Denney v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: June 25, 2025
• Docket: 2:24-cv-01958
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 KIMBERLY D., CASE NO. 2:24-cv-01958-GJL 11 Plaintiff, v. SOCIAL SECURITY DISABILITY 12 APPEAL ORDER COMMISSIONER OF SOCIAL 13 SECURITY, 14 Defendant.

15 This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local 16 Magistrate Judge Rule 13. See also Consent to Proceed Before a United States Magistrate Judge, 17 Dkt. 3. This matter has been fully briefed. See Dkts. 7, 11, 12. 18 After considering the administrative record (AR) and all memoranda, the Court concludes 19 the Administrative Law Judge (ALJ) did not err in finding Plaintiff not disabled. The Court 20 accordingly AFFIRMS the Commissioner's final decision in this matter. 21 I. PROCEDURAL HISTORY 22 Plaintiff’s application for Disability Insurance Benefits (DIB) was denied initially and 23 following reconsideration. AR 60–105. Plaintiff’s requested hearing was held before the ALJ on 24 1 September 12, 2023. AR 35–59. On December 26, 2023, the ALJ issued a written decision 2 concluding Plaintiff was not disabled. AR 14–34. On October 1, 2024, the Appeals Council 3 declined Plaintiff’s request for review, making the ALJ’s decision the Commissioner’s final 4 decision subject to judicial review. AR 1–6. On November 27, 2024, Plaintiff filed a Complaint

5 in this Court seeking judicial review of the ALJ’s decision. Dkt. 1. Defendant filed the sealed AR 6 in this matter on January 27, 2025. Dkt. 5. 7 II. BACKGROUND 8 Plaintiff was born in 1970 and was 50 years old on June 1, 2020, her alleged date of 9 disability onset. See AR 18, 28. Plaintiff has at least a high school education. AR 29. According 10 to the ALJ, Plaintiff suffers from, at a minimum, the severe impairments of degenerative disc 11 disease of the spine; obesity; anxiety disorder(s) with panic; Post-Traumatic s Stress Disorder 12 (PTSD); and major depressive disorder. AR 20. The ALJ found Plaintiff had a Residual 13 Functional Capacity (RFC) with the following mental limitations: 14 She can learn, remember, and perform simple, routine, and repetitive work tasks, involving short and simple work instructions, which are performed in a routine and 15 predictable work environment with few and only simple work place changes. She can attend, concentrate, and maintain pace for simple, routine, and repetitive work 16 tasks for two hours at a time with normal breaks. She may have frequent contact with supervisors and coworkers during all periods of initial training. Thereafter she 17 may have occasional and superficial contact with supervisors and coworkers. She should have only minimal (defined as 10 percent of the work period or less) and 18 superficial contact with the public.

19 See AR 23–24. Based on the assessed RFC, the ALJ found Plaintiff could perform work existing 20 in significant numbers in the national economy and therefore was not disabled. AR 29.1 21 22 23 1 The ALJ assessed different RFCs for two periods (the onset date through July 31, 2022, and August 1, 2022, 24 through the DLI) but included the same mental limitations quoted here for both periods. See AR 23–24. 1 III. DISCUSSION 2 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 3 benefits if, and only if, the ALJ’s findings are based on legal error or not supported by 4 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th

5 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 6 In her opening brief, Plaintiff argues the ALJ erred in (1) assessing her subjective mental 7 symptom testimony, (2) assessing her husband’s statement, and (3) failing to resolve an alleged 8 conflict between the Dictionary of Occupational Titles (DOT) and the Vocational Expert (VE)’s 9 testimony. Dkt. 7. 10 A. Subjective Symptom Testimony 11 Plaintiff challenges the ALJ’s assessment of her testimony regarding the severity of her 12 mental symptoms. Dkt. 7 at 2. Plaintiff testified she cannot function for prolonged periods in 13 public due to anxiety and stress (see AR 45, 250), she has difficulties concentrating sufficiently 14 to complete tasks (see AR 44, 46, 254), and cannot engage in driving and other activities due to

