1 2 3 4
5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 RICHARD C., 9 Plaintiff, Case No. 3:24-cv-05984-JHC 10 v. ORDER AFFIRMING THE COMMISSIONER’S FINAL 11 COMMISSIONER OF SOCIAL SECURITY, DECISION 12 Defendant. 13 I 14 INTRODUCTION 15 This matter comes before the Court on Plaintiff’s Complaint for Review of a Social 16 Security Disability Decision. Dkt. # 3. Plaintiff seeks review of the denial of his application for 17 Social Security benefits. He contends that the Administrative Law Judge (ALJ) failed to provide 18 specific, clear, and convincing reasons for rejecting his symptom testimony and erred in rejecting 19 part of Dr. Maitreyi Murthy’s medical opinion. For the reasons below, the Court disagrees and 20 AFFIRMS the Commissioner’s final decision. 21 II BACKGROUND 22 Plaintiff is 49 years old, attended school through the tenth grade, and previously worked 23 in positions that involved delivering packages and running heavy equipment. AR 36–38. On 1 September 2, 2022, he filed an initial claim for disability based on “Stroke, Marked weakness 2 left side in arm and leg, Vision problems left eye, Headaches, Tunnel vision and spacing, 3 Difficulty walking.” AR 51. 4 On March 15, 2024, the ALJ issued a decision concluding that Plaintiff was not disabled
5 under the Social Security Act since the filing of his application. AR 27. As pertinent here, the 6 ALJ determined that Plaintiff has the residual functional capacity to perform: 7 light work as defined in 20 CFR 404.1567(b) except can stand/walk 4 of 8 hours and sit 6 of 8 hours. He can never climb ladders, ropes, or scaffolds. He can 8 occasionally climb ramps and stairs, frequently balance as defined in the Selected Characteristics of Occupations, stoop, kneel, crouch, and crawl. He can tolerate 9 occasional exposure to extreme cold and vibration, and he can tolerate no exposure to hazards, such as unprotected heights and heavy machinery, and should do no 10 driving as part of job duties. He can understand, remember, and carry out simple instructions, can use judgment to make simple work-related decisions, and would 11 be absent 1 day per month.
12 AR 21. In making this finding, the ALJ found only partially persuasive Plaintiff’s symptom 13 testimony and one of Dr. Murthy’s reports. AR 22, 25. The ALJ concluded that based on 14 Plaintiff’s residual functional capacity, he could perform jobs that exist in significant numbers in 15 the national economy and was thus not disabled. AR 26–27. 16 Plaintiff appealed the ALJ’s decision to the Appeals Council, which denied his request 17 for review. AR 1. Plaintiff appeals before this Court. 18 III DISCUSSION 19 “This Court may set aside the Commissioner’s denial of Social Security benefits only if 20 the ALJ’s decision is based on legal error or not supported by substantial evidence in the record.” 21 Reynoldson v. Comm’r of Soc. Sec., 649 F. Supp. 3d 1114, 1118 (W.D. Wash. 2023). Substantial 22 evidence is evidence that a reasonable mind could accept as enough to support a conclusion. See 23 Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022). “Where evidence is susceptible to more 1 than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Id. (quoting 2 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). 3 A. Plaintiff’s Symptom Testimony 4 The ALJ did not err in rejecting parts of Plaintiff’s symptom testimony. The
5 Commissioner does not contend that there is evidence of malingering and acknowledges that the 6 specific, clear, and convincing standard applies. See Dkt. # 14 at 2. Under this standard, an ALJ 7 may reject a claimant’s symptom testimony when it is inconsistent with medical evidence “only 8 by offering specific, clear, and convincing reasons for doing so.” Smartt v. Kijakazi, 53 F.4th 9 489, 494 (9th Cir. 2022) (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). 10 For an adverse credibility finding to be “specific” and “clear,” an ALJ must “specifically 11 identify the testimony [from a claimant] she or he finds not to be credible and . . . explain what 12 evidence undermines the testimony.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 13 1102 (9th Cir. 2014) (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)). In 14 doing so, the ALJ may consider factors like general techniques of credibility evaluation, the
