It is not enough merely to present an argument 7 in the skimpiest way, and leave the Court to do counsel’s work-framing the argument, and 8 putting flesh on its bones through a discussion of the applicable law and facts.”). Also, the Court 9 may not “reweigh the evidence or substitute [its] judgment for that of the ALJ.” Ahearn v. Saul, 10 988 F.3d 1111, 1115 (9th Cir. 2021). Finally, because “arguments not raised by a party in an 11 opening brief are waived[,]” Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1177 n.8 (9th 12 Cir. 2009), the Court considers only those arguments first raised “‘specifically and distinctly’” in 13 Plaintiff’s opening brief, Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 14 2003) (quoted source omitted).

15 Plaintiff’s assignments of error are set forth in a disorganized and confusing fashion. 16 Plaintiff relies on summaries of evidence and conclusory assertions, and omits demonstrations of 17 harm. Plaintiff, for example, asserts error in the consideration of assessments by her therapist 18 and lay testimony from her family members and employer, but does not address the reasons 19 provided by the ALJ for assigning those assessments and testimony little weight, let alone 20 demonstrate error or resulting harm. See AR 1826 (finding assessments of Jenna Wilson, MSW, 21 not consistent with her own office notes, which showed generally normal findings, appearing to 22 rely heavily on and uncritically accept as true Plaintiff’s subjective report of symptoms and 23 limitations, and not consistent with Plaintiff’s self-reported activities); AR 1827 (finding lay 1 statements not consistent with Plaintiff’s treatment history, which established conservative 2 treatment, and not consistent with medical observations, which were generally normal). 3 The Court finds no harmful error established in relation to the insufficiently briefed 4 assignments of error contained in Plaintiff’s opening brief and declines to address any new

5 arguments raised for the first time in her reply. See Dkts. 25 & 33; see also Dkt. 27 at 8-9. 6 However, like the Commissioner, the Court construes Plaintiff’s opening brief to adequately 7 raise two distinct assignments of error, which the Court separately addresses below. 8 1. Evidence Submitted to the Appeals Council 9 “[W]hen the Appeals Council considers new evidence in deciding whether to review a 10 decision of the ALJ, that evidence becomes part of the administrative record, which the district 11 court must consider when reviewing the Commissioner’s final decision for substantial evidence.” 12 Brewes, 682 F.3d at 1163. The Court must, in other words, “determine whether the ALJ’s 13 finding of nondisability was supported by substantial evidence in the entire record – including 14 any new evidence in the administrative record that the Appeals Council considered – not just the

15 evidence before the ALJ.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 2017). 16 Plaintiff submitted new evidence to the Appeals Council. All of that evidence – which is 17 dated between December 2023 and February 2025 and includes treatment notes and summaries, 18 imaging results, a letter from a provider supporting a pool membership, a note from a provider 19 regarding headaches/migraines, and other documents – is included in the record. See AR 1732- 20 1809, 2170-82, 2223-41. See also AR 1726 (Appeals Council decision discussing the records 21 dated during the period under review by the ALJ and finding that evidence would not change the 22 ALJ’s decision; further finding no other basis for changing the ALJ’s decision). 23 1 Plaintiff fails to demonstrate that the evidence submitted to the Appeals Council 2 undermines the substantial evidence support for the ALJ’s decision. Plaintiff does not show, for 3 example, how the evidence undermines the ALJ’s assessment of medical opinions or the ALJ’s 4 conclusion that Plaintiff could perform light work with postural, exertional, environmental, and

5 social imitations. Plaintiff, at best, argues that both the evidence submitted to the Appeals 6 Council and the other medical evidence of record should be interpreted as supporting a finding of 7 disability. To the extent Plaintiff suggests a different interpretation of the evidence, that 8 argument does not support remand. Indeed, the mere “possibility of drawing two inconsistent 9 conclusions from the evidence does not prevent an administrative agency’s finding from being 10 supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620 11 (1966). The “key question is not whether there is substantial evidence that could support a 12 finding of disability, but whether there is substantial evidence to support the Commissioner’s 13 actual finding that claimant is not disabled.” Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 14 1997). See also Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2018) (the fact the ALJ “could