15 stress (see AR 250). The ALJ was required to provide specific, clear and convincing reasons for 16 rejecting this testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citing 17 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). 18 The ALJ properly discounted Plaintiff’s testimony because he found “the intensity, 19 persistence and limiting effects of [her] symptoms” inconsistent with the objective medical 20 evidence and Plaintiff’s functioning. AR 25. “Contradiction with the medical record is a 21 sufficient basis for rejecting the claimant's subjective testimony.” Carmickle v. Comm'r, Soc. 22 Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 23 (9th Cir.1995)).

24 1 The ALJ found Plaintiff’s testimony inconsistent with normal mental status 2 examinations, as well as her denials of panic attacks, PTSD symptoms, and depressive episodes. 3 See AR 25–26. The ALJ reasonably found such evidence inconsistent with Plaintiff’s testimony. 4 Contrary to Plaintiff’s testimony of significant difficulties with concentration, nearly all mental

5 status examinations found she had normal concentration. See AR 345, 348, 351, 354, 433, 484, 6 886, 904, 932, 946. The same evidence showed normal judgment and thought process. Plaintiff 7 contends the mental status examinations were not “formal mental status examinations” (Dkt. 7 at 8 4), but even if this is so, they still reflect providers’ judgment about Plaintiff’s symptomology at 9 appointments which the ALJ could rely upon. Aside from Plaintiff’s statements to providers that 10 she sometimes struggled completing tasks, there is little evidence demonstrating abnormal 11 concentration in the record. The ALJ reasonably weighed the evidence as undercutting Plaintiff’s 12 testimony. 13 Similarly, Plaintiff’s denials of depressive symptoms and panic attacks at medication 14 management appointments (see AR 338, 341, 344, 482–83, 496, 860, 878, 884, 888, 944, 956,

15 966, 976–77, 988–89, 994–95) along with treatment notes indicating she was doing well, 16 experiencing improvement, and largely symptom free (see AR 338, 341, 344, 500, 502, 860, 868, 17 920, 922, 934, 950, 952, 954, 956, 960), could reasonably be found to be inconsistent with her 18 testimony that her symptoms of panic attacks and PTSD prevent her from spending substantial 19 time outside of her home. 20 Arguing to the contrary, Plaintiff points to treatment notes showing she continued to have 21 symptoms, demonstrating her symptoms waxed and waned and were susceptible to stressors. See 22 Dkt. 7 at 5–6. And while this assertion may be accurate in part as many treatment notes appear to 23

24 1 reveal Plaintiff had continuing symptoms during the relevant period, the ALJ acknowledged as 2 much, finding much of her continued symptomology was captured by the RFC: 3 I rely on evidence noting family interactions as a common stressor to find that she should limit work-related interactions; though because these complaints seem 4 limited to family members and not other individuals, she appears to remain capable of at least some interaction with supervisors, coworkers, and the public. […] I find 5 some limitation on the complexity of tasks, the concentration demands required, and the stability of the workplace to be appropriate to avoid exacerbating anxiety 6 symptoms.