15 claimant’s failure to seek treatment, the claimant’s daily activities, and the observations of 16 physicians and third parties about the claimant’s symptoms. See Rounds v. Comm’r Soc. Sec. 17 Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In sum, the “standard requires an ALJ to show 18 [their] work.” Smartt, 53 F.4th at 499. 19 The standard for determining whether an ALJ’s rejection of a claimant’s symptom 20 testimony is “convincing” is less clear. A divided Ninth Circuit panel described the standard as 21 subsumed under the substantial evidence standard: “to discount a claimant’s subjective symptom 22 testimony at step two of the symptom analysis, the substantial evidence standard requires an ALJ 23 to provide specific, clear, and convincing reasons for doing so that comport with this Circuit’s 1 precedents.” Ferguson v. O’Malley, 95 F.4th 1194, 1201 n.3 (9th Cir. 2024). But whereas in 2 some cases the Ninth Circuit has described the standard as requiring substantial evidence, in 3 others it has called it “the most demanding required in Social Security cases.” Compare 4 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) with Garrison, 759 F.3d at 1015
5 (citation omitted). Because the Ninth Circuit describes the clear and convincing standard as “the 6 most demanding required in Social Security cases,” it must be at least somewhat more difficult to 7 meet than the substantial evidence standard. Garrison, 759 F.3d at 1015 (citation omitted). But 8 this does not mean that the standard is onerous. As the Ninth Circuit has explained, the specific, 9 clear, and convincing “standard isn’t whether our court is convinced, but instead whether the 10 ALJ’s rationale is clear enough that it has the power to convince.” Smartt, 53 F.4th at 499. 11 1. Frequency of seizures 12 Plaintiff testified that he has seizures “[t]wo to three times a month.” AR 38. The ALJ 13 rejected this testimony: 14 The claimant’s testimony concerning the frequency of seizures is not consistent with the record. He testified he has seizures 2 or 3 times a month, but his 15 neurologist[, Dr. Murthy,] reports his seizures occur zero to once a month and indicates that he had 3 seizures in the last 4 months [citing AR 507]. The seizure 16 precautions and once per month absences in the residual functional capacity finding adequately account for his seizures. 17 AR 22–23. 18 Plaintiff says that the ALJ should have considered other aspects of the record that support 19 his testimony. He cites a March 6, 2023 progress report in which Dr. Murthy observed, “He has 20 had 2 episodes of intermittent numbness of his tongue last week-twice probably within the same 21 week,” and noted, “I wonder whether the patient had 2 breakthrough seizures.” AR 394–96. He 22 also says that he had “two breakthrough seizures within a month,” citing a September 28, 2023 23 progress note in which Dr. Murthy observed that he “[h]ad 2 breakthrough seizures about 4 1 weeks ago, and then 2 weeks.” Dkt. # 10 at 9 (citing AR 456). Against this evidence, the 2 Commissioner cites the same report by Dr. Murthy that the ALJ relied on, which was completed 3 that same day, September 28, 2023. AR 510. In that report, Dr. Murthy stated that Plaintiff has 4 “0-1” seizures per month, and that the dates of his last three seizures were “05/24/23,”
5 “08/20/23,” and “09/07/23.” AR 507. 6 The ALJ’s reliance on Dr. Murthy’s report indicating that Plaintiff has “0-1” seizures per 7 month and listing the dates of his recent seizures is a specific, clear, and convincing reason for 8 rejecting Plaintiff’s testimony that he has two or three seizures a month. “Contradiction with the 9 medical record is a sufficient basis for rejecting the claimant’s subjective testimony.” Carmickle 10 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). To be sure, not all 11 inconsistencies between symptom testimony and medical evidence suffice to affirm an ALJ’s 12 rejection of a claimant’s testimony. See Glanden v. Kijakazi, 86 F.4th 838, 846 (9th Cir. 2023). 13 But such inconsistencies may suffice when the overall record does not suggest that the ALJ has 14 erred. Cf. id. at 847 (“The longitudinal record tends to vindicate [the claimant’s] pain
15 allegations.”); Lingenfelter v. Astrue, 504 F.3d 1028, 1037 (9th Cir. 2007) (reversing an ALJ’s 16 adverse credibility finding because, contrary to the ALJ’s rationale, “there was not a consensus 17 of medical opinion that [the claimant] retained the capacity to perform sedentary work.”). 18 Plaintiff asserts that his “allegation that he has at least two seizures per month is an 19 average and is not inconsistent with the medical evidence or even his own testimony due to the 20 fluctuation in frequency.” Dkt. # 15 at 4. But he provides no evidence that the average should 21 be two or three seizures a month rather than zero or one. For example, he concedes that he had 22 “no reported seizures in January of 2023,” but then in September 2023 had “two breakthrough 23 seizures.” Id. Plaintiff also contends that a claimant’s testimony cannot be rejected solely on the 1 absence of corroborating objective medical evidence, citing Rollins v. Massanari, 261 F.3d 853, 2 857 (9th Cir. 2001). But the ALJ did not rely solely on the absence of medical evidence 3 supporting a greater frequency of seizures; she relied on Dr. Murthy’s report. See Smartt, 53 4 F.4th at 498 (“When objective medical evidence in the record is inconsistent with the claimant’s