15 have come to a different conclusion” in interpreting the record does not suffice to demonstrate 16 error) (emphasis in original). Plaintiff fails to show that the records submitted to the Appeals 17 Council compel a different conclusion than the one reached by the ALJ. 18 2. Symptom Testimony 19 Absent evidence of malingering, an ALJ must provide clear and convincing reasons to 20 discount a claimant’s testimony. See Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 21 An ALJ is not required to believe every allegation, Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir. 22 2021), nor to analyze the claimant’s testimony line by line, Lambert v. Saul, 980 F.3d 1266, 1277 23 (9th Cir. 2020). “The standard isn’t whether our court is convinced, but instead whether the 1 ALJ’s rationale is clear enough that it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 2 489, 499 (9th Cir. 2022). 3 Here, in discounting Plaintiff’s symptom testimony, the ALJ found that the medical 4 findings did not support the existence of greater limitations than those assessed in the RFC,

5 inconsistency between Plaintiff’s allegations and the objective medical and other evidence of 6 record, that treatment for her physical impairments had been essentially routine and/or 7 conservative in nature and generally effective in controlling her symptoms, and that her mental 8 health treatment had likewise been essentially routine and/or conservative. AR 1820-24. The 9 ALJ also found that Plaintiff’s activities, including her part-time work during the alleged period 10 of disability, volunteering with multiple organizations (including volunteering, going to 11 meetings, doing fundraisers for a children’s hospital, planning and meetings over Zooms, and 12 holding an elected, “line officer” position), and generally normal activities of daily living 13 (including shopping, doing household chores, preparing meals, playing games, and light 14 gardening), suggested greater functioning than alleged. AR 1824-25.

15 Plaintiff asserts that the ALJ failed to provide clear, and convincing reasons for rejecting 16 her testimony. She appears to argue that the medical evidence supports a different conclusion, 17 that the ALJ misrepresented and relied on an impermissibly selective reading of the record, that 18 the ALJ failed to cite sufficient evidence to support his conclusions, and that the decision lacks a 19 “‘logical bridge’” between the evidence and result. See Dkt. 25 at 17-21 (quoted source 20 omitted). 21 Contrary to Plaintiff’s contention, and as described above, the ALJ provided several 22 specific, clear, and convincing reasons for discounting Plaintiff’s testimony. See, e.g., Smartt, 53 23 F.4th at 498-500 (ALJ properly considers inconsistency between testimony and objective 1 medical evidence, as well as inconsistency with activities); Ford v. Saul, 950 F.3d 1141, 1156 2 (9th Cir. 2020) (“An ALJ may consider any work activity, including part-time work, in 3 determining whether a claimant is disabled[.]”); Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 4 2007) (“evidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony

5 regarding severity of an impairment”); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 6 (“While subjective pain testimony cannot be rejected on the sole ground that it is not fully 7 corroborated by objective medical evidence, the medical evidence is still a relevant factor in 8 determining the severity of the claimant’s pain and its disabling effects.”). Moreover, the ALJ’s 9 interpretation of the evidence was rational, supported by substantial evidence, and accompanied 10 by detailed explanations of the evidence relied on and its relationship to the conclusions reached. 11 See AR 1820-25. Plaintiff, for these reasons, fails to demonstrate error in the ALJ’s 12 consideration of her subjective symptom testimony. 13 CONCLUSION 14 For the reasons set forth above, the Commissioner’s final decision is AFFIRMED and

15 this case is DISMISSED with prejudice. 16 Dated this 11th day of May, 2026. 17 A 18 S. KATE VAUGHAN United States Magistrate Judge 19

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