1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON May 04, 2026 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 DOMINIC W., NO. 2:25-CV-0406-TOR 8 Plaintiff, ORDER AFFIRMING THE 9 v. COMMISSIONER’S DENIAL OF PLAINTIFF’S APPLICATION FOR 10 COMMISSIONER OF SOCIAL TITLE XVI BENEFITS SECURITY, 11 Defendant. 12
13 BEFORE THE COURT is Plaintiff’s Motion for Summary Judgment for 14 judicial review of Defendant’s denial of his application for Title XVI under the 15 Social Security Act (ECF No. 11). This matter was submitted for consideration 16 without oral argument. The Court has reviewed the record and files herein and is 17 fully informed. For the reasons discussed below, Plaintiff’s Motion for Summary 18 Judgment (ECF No. 11) is DENIED and Defendant’s denial of Plaintiff’s Title 19 XVI application under the Social Security Act is AFFIRMED. 20 1 STANDARD OF REVIEW 2 It is the administrative law judge’s (“ALJ”) job to “determine credibility,
3 resolve conflicts in the testimony, and resolve ambiguities in the record.” Lambert 4 v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (quoting Treichler v. Comm'r of Soc. 5 Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014)). The Court will affirm the
6 Commissioner’s decision to deny benefits unless it “is not supported by substantial 7 evidence or is based on legal error.” Lambert, 980 F.3d at 1277 (quoting 8 Treichler, 775 F.3d at 1098) (internal quotations omitted). It is important for the 9 ALJ to provide sufficient reasons for the court to review the basis of an
10 administrative order and to identify where in the record those reasons are reflected. 11 Id. 12 The court reviews the agency’s findings to determine whether they are
13 supported with substantial evidence. Biestek v. Berryhill, 587 U.S. 97, 99 (2019); 14 42 U.S.C. § 405(g). In this context, the threshold is not high. Biestek, 587 U.S. at 15 103. Substantial evidence is present when there is “more than a mere scintilla.” 16 Biestek, 587 U.S. at 103 (quoting Consol. Edison Co. of New York v. N.L.R.B., 305
17 U.S. 197, 229 (1938)). In other words, “such relevant evidence as a reasonable 18 mind might accept as adequate to support a conclusion.” Biestek, 587 U.S. at 103 19 (quoting N.L.R.B., 305 U.S. at 229).
20 1 The Court will not reverse for errors that are harmless. Molina v. Astrue, 2 674 F.3d 1104, 1117 (9th Cir. 2012). An error is harmless if it is “inconsequential
3 to the ultimate nondisability determination.” Molina, 674 F.3d at 1115 (quoting 4 Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). To 5 effectuate this, the Court reviews the record as a whole to determine whether the
6 error altered the result of the case. Molina, 674 F.3d at 1115. 7 FIVE STEP SEQUENTIAL EVALUATION PROCESS 8 The Commissioner uses a five-step sequential process to decide whether a 9 claimant is considered disabled. 20 C.F.R. § 416.920(a)(1). The Commissioner
10 considers all evidence in the record to make this determination. 20 C.F.R. § 11 416.920(a)(3). Disability is defined “as the inability to do any substantial gainful 12 activity by reason of any medically determinable physical or mental impairment
13 which can be expected to result in death or which has lasted or can be expected to 14 last for a continuous period of not less than 12 months.” 20 C.F.R. § 416.905(a). 15 This requires a severe impairment that makes the claimant unable to complete the 16 claimant’s past relevant work or any other substantial gainful work. 20 C.F.R. §
17 416.905(a). 18 At each step, the Commissioner may find a claimant either not disabled or 19 disabled. 20 C.F.R. § 416.920(a)(4). If the claimant is found disabled, then the
20 process stops and the determination is made. 20 C.F.R. § 416.920(a)(4). 1 However, during step three and four, the Commissioner assesses residual function 2 capacity (“RFC”). Id. Then, during steps four and five, the Commissioner
3 evaluates the claimant’s claim. Id. 4 At step one, the Commissioner considers the claimant’s work activity and if 5 the Commissioner decides that the claimant is engaging in substantial gainful
6 activity, then the Commissioner will find the claimant is not disabled. 20 C.F.R. § 7 416.920(a)(4)(i). Substantial gainful activity is both substantial and gainful work 8 activity. 20 C.F.R. § 416.972. Substantial work activity means “doing significant 9 physical or mental activities” and may be done on a part-time basis, with less pay,