5 subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.”). And the 6 part of Rollins that Plaintiff cites acknowledges that “[w]hile subjective pain testimony cannot be 7 rejected on the sole ground that it is not fully corroborated by objective medical evidence, the 8 medical evidence is still a relevant factor in determining the severity of the claimant’s pain and 9 its disabling effects.” 261 F.3d at 857 (citing 20 C.F.R. § 404.1529(c)(2)). Based on the record 10 as presented by the parties, the ALJ’s stated reliance on Dr. Murthy’s report is a specific, clear, 11 and convincing reason for rejecting Plaintiff’s symptom testimony. 12 2. Left side limitations 13 Plaintiff testified that he has left-hand limitations and left side numbness (which the 14 Court considers together as “left side limitations”) that contribute to his inability to stand for
15 more than 15 minutes and his need to lie down daily. As an initial matter, it is not entirely clear 16 if these symptoms are chronic, or if they occur only after a seizure. Plaintiff’s testimony 17 generally suggests that these limitations are primarily related to the onset of a seizure: 18 Q And if you know, what happens to you during a seizure?
19 A My tongue swells up and then my whole left side goes numb, my left arm, my left leg. Everything just kind of numbs up. 20 Q Okay. Do you fall or you have to sit down, or what do you have to do when 21 the seizures occur?
22 A I have – I have fell a couple times, but most of the time I have to sit down or lay down and take naps. 23 Q All right. How do you feel after the seizure’s done? 1 A I’m weak – would be weak. Most of the time it takes me a couple days to 2 get back up on my feet.
3 Q And after the seizure, how long do you have to lay down and nap for before you feel good enough to kind of walk around? 4 A Oh, it’s at least a couple hours. 5 Q When you say a couple hours, is that two, is that four? 6 A Probably two, two and half hours. There’s some days that it take – they will 7 keep me down all day.
8 Q Okay. And then what’s going on with your left side now?
9 A I just have numbness. I’m real weak ever since my stroke[1] and seizures. I just have real numbness on my left side, my whole left side just goes numb, and I 10 have to sit down constantly, and then try to stand up. I can’t walk too far, I can’t do any of it. It just makes me flat out sick. I have to lay down all the time. 11 Q How long can you stand at one time? 12 A Maybe 15 minutes, if that. 13 AR 38–39 (emphasis added). 14 But parts of Plaintiff’s testimony support chronic left side limitations. For example, in 15 the italicized portion above, he testifies “since my . . . seizures,” which one could interpret as 16 describing long-lasting symptoms. AR 39. He also testified that he drops things with his left 17 hand almost every day, AR 40, and that he spends “four to five hours” lying down during the day 18 because his “left side goes numb, and so it’s just uncomfortable.” AR 42. 19 The Court considers only the ALJ’s rejection of Plaintiff’s testimony about chronic left 20 side limitations because she credited Plaintiff’s testimony about post-seizure left side limitations: 21 Any left side body weakness experienced as a post-seizure manifestation is 22 accounted for in the residual functional capacity finding that he would be absent 23 1 The ALJ found that “evidence does not support the claimant’s allegation of stroke,” and Plaintiff does not challenge this finding on appeal. AR 23. 1 one day per month. His neurologist reports post-seizure left body weakness lasting about a day, with seizures occurring zero to once a month [citing AR 507–08]. 2 AR 23. And Plaintiff does not characterize the ALJ’s decision as rejecting his testimony about 3 post-seizure manifestations. See Dkt. ## 10 at 9–10; 15 at 6. The Court raises this discrepancy 4 not only to clarify the precise issue on appeal but also to underscore the fact that Plaintiff’s 5 testimony about chronic left side limitations is sparse. 