7 AR 28. 8 This interpretation of the medical evidence was supported by substantial evidence. Most 9 of the treatment notes reflecting more severe symptoms appeared to be related to difficult 10 interactions with Plaintiff’s family (see AR 476, 504, 892, 898, 900, 906, 916, 924, 992) and 11 only exacerbated by ancillary interactions with others. See AR 470. Moreover, the records 12 reflected her improved ability to handle such stressors (see AR 868, 894, 936, 984), supporting 13 the ALJ’s finding that she was capable of some social interaction. 14 Other exacerbators identified in the treatment notes included physical issues (see AR 488, 15 490, 492, 882, 926) but Plaintiff has not challenged the ALJ’s findings with respect to her 16 physical limitations, including his findings that her physical issues decreased in severity after 17 receiving surgery during the relevant period. See AR 23–24. 18 Finally, some notes identified her traveling, moving, or having to stay in novel 19 environments as exacerbating her symptoms (see AR 486, 488, 506), but the ALJ properly 20 included limitations in workplace changes to address such issues. Thus, the ALJ properly 21 considered the contrary evidence identified by Plaintiff. 22 The ALJ also properly found Plaintiff’s testimony inconsistent with evidence she was 23 able to leave her house more often during the relevant period. See AR 26 (citing AR 338, 341, 24 1 344, 353); Orn v. Astrue, 495, F.3d 623, 639 (9th Cir. 2007) (activities of daily living proper 2 basis for discounting testimony if inconsistent with testimony). And the ALJ properly considered 3 the fact that Plaintiff had considered looking for work during the relevant period but had only 4 been prevented from doing so due to her physical impairments (the assessment of which she does

5 not challenge). See AR 26, 347, 350; cf. Tomassetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 6 2008) (evidence Plaintiff not working for non-impairment related reasons valid consideration). 7 In sum, the ALJ provided specific, clear, and convincing reasons for rejecting Plaintiff’s 8 testimony about the severity of her mental symptoms.2 The Court need not consider the ALJ’s 9 remaining reasons for rejecting Plaintiff’s testimony, as any error with respect to those reasons 10 would be harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (An ALJ’s error 11 in discounting subjective testimony “is harmless so long as there remains substantial evidence 12 supporting the ALJ’s decision and the error ‘does not negate the validity of the ALJ’s ultimate 13 conclusion.’”). 14

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17 2 The ALJ found Plaintiff presented objective medical evidence of an underlying impairment which could reasonably be expected to produce her alleged symptoms although the ALJ questioned the “intensity, persistence, 18 and limiting effects” of these symptoms. AR 25. If such evidence is present and there is no evidence of malingering, the “specific, clear and convincing" standard applies. Ghanim, 763 F.3d at 1163. Here, however, the record may 19 reflect some affirmative evidence of malingering. See AR 1016 (Consultative Examination note: “She sometimes refused to try on challenging activities, though, and she seemed to give an uneven effort. The embedded validity 20 indicators included a WMS Rarely Missed Items (RMI) score of 219, which is an indication of good effort and cooperation, along with a Reliable Digit Span of 4, which points to likely malingering.”); AR 26. It is of no consequence that the ALJ did not make a particular finding of malingering. Rather, evidence suggesting malingering 21 is sufficient to vitiate the clear and convincing standard of review for subjective symptom testimony. See Schow v. Astrue, 272 Fed. App’x 647, 651 (9th Cir. 2006) (unpublished) (“[T]he weight of our cases hold that the mere 22 existence of ‘affirmative evidence suggesting malingering’ vitiates the clear and convincing standard of review.”); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 n.1 (9th Cir. 2008) (affirming Schow’s statement of 23 law). However, because the ALJ applied the higher legal standard by giving specific, clear, and convincing reasons for rejecting Plaintiff’s testimony, the Court need not determine whether the lower standard of review could have 24 been applied. 1 B. The Statement of Plaintiff’s Husband 2 Plaintiff’s husband submitted a statement describing some of her symptoms and 3 limitations. AR 268–74. Under Ninth Circuit precedent, an ALJ’s failure to provide germane 4 reasons for rejecting a lay witness statement is harmless where the statement is cumulative of

5 Plaintiff's subjective testimony, the ALJ provided proper reasons for rejecting that subjective 6 testimony, and those reasons apply to the lay witness statement. Molina, 674 F.3d at 1116–22. 7 Such is the case here. 8 Plaintiff’s husband’s statement describes no limitations beyond those described in 9 Plaintiff’s testimony—he described symptoms of anxiety, difficulty interacting with others, and 10 panic attacks. See AR 268–72. The ALJ properly discounted that testimony because it was 11 inconsistent with objective medical evidence and some of Plaintiff’s activities of daily living, 12 and that same reason applies to Plaintiff’s husband’s statement. The ALJ’s failure to discuss the 13 statement therefore does not require reversal. 14 C. DOT Conflict