10 or less responsibility than before. 20 C.F.R. § 416.972(a). Gainful work activity is 11 work done for pay or profit even if the profit is not realized. 20 C.F.R. § 12 416.972(b). Put together, “[s]ubstantial gainful activity means work that—(a)
13 [i]nvolves doing significant and productive physical or mental duties; and (b) [i]s 14 done (or intended) for pay or profit.” 20 C.F.R. § 416.910. 15 At step two, the Commissioner considers the claimant’s medical severity of 16 the claimant’s impairment(s). 20 C.F.R. § 416.920(a)(4)(ii). If the claimant does
17 not have either a physical or mental impairment that is severely medically 18 determinable, or a combination of impairments satisfying the requirements the 19 Commissioner will deem the claimant as not disabled. 20 C.F.R. §
20 416.920(a)(4)(ii). 1 At step three, the Commissioner continues to consider the claimant’s 2 medical severity of claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(iii). If the
3 claimant falls under one of the listings in appendix 1, fulfills this subpart, and the 4 durational requirement, then the Commissioner will determine the claimant as 5 disabled. 20 C.F.R. § 416.920(a)(4)(iii).
6 At step four, the Commissioner shifts to address the claimant’s RFC and 7 work experience to see whether the claimant can make an adjustment to other 8 work. 20 C.F.R. § 416.920(a)(4)(iv). If the Commissioner decides that the 9 claimant can still complete past relevant work, then the Commissioner rules the
10 claimant as not disabled. 20 C.F.R. § 416.920(a)(4)(iv). 11 At step five, the Commissioner continues to review the claimant’s residual 12 functional capacity with the claimant’s age, education, and work experience to
13 settle on any possible adjustments to other work. 20 C.F.R. § 416.920(a)(4)(v). If 14 this is possible, then the Commissioner will rule that the claimant is not disabled. 15 However, if the Commissioner establishes the opposite, then the claimant is 16 deemed as disabled. 20 C.F.R. § 416.920(a)(4)(v).
17 Once a claimant proves that: “(1) that she is not presently engaged in a 18 substantial gainful activity; (2) that her disability is severe, and (3) that her 19 impairment meets or equals one of the specific impairments described in the
20 regulations”, then the claimant must be found disabled. Hoopai v. Astrue, 499 1 F.3d 1071, 1074 (9th Cir. 2007) (quoting Thomas v. Barnhart, 278 F.3d 947, 955 2 (9th Cir. 2002)). However, if the stated impairment does not meet the requirement
3 listed in the regulations, the claimant may “still establish a prima facie case of 4 disability by proving at step four that ‘in addition to the first two requirements, ... 5 she is not able to perform any work that she has done in the past.’” Hoopai, 499
6 F.3d at 1074 (quoting Thomas, 278 F.3d at 955). After the claimant establishes his 7 or her prima facie case at step five, the burden shifts to the agency to prove that 8 “the claimant can perform a significant number of other jobs in the national 9 economy.” Hoopai, 499 F.3d at 1074–75 (quoting Thomas, 278 F.3d at 955).
10 ALJ FINDINGS 11 Plaintiff applied for Title XVI benefits in December of 2021 for an alleged 12 onset for the date amended to the date of the application. ECF No. 13 at 2; Tr. 17,
13 53. The Appeals Council denied review of Plaintiff’s case. Tr. 1. 14 At step one, the ALJ stated Plaintiff had not engaged in substantial gainful 15 activity since the application date, December 8, 2021. Tr. 20, 53. Plaintiff was 16 determined to have the following severe impairments: obesity, diabetes, lumbar
17 degenerative disc disease, depressive disorder, attention deficit hyperactivity 18 disorder (ADHD), and a learning disorder. Id. However, these impairments or a 19 combination of these impairments was not deemed to meet the severity of the ones
20 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 21. Additionally, 1 Plaintiff’s severity of mental impairments considered singly or in combination with 2 physical impairments did not meet the required criteria. Tr. 22. Also, the ALJ
3 considered Paragraph B criteria, but it was not satisfied because Plaintiff did not 4 have either two marked limitations or one extreme limitation. Tr. 23. The 5 evidence failed to establish a presence of Paragraph C criteria. Id.