6 The ALJ found that “[t]here is no evidence to support [Plaintiff’s] allegations of left hand 7 limitations.” AR 23. The ALJ relied on two sources to support Plaintiff’s lack of left-hand 8 limitations.2 First, she cited an October 20, 2022 progress report by Dr. Murthy observing “5/5 9 muscle power in all major muscle groups of the 4 extremities.” AR 407–08. Second, she cited a 10 January 17, 2023 progress report by Dr. Murthy observing that although Plaintiff’s wife stated 11 that he has “persistent weakness on the left side,” Dr. Murthy noted no weakness in an initial 12 exam. AR 398. The ALJ similarly rejected his testimony about left side numbness that 13 contributes to an inability to stand for more than 15 minutes and a need to lie down daily because 14 there was “no evidence” to support it. AR 23. The ALJ acknowledged that Plaintiff has 15 “slightly diminished motor strength of the left ankle” from a November 2022 left ankle fracture, 16 but that “muscle, strength and sensation has otherwise been full.” AR 23. The ALJ again relied 17 on the October 20, 2022 progress report by Dr. Murthy, AR 407–08, and a November 6, 2023 18 assessment observing that “He has got good mobility. He has got 4+/5 strength.” AR 557. 19 The ALJ provided specific, clear, and convincing reasons to reject Plaintiff’s testimony 20 about chronic left side limitations. As discussed supra Section III.A.1, inconsistency with 21 medical records suffices to reject a claimant’s testimony if the overall record does not strongly 22
23 2 Plaintiff again relies on Rollins, 261 F.3d at 857, to contend that “an ALJ may not reject subjective symptom testimony solely based on the absence of corroborating objective medical evidence.” Dkt. # 10 at 9–10. The Court rejects this contention for the same reasons discussed supra Section III.A.1. 1 support it. Plaintiff cites a September 28, 2023 progress report by Dr. Murthy that observed, 2 “Questionable 5-/5 strength of LUE [left upper extremity].”3 AR 457. He also cites a June 8, 3 2023 assessment observing that he has “LE [left extremity] weakness.”4 AR 569. But these 4 isolated instances do not sufficiently support chronic left side limitations, especially because they
5 were observed shortly after Plaintiff’s reported seizures on September 7, 2023, and May 24, 6 2023. AR 507. The ALJ’s rejection of Plaintiff’s sparse testimony about chronic left side 7 limitations is sufficiently convincing because it is based on inconsistent medical records and the 8 lack of other medical evidence. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 9 1196–97 (9th Cir. 2004) (affirming an ALJ’s credibility determination based on medical 10 opinions undermining the claimant’s testimony and the lack of medical evidence supporting the 11 claimant’s claims). 12 3. Anxiety, focus, and concentration 13 Plaintiff’s testimony about his anxiety, focus, and concentration is also minimal.5 When 14 asked about his anxiety, Plaintiff testified that he is “claustrophobic,” and cannot walk anywhere
15 that he wants to go or “do any physical things.” AR 41. Plaintiff also testified that he “lose[s] 16 17
18 3 Plaintiff also cites the same November 6, 2023 assessment relied on by the ALJ, AR 557, but it is unclear how it supports his position. 19 4 The assessment also observes that he has “poor ankle mobility,” “poor balance,” and “poor independence with functional mobility,” but says that these symptoms are consistent with his ankle 20 fracture from November 2022. See AR 569. Thus, the Court does not construe this assessment as very probative of Plaintiff’s chronic left side limitations. 5 Plaintiff summarizes his testimony about his mental limitations as follows: 21
In regard to his mental status, Plaintiff testified that he loses focus and 22 concentration all the time and that his wife has to help him with things such as finishing sentences or remembering tasks. [AR] 40. Plaintiff also testified that he 23 has a hard time with self-care tasks such as dressing, feeding, and bathing himself.
Dkt. # 10 at 9. 1 focus and concentration all the time” and that his wife assists him with various tasks. AR 40. 2 After summarizing a psychological evaluation of Plaintiff, the ALJ concluded: 3 The limitation to understand, remember, and carry out simple instructions and use judgment to make simple work-related decisions adequately accounts for the 4 claimant’s mental impairment. Although he feels anxious if there are too many people in a small space this does not generally interfere with day-to-day activities 5 [citing AR 447]. Treatment records reflect intact memory, attention, and concentration on mental status exams [citing AR 396, 400, 403, 407, 457]. There 6 is no evidence he has sought any mental health treatment.