15 Generally, where the VE “is qualified and presents cogent testimony that does not 16 conflict with other evidence in the record, the [VE’s] testimony” will constitute substantial 17 evidence. Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 2020). However, “if the expert’s opinion . 18 . . conflicts with, or seems to conflict with, the requirements in the [Dictionary of Occupational 19 Titles (DOT)], then the ALJ must ask the expert to reconcile the conflict before relying on the 20 expert to decide if the claimant is disabled.” Lemear v. Berryhill, 865 F.3d 1201, 1205–06 (9th 21 Cir. 2017) (quoting Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016)). To trigger the duty 22 of inquiry, the conflict must be “obvious or apparent.” Lemear, 865 F.3d at 1205–06. 23

24 1 Plaintiff contends the mental limitations in the RFC conflict with the DOT descriptions of 2 the three positions the ALJ relied upon at step five because all three positions require a Level 2 3 Reasoning. Dkt. 7 at 10–12. Level 2 Reasoning involves “apply[ing] commonsense 4 understanding to carry out detailed but uninvolved written or oral instructions” and “deal[ing]

5 with problems involving a few concrete variables in or from standardized situations.” DOT App. 6 C. It is more demanding than Level 1 (“simple one- or two-step instructions” and “standardized 7 situations with occasional or no variables”) and less demanding than Level 3 (instructions in 8 “written, oral, or diagrammatic form,” “several concrete variables”). See id. 9 The conflict between Level 2 Reasoning and the RFC must be more than a potential one. 10 Because DOT occupational descriptions “list[] ‘maximum requirements’ of the jobs as ‘generally 11 performed,’ . . . not all potential conflicts between an expert’s job suitability recommendation 12 and the [DOT’s] listing of ‘maximum requirements’ for an occupation will be apparent or 13 obvious.” Gutierrez, 844 F.3d at 807–08 (quoting SSR 00-4p,3 emphasis added). In Gutierrez, 14 for instance, the Ninth Circuit found no conflict between an occasional-overhead-reaching

15 limitation and a DOT description requiring frequent reaching because (1) “not every job that 16 involves reaching requires the ability to reach overhead” and (2) the position in question had no 17 requirements likely or foreseeably involving overhead reaching. 844 F.3d at 807–08. 18 Following Gutierrez, for there to be a conflict, Plaintiff must show either that (1) there is 19 a complete incompatibility between Level 2 Reasoning and the RFC, or (2) it is likely or 20 foreseeable that the specific functions of the positions identified would require mental abilities 21 beyond those included in the RFC. See id. Plaintiff has not argued any of the specific tasks 22 23 3 SSR 00-4p was rescinded by SSR 24-3p, but that ruling does not apply to decisions (like the one reviewed here) 24 rendered before January 6, 2025. 1 required by the positions identified at step five are inconsistent with the mental limitations in the 2 RFC. See Dkt. 7 at 10–11. Plaintiff’s argument therefore fails because there is no complete 3 incompatibility between Level 2 Reasoning and the RFC—that is, not every job involving Level 4 2 Reasoning would involve mental demands beyond those in the RFC.

5 There is no conflict between Level 2 and the VE’s testimony that the identified positions 6 involved only “short work instructions.” Although Level 2 Reasoning describes detailed—and 7 therefore longer—instructions, that is only the “maximum requirement” of Level 2 positions. See 8 Gutierrez, 844 F.3d at 807–08. Some Level 2 positions will require far less than “detailed” 9 instructions—they may require instructions only slightly longer than the one- to two-step 10 instructions of Level 1. DOT App. C. Thus, as the Ninth Circuit has noted in dictum, some Level 11 2 jobs “might involve only three tasks that are simple to explain,” and therefore are consistent 12 with short, simple instructions. Leach v. Kijakazi, 70 F.4th 1251, 1256–57 (9th Cir. 2023).4 13 Similarly, there is no conflict between Level 2 and the VE’s testimony that the identified 14 positions involved only “simple, routine, and repetitive work tasks” and “simple instructions.”