6 The ALJ found opinions of Brenda Proco-Smith, FNP, and Linda Wolcott, 7 Ph.D., as persuasive. Tr. 26-28. However, the ALJ did not find Julie McKown, 8 PMHNP’s opinion to be persuasive. Tr. 27. 9 The ALJ noted that Proco-Smith reviewed clinic notes, an adult function
10 report, imaging studies and conducted her own evaluation. Tr. 26. Proco-Smith 11 found that Plaintiff “had lumbar degeneration with radiculopathy, diabetes, 12 hypertension, and obesity.” Id. After a detailed analysis, she determined that
13 Plaintiff “was limited to a range of heavy work with standing/walking limited to 14 six hours, sitting limited to eight hours, and without additional significant 15 restrictions.” Tr. 26. Additionally, Plaintiff “had some pain on palpation of the 16 shoulders, left knee, thoracic, and lumbar spine, positive straight-leg raise testing,
17 and reduced lumbar extension and flexion, but had no other abnormalities.” Id. 18 The ALJ found her opinion consistent with the record showing normal gait, 19 sensation and range of motion. Tr. 25-26. The ALJ recognized that Proco-Smith’s
20 mentioned abnormalities are consistent with limitations in exertion, postural 1 activities, and exposure to hazards. Tr. 27. 2 Wolcott completed an in-depth psychological evaluation including a clinical
3 interview, review of records and testing. Tr. 27. Plaintiff “had diagnoses of 4 ADHD, learning disorders in math and written expression, and persistent 5 depressive disorder.” Id. She found Plaintiff had a good mental health prognosis
6 and noted Plaintiff’s reluctance to take ADHD medication would likely improve 7 his skills in writing and math. Id. Also, Wolcott found Plaintiff “moderately 8 impaired in concentration and persistence, without impairment in interacting with 9 others, and mild impairment in completing normal work periods without
10 psychological disruption, dealing with usual stresses (if it involved math or heavy 11 physical activity).” Tr. 26-27. 12 At step four, the ALJ found that Plaintiff’s RFC included the ability to
13 perform a full range of medium work except: 14 he cannot climb ladders, ropes, or scaffolds; he can frequently balance, stoop, kneel, crouch, crawl and climb ramps and stairs,; he cannot have 15 concentrated exposure to vibration, pulmonary irritants, o hazards (e.g., unprotected heights, moving mechanical parts); he is limited to tasks 16 involving no more than simple mathematical calculations consistent with a GED math level of two or less; and he can sustain attention and 17 concentration on work-related tasks for two hours at a time.
18 Tr. 23. At step five, after consideration of Plaintiff’s age, education, work 19 experience, and RFC, the ALJ determined that there were jobs in significant 20 numbers in the national economy that were sufficient for Plaintiff. Tr. 29. These 1 jobs included a representative medium, SVP 2, and unskilled occupations such as 2 hand packager, and kitchen helper. Tr. 29.
3 ISSUES 4 Plaintiff identifies four issues with the ALJ’s decision. ECF No. 11 at 2. 5 Plaintiff requests for immediate benefits or in the alternative, remand for the ALJ
6 to address and evaluate the comments of Dr. Woolever. ECF No. 11 at 2, 8. 7 I. Whether the ALJ failed to properly admit and consider the detailed statements of impairment from treating provider, Dr. Woolever. 8 II. Whether the ALJ properly evaluated the medical opinions. 9 III. Whether the ALJ properly evaluated Plaintiff’s impairments and 10 symptom testimony.