7 AR 23–24. 8 Plaintiff contends that the ALJ should have credited his minimal testimony about his 9 anxiety and inability to focus for three reasons, none of which are persuasive. First, Plaintiff’s 10 contention as to his anxiety—for which he cites no authority—is unclear. He says that he 11 “testified in his function report that he does not travel or go into public places regularly, but 12 when he does, he does not go by himself.” Dkt. # 10 at 10 (citing AR 229). Thus, he asserts that 13 his “day-to-day activities are likely not affected because he does not go out in public often.” Id. 14 Plaintiff might be implying that, contrary to the ALJ’s conclusion, his anxiety affects his day-to- 15 day activities because it prohibits him from going out in public. But the thrust of his contention 16 is not obvious, and, in any event, it is based on speculation. 17 Second, Plaintiff contends that the ALJ erroneously relied on mental status exams to 18 determine his limitations based on his anxiety or inability to focus. He relies on Ghanim v. 19 Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014), in which the Ninth Circuit held that the ALJ erred 20 in rejecting the claimant’s testimony because the ALJ relied on “observations of cognitive 21 functioning during therapy sessions [that did] not contradict [the claimant’s] reported symptoms 22 of depression and social anxiety.” The Ninth Circuit explained that although some treatment 23 notes undermined the claimant’s testimony, the overall record “consistently reveal[ed] that, 1 despite some occasional signs of improvement, [the claimant] continued to suffer frequent 2 nightmares, hallucinations, social anxiety, difficulty sleeping, and feelings of hopelessness.” Id. 3 But unlike the claimant in Ghanim, Plaintiff does not demonstrate that the record supports his 4 minimal testimony about his mental limitations.6 See AR 40–41. The mental status exams
5 undermine Plaintiff’s testimony about his inability to focus. And even if these mental status 6 exams do not suffice to reject Plaintiff’s testimony that his anxiety prohibits him from, for 7 example, entering public spaces or engaging in daily activities, the ALJ relied on Dr. Higgins’ 8 June 2023 psychological evaluation, which, reports, “I would not expect his psychological 9 symptoms to interfere with his attendance at work.”7 AR 23–24 (citing AR 450). To the extent 10 that Plaintiff suggests that ALJs are prohibited from relying on mental status exams in rejecting 11 symptom testimony, he is mistaken. See e.g., James H. v. Berryhill, 2019 WL 330166, at *6 12 (W.D. Wash. Jan. 25, 2019). 13 Finally, Plaintiff contends that the ALJ erred in relying on the fact that he has not sought 14 any mental health treatment. Granted, “it is a questionable practice to chastise one with a mental
15 impairment for the exercise of poor judgment in seeking rehabilitation.” Regennitter v. Comm’r 16 of Soc. Sec. Admin., 166 F.3d 1294, 1299–300 (9th Cir. 1999) (citation omitted). But “a 17 claimant’s failure to assert a good reason for not seeking treatment . . . can cast doubt on the 18 sincerity of the claimant’s [symptom] testimony.” Molina v. Astrue, 674 F.3d 1104, 1113–14 19 20 6 Plaintiff points out that the ALJ summarized observations made in a psychological evaluation by Dr. Higgins, Dkt. # 15 at 5 (AR 23–24, in turn citing AR 448–49), but does not explain how this 21 evaluation undermines the ALJ’s reliance on mental status exams. If anything, the ALJ’s summary of this evaluation suggests that the ALJ considered the entire record before reaching her conclusions. 22 7 In his reply, Plaintiff says that “An ALJ must show why the abnormal notations in the examination are less probative that [sic] cited benign observations or examination results,” citing Crystal 23 F. v. Acting Com’r of Soc. Sec., Case No. 3:23-cv-06100-TLF, Dkt. # 24 at 14 (W.D. Wash. Feb. 7, 2025). Dkt. # 15 at 5. But it is unclear what “abnormal notations” and “benign observations or examination results” Plaintiff refers to. 1 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a) (quotation marks and 2 citation omitted). Relying on Dr. Higgins’s psychological evaluation, Plaintiff contends that “[i]t 3 is entirely possible that his phobias, cognitive, and learning disabilities prevent him from 4 understanding or seeking the appropriate treatment.” Dkt. # 15 at 6 (citing AR 449). But such