15 Level 2 tasks require “few concrete variables” (consistent with doing simple work) and involve 16 “standardized situations” (consistent with routine and repetitive work). Id. As the Eighth Circuit 17 recognized in analyzing this same issue, “involved” instructions are likely “complicated, 18 4 In support of her argument, Plaintiff cites (Dkt. 7 at 10) to Leach’s discussion of the Fourth Circuit’s decision in 19 Thomas v. Berryhill, 916 F.3d 307, 314 (4th Cir. 2019), which held there was a conflict between Level 2 Reasoning and a short instructions limitation. However, the Ninth Circuit did not go so far in Leach. See 70 F.4th at 1257 (“The 20 Fourth Circuit's holding in Thomas went beyond ours.”). The Fourth Circuit’s holding in Thomas is inconsistent with the Ninth Circuit’s approach to such issues. As discussed, under Ninth Circuit precedent, a potential conflict is insufficient. See Gutierrez, 844 F.3d at 807–08. As the Fourth Circuit acknowledged, at least some Level 2 positions 21 might involve short instructions. 916 F.3d at 314. But under Ninth Circuit precedent, this would mean there is no conflict between Level 2 reasoning and a short instructions limitation absent any additional showing. See Gutierrez, 22 844 F.3d at 808–09. Indeed, demonstrative of such an inconsistency, the Fourth Circuit found a conflict in Thomas because the conflict was “as apparent as the conflict [it] identified in” another Fourth Circuit case, Pearson , 23 810 F.3d 204, 210 (4th Cir. 2015). But in , the Fourth Circuit found there was a conflict between an occasional-overhead-reaching limitation and a frequent-reaching DOT description, id., a result contrary to the Ninth 24 Circuit’s conclusion in Gutierrez, 844 F.3d at 807–08. 1 intricate” ones, but the “uninvolved” instructions required by Level 2 Reasoning are likely to not 2 be so. Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010) (citing Webster’s Third New Int’l 3 Dictionary 1191, 2499 (2002)). Level 2 Reasoning contains no requirement that an individual 4 follow abstract, diagrammatic instructions, as Level 3 reasoning does. See DOT App. C. For that

5 reason, as the Ninth Circuit noted in Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2014), Level 6 2 Reasoning is consistent with a limitation to simple and routine tasks. 7 Finally, there is no conflict between Level 2 and the VE’s testimony that the identified 8 positions would be “performed in a routine and predictable work environment with few and only 9 simple workplace changes.” As the Ninth Circuit recognized in Stiffler v. O’Malley, reasoning 10 levels are revealing as to the situational variables in tasks that might be performed at a job, but a 11 limitation concerning the frequency of changes in a workplace environment “concerns broader 12 revisions to the workplace environment” which “are distinct from ‘situational variables’ in the 13 tasks being performed.” 102 F.4th 1102, 1109–10 (9th Cir. 2024). 14 In sum, at least some positions involving Level 2 Reasoning are likely to involve

15 functions consistent with the mental limitations in the RFC; there is no complete incompatibility 16 between the two. Because Plaintiff has not argued there are inconsistencies between the 17 particular functions of the positions identified at step five and the RFC, there is no demonstrated 18 conflict between Level 2 Reasoning and the VE’s testimony that Plaintiff could perform the 19 positions identified at step five. 20 // 21 // 22 // 23

24 1 IV. CONCLUSION 2 Based on these reasons and the relevant record, the Court ORDERS that this matter be 3 AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). 4

5 Dated this 25th day of June, 2025. 6 A 7 8 Grady J. Leupold United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24