11 IV. Whether the ALJ properly assessed Plaintiff’s RFC and met his burden at step five. 12
13 ECF No. 11 at 2.
14 DISCUSSION 15 I. The ALJ properly rejected the detailed statements of impairment 16 from treating provider, Dr. Woolever. 17 A. The ALJ’s Decision 18 Plaintiff argues that the ALJ erred by not allowing Dr. Woolever to provide an 19 updated statement. ECF No. 11 at 7. Dr. Woolever was reluctant to comment 20 without seeing Plaintiff again. Id. Plaintiff states the ALJ acknowledged that the 1 request was timely and failed to recognize that the delay was due to unusual, 2 unexpected, or unavoidable circumstances as provided under 20 C.F.R. §
3 416.1435(b)(3). ECF No. 11 at 7. 4 20 C.F.R. § 416.1435 provides the guidelines for submitting written evidence to 5 the ALJ. Section 416.1435(b) allows a claimant to provide information before the
6 decision is issued without previously informing the ALJ under specific 7 circumstances. One of these circumstances includes “[s]ome other unusual, 8 unexpected, or unavoidable circumstance beyond [claimant’s] control prevented 9 [claimant] from informing [the ALJ] about or submitting the evidence earlier.” 20
10 C.F.R. § 416.1435(b)(3). Examples are listed under the subsection. § 11 416.1435(b)(3)(i)-(iv). 12 The ALJ declined to delay the case further by waiting for submission from Dr.
13 Woolever. Tr. 17-18. The ALJ noted that the notice was timely but it did not 14 adhere to the requirements set out under SSR 17-4p. Id. The ALJ stated that “it 15 did not identify the relevance of the evidence or its location, nor indeed did it even 16 identify existing evidence, but rather ongoing efforts to create evidence.” Id. The
17 ALJ noted that there was no appointment set until a week after the hearing. Id. 18 The ALJ addressed Plaintiff’s argument that it falls under 20 C.F.R. § 19 416.1435(b)(3) but the ALJ disagreed. Tr. 17. The ALJ stated that Plaintiff
20 reached out to Dr. Woolever less than six weeks before the hearing. Id. 1 Additionally, Plaintiff had multiple appointments with Dr. Woolever where this 2 information could have been requested or retrieved, however, Plaintiff failed to do
3 so. Tr. 18. A doctor denying a meeting with an individual before completing 4 paperwork is not unusual or unexpected especially considering a waiting period is 5 expected between the scheduling of an appointment and the appointment itself. Id.
6 Finally, the ALJ notes that the decision was issued ten days after the alleged 7 September 19 appointment and Plaintiff still had not submitted any statement from 8 Dr. Woolever. Id. 9 Plaintiff attempts to argue that Dr. Woolever’s statement should be considered
10 and argues that it falls under 20 C.F.R § 416.1435(b)(3) but fails to address the 11 ALJ’s other reasons for denial. Also, Plaintiff fails to cite authority to support his 12 contention that it should fall under § 416.1435(b)(3). Not that it is dispositive, but
13 Plaintiff did not allege under one of the provided reasons in the statute. 20 C.F.R. 14 § 416.1435(b)(3)(i)-(iii). The ALJ explained that Plaintiff’s reason was not 15 unexplained, unexpected, or unavoidable. Tr. 17-18. The doctor’s denial was 16 reasonable and typical. Tr. 17-18.
17 Even more, Dr. Woolever’s statements were not provided before the decision 18 was issued. Tr. 18. Plaintiff responds that the statements were not seen until after 19 the ALJ’s decision. ECF No. 11 at 8. However, this reason also does not meet the
20 criteria for unexpected, unexplained or unavoidable. Nevertheless, the ALJ’s 1 decision is sufficient. The Court will not interrupt the ALJ’s reasonable 2 interpretation and decision supported with sufficient explanations. Burch v.
3 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 Additionally, Defendant and the ALJ properly stated that Plaintiff did not meet 5 the requirements under SR 17-4p. Tr. 17; ECF No. 13 at 4. SSR 17-4p provides
6 the requirements for Plaintiff to provide written evidence. SSR 17-4P, 2017 WL 7 4736894 (Oct. 4, 2017). The ruling states that the claimant shall “provide 8 information specific enough to identify the evidence (source, location, and dates of 9 treatment) and show that the evidence relates to the individual's medical condition,
10 work activity, job history, medical treatment, or other issues relevant to whether or 11 not the individual is disabled or blind.” SSR 17-4P, 2017 WL 4736894 (Oct. 4, 12 2017). It furthers that if this is not provided with enough specificity to clearly
13 identify the evidence and recognize its relevance to determine the claimant is 14 disabled then the claimant did not meet the requirements of the applicable 15 regulation, and the evidence will not be requested. SSR 17-4P, 2017 WL 4736894 16 (Oct. 4, 2017). Plaintiff did not provide information about what Dr. Woolever’s
17 statements would suggest or its relevance. This failure is sufficient to not accept 18 Dr. Woolever’s later statement. Moreover, “[w]here evidence is susceptible to 19 more than one rational interpretation, it is the ALJ's conclusion that must be
20 upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Accordingly, 1 Plaintiff did not identify any harmful error on the ALJ’s behalf. 2 B. The Appeals Council’s New Evidence
3 Dr. Woolever’s statements were sent to the Appeals Council and became a part 4 of the administrative record. ECF No. 11 at 3; Tr. 36-48. It appears Plaintiff 5 argues this statement is admitted or should be considered. ECF No. 11 at 18.