5 speculation does little to undermine the persuasiveness of the ALJ’s reasoning, which relies on 6 the same psychological evaluation by Dr. Higgins for the proposition that his anxiety “does not 7 generally cause interference in his day-to-day activities,” and mental status reports observing that 8 his memory and concentration are intact. AR 23–24 (citing AR 400, 447). And Plaintiff cites no 9 evidence suggesting that the ALJ “simply pick[ed] out a few isolated examples to show that his 10 testimony was inconsistent with the record.” Ahearn v. Saul, 988 F.3d 1111, 1117 (9th Cir. 11 2021). Thus, the ALJ’s stated reliance on these sources is a specific, clear, and convincing 12 reason for rejecting his symptom testimony. 13 B. Dr. Murthy’s September 28, 2023 report 14 The ALJ did not err in concluding that Dr. Murthy’s September 28, 2023 report was
15 partially unpersuasive. Under the 2017 revised Social Security regulations, an ALJ must 16 articulate the persuasiveness of each medical opinion using several factors, specifically 17 supportability and consistency. Woods, 32 F.4th at 791–92 (quoting 20 C.F.R. § 404.1520c(a)). 18 “Supportability means the extent to which a medical source supports the medical opinion by 19 explaining the ‘relevant . . . objective medical evidence.’” Id. (quoting 20 C.F.R. 20 § 404.1520c(c)(1)). “Consistency means the extent to which a medical opinion is ‘consistent . . 21 . with the evidence from other medical sources and nonmedical sources in the claim.’” Id. at 22 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). A reviewing court must uphold the ALJ’s 23 1 assessments of these factors if they are supported by substantial evidence. See Stiffler v. 2 O’Malley, 102 F.4th 1102, 1106 (9th Cir. 2024). 3 As pertinent here, the ALJ summarized Dr. Murthy’s report as follows: 4 Dr. Murthy opined the claimant’s symptoms would occasionally interfere with the attention and concentration needed to perform simple work tasks and opined he is 5 only capable of low stress jobs and it was likely seizures would disrupt the work of coworkers and he would need more supervision at work than an unimpaired worker. 6 . . He would need to lie down for a few hours when he had a seizure.
7 AR 25 (citing AR 507).
8 The ALJ found Dr. Murthy’s opinion only partially persuasive, rejecting part of it: 9 This opinion is partially persuasive. The need for breaks, the concentration issues, and the disruption of coworkers are noted to be related to when the claimant has a 10 seizure, which is zero to one time a month. The claimant’s seizures are accounted for in the monthly absences in the residual functional capacity finding. No basis is 11 provided for the need for more supervision. There is no evidence the claimant would require more supervision than others if in a work setting not involving 12 exposure to hazards.
13 AR 25.
14 1. Post-seizure manifestations 15 Plaintiff contends that the ALJ erred in finding that his post-seizure manifestations are 16 accounted for in having one absence a month based on his residual functional capacity. AR 21. 17 He asserts that the ALJ did not consider the supportability and consistency factors in rejecting 18 Dr. Murthy’s opinion that he experiences post-seizure “body weakness (face, arm & leg)” that 19 lasts “about 1 day” during which he has “fatigue” and “cannot walk.” AR at 508. He says that if 20 this part of Dr. Murthy’s opinion were credited, his residual functional capacity would include 21 sometimes having two absences a month, which the vocational expert testified might not be 22 tolerated by many employers. AR 45–46. 23 1 The Commissioner counters that the ALJ did not have to consider that Plaintiff would 2 have fatigue and be unable to walk the day after a seizure because Dr. Murthy’s brief notes as to 3 these issues do not constitute a medical opinion. Dkt. # 14 at 9. But the Court need not reach 4 this contention because even if the ALJ were required to address these notes, she did so in a
5 manner that is supported by substantial evidence. 6 Although it is not entirely clear, the ALJ’s assessment of the supportability factor as to 7 Plaintiff’s post-seizure manifestations can “reasonably be discerned.” Treichler, 775 F.3d at 8 1103 (citation omitted). The ALJ summarized that “[t]he need for breaks, the concentration 9 issues, and the disruption of coworkers are noted to be related to when the claimant has a seizure, 10 which is zero to one time a month,” and therefore “[t]he claimant’s seizures are accounted for in 11 monthly absences in the residual functional capacity finding.” AR 25. Thus, the ALJ did not 12 necessarily reject Dr. Murthy’s observation that Plaintiff’s post-seizure manifestations last a day. 13 Rather, the ALJ reasonably concluded that one monthly absence in the residual functional 14 capacity finding sufficiently accounts for Plaintiff’s post-seizure manifestations because the