6 Plaintiff argues that Dr. Woolever’s evidence is consistent with the record and uses 7 Plaintiff’s mother’s comments and Dr. Julie McKown’s statement as support. ECF 8 No. 11 at 8-9. Plaintiff alleges that the ALJ failed to consider the evidence in a 9 longitudinal manner. ECF No. 11 at 8-9.
10 The ALJ’s decision is the final decision of the Commissioner when the Appeals 11 Council denies review. Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 12 1161–62 (9th Cir. 2012). Moreover, “when the Appeals Council considers new
13 evidence in deciding whether to review a decision of the ALJ, that evidence 14 becomes part of the administrative record, which the district court must consider 15 when reviewing the Commissioner's final decision for substantial evidence.” 16 Brewes, 682 F.3d at 1163.
17 The Appeals Council denied review and did not find that Plaintiff’s Columbia 18 County Health System records from September 17, 2024, displayed a reasonable 19 probability that it would change the outcome of the decision. Tr. 2. As a result,
20 the Appeals Council did not exhibit the evidence. Tr. 2. 1 The Columbia County Health System Record and statements from Dr. 2 Woolever consistent from a visit on September 17, 2024. Tr. 47. Dr. Woolever
3 noted problems including seizures, neck pain, back pain, diabetes, dysphagia, 4 developmental delay, moderate, depression, costochondritis, hypertension, 5 herniation of lumbar intervertebral disc with radiculopathy, elevated liver enzymes
6 and mixed hyperlipidemia. Tr. 40-41. It appears that these are noted due partly to 7 the examination and partly from Plaintiff’s history. Tr. 38-39. During 8 examination, Dr. Woolever noted generally normal results. Tr. 39. Dr. Woolever 9 noted decreased range of motion with lumbar spine due to pain. Tr. 39.
10 The statements from Dr. Woolever provided history, notes, and limitations. Tr. 11 47. Dr. Woolever notes Plaintiff’s 2022 MRI scans showing a bulged disc. Id. 12 Dr. Woolever noted Plaintiff’s lumbar condition and that his obesity has been
13 “marginally successful” but still struggled with this condition. Tr. 47. In 14 December of 2021, Dr. Woolever considered Plaintiff’s limitations in standing, 15 sitting and walking. Id. Dr. Woolever estimated that he was limited to sitting 16 about 15-20 minutes at time and standing and walking to two hours per day. Tr.
17 47. However, Dr. Woolever continues that if asked them, she would have added 18 that Plaintiff’s sitting tolerance would be limited to four hours per day. Id. Also, 19 Plaintiff’s standing and walking would be limited to four hours at a time. Id.
20 Moreover, Dr. Woolever stated that these limitations “are likely to have been 1 present for at least 2-3 months.” Tr. 47. 2 Plaintiff argues that Dr. Woolever’s statements are consistent and supported
3 with the record and references of Julie McKown PMHNP’s visit from February 4 2023. Tr. 27. However, the ALJ did not find her opinion persuasive because it 5 was poorly supported and inconsistent with the record. Id. The ALJ found that
6 McKown’s conclusion that Plaintiff could not “manage funds, understand, 7 remember, or carry out simple or complex instructions, sustain concentration and 8 persistence at a reasonable pace, or interact with others or adapt to usual workplace 9 stresses” was inconsistent with McKown’s assessment of cooperation,
10 unremarkable findings, and Plaintiff’s reports of able to care for himself and 11 appropriately dressed and groomed. Tr. 27. Moreover, the ALJ noted that 12 McKown’s failure to demonstrate that Plaintiff could perform any mental task is
13 contradictory to Plaintiff’s record of minimal mental health treatment, normal 14 mental status exams and inconsistent symptom allegations. Id. 15 McKown’s visit exhibited generally unremarkable notes regarding his 16 appearance, affect, mood, behavior, and only some distractions for concentration.
17 Tr. 594. The report demonstrates mental tests that Plaintiff appeared to complete. 18 Tr. 594-95. However, McKown then reported Plaintiff could not understand, 19 remember, or carry out simple instructions, manage funds, sustain concentration in
20 a workplace, etc. Tr. 596. 1 While Plaintiff does not directly take issue with McKown’s 2023 visit as being 2 unpersuasive, the ALJ’s determination is reasonable. Therefore, Plaintiff’s
3 assertion of consistency and supportability of Dr. Woolever’s statements to one 4 provider’s opinion does not negate the other evidence provided by the ALJ. Even 5 more, as discussed, this provider’s opinion was found to be unpersuasive. Tr. 27.
6 Plaintiff did not identify any legal error in the ALJ’s analysis or exhibit that the 7 ALJ failed to provide sufficient evidence regardless of Dr. Woolever’s statements. 8 C. Lay Testimony 9 Plaintiff alleges that Dr. Woolever’s statements are consistent and supported
10 and that Plaintiff’s mother’s statements are consistent and show marked 11 impairments. ECF No. 11 at 8-9. Plaintiff furthers that Dr. Woolever’s statements 12 are supported by Plaintiff’s mother’s statements that Plaintiff rarely cooks meals,
13 forgets to finish laundry, needs constant reminders and does not finish or start 14 tasks. Tr. 310. Additionally, Plaintiff must be reminded to bathe and change his 15 clothes. Tr. 308. The citations and remarks refer to statements by Plaintiff’s 16 mother on his disability function report. Tr. 264, 308-10. Plaintiff uses his
17 mother’s statements that he is “doing worse” as support. ECF No. 11 at 11. 18 Plaintiff reported he relies on his girlfriend and mother to remind him of things 19 and references the issues of task completion, concentration and attention span from
20 the function report. Tr. 22. However, the record shows he drives, makes his own 1 meals, attends to his own personal care, plays games, forges knives, practices 2 martial arts, lifts heavy objects and engages in blacksmithing. Tr. 25-26, 355. The
3 ALJ found that Plaintiff did not show concentration issues during most of his 4 office visits and that during his consultative exam, his concentration was fair. Tr. 5 22. Additionally, the ALJ continues that in a 2023 exam, Plaintiff could not
6 complete serial 2s, 7s, or reverse word spelling. Tr. 23. Nevertheless, he scored in 7 the low average range for concentration and average range for attention. Id. None 8 of this contradicts the ALJ’s interpretation or disrupts the ALJ’s substantial 9 evidence to prove that Plaintiff’s limitations should be considered marked. The
10 ALJ provided sufficient evidence that his limitations are mild and moderate not 11 marked or extreme. Again, when there are two rational interpretations, the ALJ’s 12 decision must be upheld. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).
13 Moreover, as will be discussed further, Dr. Woolever’s statements do not 14 change that the ALJ’s decision was supported with substantial evidence in its 15 disability determination and denial of Dr. Woolever’s statements. The ALJ 16 considered many of Dr. Woolever’s reported ailments for Plaintiff stating either
17 the record fails to support the impairment, the impairment does not represent any 18 limitations, or the impairment is treated with medication. Tr. 21, 428, 3142, 2023, 19 3136. And as the Ninth Circuit held, the district court “must uphold the ALJ's
20 decision where the evidence is susceptible to more than one rational 1 interpretation.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Dr. 2 Woolever’s statements do not undermine the ALJ’s decision. ASARCO, Inc. v.