15 report states that Plaintiff does not have a seizure every month. AR 507. Substantial evidence 16 supports this conclusion, especially considering the brevity of Dr. Murthy’s report. See Stiffler, 17 102 F.4th at 1107 (an ALJ may reject an opinion if it “is brief, conclusory, and inadequately 18 supported by clinical findings”) (quoting Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020)). 19 While the ALJ did not assess the consistency factor as to Plaintiff’s post-seizure 20 manifestations, this is not grounds for reversal. In Woods, the Ninth Circuit affirmed an ALJ’s 21 rejection of a medical opinion based solely on the fact that it was inconsistent with the overall 22 record. 32 F.4th at 792–93 & n.4. Courts in this District have similarly interpreted Woods. See, 23 Birke D. v. Comm’r of Soc. Sec., 2025 WL 2104339, at *2 (W.D. Wash. July 28, 2025) (“[A]n 1 ALJ’s finding that a medical opinion lacks either consistency or supportability is enough to find 2 an opinion unpersuasive.”). The Court recognizes that this may appear to be at odds with the 3 language of the regulations as quoted in Woods itself: “[W]e will explain how we considered the 4 supportability and consistency factors for a medical source’s medical opinions.” 32 F.4th at 792
5 (quoting 20 C.F.R. § 404.1520c(b)(2)) (emphasis added). But the Court is bound by Ninth 6 Circuit precedent, and Plaintiff does not provide a legal basis for departing from Woods. 7 2. Need for supervision 8 Second, Plaintiff contends that the ALJ erred in concluding that “[t]here is no evidence 9 the claimant would require more supervision than others if in a work setting not involving 10 exposure to hazards.” AR 25. Plaintiff asserts that the ALJ should have considered Dr. 11 Murthy’s opinion that during and immediately after one of his seizures (for which he has less 12 than a minute warning), others must “[c]lear the area of hard or sharp objects,” “[l]oosen tight 13 clothing,” “[p]ut something soft under [his] head,” and “[r]emove [his] glasses.” AR 507–08. 14 And after a seizure, others must turn him “on side to allow saliva to drain from mouth.” AR 508.
15 But again, the ALJ recognized that “the disruption of coworkers are noted to be related to 16 when the claimant has a seizure, which is zero to one time a month,” and that his “seizures are 17 accounted for in the monthly absences in the residual functional capacity finding.” AR 25. The 18 ALJ then explained, “No basis is provided for the need for more supervision.” AR 25. Thus, the 19 ALJ considered Dr. Murthy’s opinion as to Plaintiff’s need for coworkers to assist him during a 20 seizure; she did not reject this part of the report. And Plaintiff appears to acknowledge that the 21 ALJ considered the supportability factor in finding that there was “no evidence” to support his 22 23 1 ||need for more supervision. AR 25. The ALJ’s assessment of this factor is supported by 2 || substantial evidence because the only part of Dr. Murthy’s report addressing supervision at work 3 || apart from instances in which he has a seizure 1s a checkmark in a “Yes” box in response to a 4 || question asking, “Is it likely that this patient would need more supervision at work than an 5 || unimpaired worker?” AR 509; see Ford, 950 F.3d at 1155 (“While an opinion cannot be rejected 6 || merely for being expressed as answers to a check-the-box questionnaire, the ALJ may 7 || permissibly reject check-off reports that do not contain any explanation of the bases of their 8 || conclusions.”) (cleaned up). And as discussed supra Section III.B.1, the ALJ was not required to 9 || also address the consistency factor to reject part of Dr. Murthy’s report. 10 IV CONCLUSION 11 For these reasons, the Court AFFIRMS the Commissioner’s final decision, and 12 DISMISSES this case with prejudice. 13 Dated this 5th day of September, 2025. 14 15 16 Z 1d, 17 John H. Chun United States District Judge 18 19 20 21 22 8 See Dkt. ## 10 at 6 (“[W]hile the ‘supportability’ factor was considered, the ALJ fails to analyze 23 || the ‘consistency’ factor of Dr. Murthy’s opinion.”); 15 at 3 (“[T]he ALJ’s mention of a lack of explanation for the recommendation for extra supervision at work does not constitute ‘consistency’ reasoning, but rather ‘supportability’ of the opinion.”). ORDER AFFIRMING THE COMMISSIONER’S