3 Occupational Safety & Health Admin., 746 F.2d 483, 490 (9th Cir. 1984) (“[T]he 4 possibility of drawing two inconsistent conclusions from the evidence does not 5 prevent an administrative agency's finding from being supported by substantial
6 evidence.”). Even more, the ALJ properly denied Dr. Woolever’s statements. 7 Accordingly, Plaintiff does not identify any harmful error that warrants remand. 8 II. The ALJ properly evaluated the medical opinions. 9 Next, Plaintiff argues that the ALJ failed to adhere to the appropriate medical
10 opinion regulations and considerations. ECF No. 11 at 8-12. Plaintiff furthers that 11 the ALJ did not appropriately consider all the opinions with the appropriate factors. 12 ECF No. 11 at 10-12. Moreover, Plaintiff appears to contend that the evidence
13 contradicts the ALJ’s determination of some medical opinions but fails to provide 14 sufficient reasons for his evaluation. ECF No. 11 at 11. 15 Under 20 C.F.R. §§ 404.1520c and 416.920c, the ALJ’s guidelines for how to 16 consider and articulate medical opinions and prior administrative medical findings
17 are laid out. With these regulations, the ALJ is not required to provide “‘specific 18 and legitimate reasons’ for rejecting a treating or examining doctor's opinion.” 19 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (citations omitted).
20 1 The new regulations focus on supportability and consistency when evaluating 2 the persuasiveness of an opinion. Woods, 32 F.4th at 791. Supportability “means
3 the extent to which a medical source supports the medical opinion by explaining 4 the ‘relevant ... objective medical evidence.’” Woods, 32 F.4th at 791-92 (quoting 5 20 C.F.R. § 404.1520c(c)(1)).1 On the other hand, “consistency means the extent
6 to which a medical opinion is ‘consistent ... with the evidence from other medical 7 sources and nonmedical sources in the claim.’” Woods, 32 F.4th at 792 (quoting 8 20 C.F.R. § 404.1520c(c)(2)). Essentially, the ALJ must explain the 9 persuasiveness of all the medical opinions from each physician or other necessary
10 source. Woods, 32 F.4th at 792. Additionally, “an ALJ cannot reject an examining 11 or treating doctor's opinion as unsupported or inconsistent without providing an 12 explanation supported by substantial evidence.” Woods, 32 F.4th at 792.
13 Plaintiff states that the ALJ erred by failing to provide reasons for why Vincent 14 G. Ph.D.’s and Renee E, Ph.D.’s opinions were consistent. ECF No. 11 at 10-11. 15 However, Defendant and the Court cannot determine who Plaintiff is referring to. 16 ECF No. 13 at 8-9. Plaintiff fails to cite the record and there are no providers with
17 either of those names. Plaintiff did not sufficiently argue this issue with any 18 specificity and the Court cannot decipher Plaintiff’s argument. Carmickle v. 19
20 1 20 C.F.R. § 404.1520c is identical to 20 C.F.R. § 416.920c referring to Title XVI. 1 Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2. (9th Cir. 2008) (failed to 2 address a finding because Plaintiff failed to provide any specificity to effectively
3 argue an issue). For those reasons, this argument fails because the Court cannot 4 determine Plaintiff’s argument. Moreover, Plaintiff does not identify any issues 5 with the other medical opinions provided by Wolcott and Proco-Smith.
6 III. The ALJ properly evaluated Plaintiff’s impairments and symptom 7 testimony. 8 Plaintiff alleges that the ALJ improperly discounted Plaintiff’s testimony. ECF 9 No. 11 at 16-17.
10 “‘The credibility determination is exclusively the ALJ's to make,’ and ‘[w]e 11 are constrained to review the reasons the ALJ asserts.’” Lambert v. Saul, 980 F.3d 12 1266, 1278 (9th Cir. 2020) (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494
13 (9th Cir. 2015)) (quotations and emphasis omitted). When the ALJ determines the 14 credibility of a claimant’s subjective testimony, the ALJ uses a two-step process. 15 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The first step requires the 16 ALJ to “determine whether the claimant has presented objective medical evidence
17 of an underlying impairment which could reasonably be expected to produce the 18 pain or other symptoms alleged.” Vasquez, 572 F.3d at 591 (quoting Lingenfelter 19 v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). The claimant only needs to
20 “show that it could reasonably have caused some degree of the symptom.” 1 Vasquez, 572 F.3d at 591 (quoting Lingenfelter, 504 F.3d at 1035–36). 2 The second step states when the ALJ “determines that a claimant for Social
3 Security benefits is not malingering and has provided objective medical evidence 4 of an underlying impairment which might reasonably produce the pain or other 5 symptoms she alleges, the ALJ may reject the claimant's testimony about the
6 severity of those symptoms. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) 7 (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015)) (citations 8 omitted). The rejection of claimant’s testimony about the severity of symptoms 9 requires the ALJ to provide “specific, clear, and convincing reasons for doing so.”
10 Lambert, 980 F.3d at 1277 (quoting Brown-Hunter, 806 F.3d at 488–89) (citations 11 omitted). Pursuant to this, the ALJ must “specifically identify the testimony [from 12 a claimant] she or he finds not to be credible and ... explain what evidence
13 undermines that testimony.” Lambert, 980 F.3d at 1277 (quoting Treichler v. 14 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)) (citations 15 omitted). 16 Two factors that can be considered when weighing a claimant’s testimony
17 include “unexplained or inadequately explained failure to seek treatment or to 18 follow a prescribed course of treatment; and (3) the claimant's daily activities.” 19 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v.
20 Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)). Additionally, “[c]ontradiction with 1 the medical record is a sufficient basis for rejecting the claimant's subjective 2 testimony.” Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir.
3 2008). 4 Plaintiff argues that the ALJ’s reliance on Plaintiff’s daily activities was 5 improper. ECF No. 11 at 16-17. Plaintiff claims that the Ninth Circuit warns
6 against the use of daily activities and it must consume a large portion of their day. 7 Tr. 16-17. Plaintiff states that the activities the ALJ examined do not fit this 8 standard or indicate any transferability to a work requirement. Tr. 17. 9 As previously stated, the ALJ provided many activities that Plaintiff engages in
10 to suggest that the Plaintiff’s “level of activity is not indicative of the level of 11 limitation alleged.” Tr. 25. The ALJ used these activities to contradict some of 12 Plaintiff’s statements. For example, Plaintiff asserted that he relies on his
13 girlfriend and mother, but the activities show that the Plaintiff can complete 14 household chores, personal maintenance, and driving on his own. Tr. 352-57. 15 Moreover, while not explicitly stated by the ALJ, the ability to engage in specific 16 activities such as blacksmithing, forging knives, and lifting weights can be
17 translated to job or work activities. Tr. 25-26, 355. 18 Nevertheless, even without considering this evidence of daily activities, the 19 ALJ provided other sufficient reasons to discredit Plaintiff’s testimony. Tr. 25-26.
20 For example, the ALJ recognized that Plaintiff engaged in normal and routine 1 examinations and treatment rather than considering specialized treatment. Tr. 25. 2 Also, the ALJ established that Plaintiff had a history of noncompliance with
3 treatment. Tr. 26. For example, Plaintiff was unwilling to try medications 4 including metformin for his diabetes, refused referrals to behavioral mental health 5 treatment including a psychiatric evaluation for alleged hallucinations. Tr. 26, 433,
6 439, 661, 67, 3211, 3238, 3364, 197. Plaintiff refused to take any medication for 7 his ADHD or continue compliance with his CPAP despite effectiveness. Tr. 26, 8 870, 886, 2047. These are sufficient reasons to discredit subjective testimony, and 9 Plaintiff does not take issue with this part of the ALJ’s analysis. See Tommasetti v.
10 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 11 Also, Plaintiff refers to testimonies from Jeffrey’s family to show that his 12 impairments are more severe and limiting as Plaintiff suggests. ECF No. 11 at 11-
13 12. However, when Plaintiff does refer to the record, it does not represent what 14 Plaintiff alleges. For example, Plaintiff cites the record referring to Jeffrey’s 15 mother’s statements, but the citation refers to an appeals disability report. ECF No 16 11 at 11; Tr. 299. Moreover, it is unclear where in the record Jeffrey’s family
17 provides statements, their relevance to Plaintiff’s case, or who Jeffrey is. The 18 same argument goes regarding citations to Plaintiff’s alleged concentration and 19 focus. ECF No. 11 at 11. The citations do not reference the alleged content but
20 instead privacy statements and after visit care instructions regarding a low-salt diet 1 and cardiovascular health. Tr. 335, 347, 405. For those reasons, the Court will not 2 consider these citations or arguments further.
3 The ALJ considered the record as a whole including medical evidence, 4 opinions, vocational expert testimonies, etc. Tr. 17-30. For example, the ALJ 5 provided sufficient clear and convincing reasons for Wolcott and Porco-Smith’s
6 opinions that are consistent with the ALJ’s determination and the record. Tr. 26- 7 29. Therefore, this argument fails. 8 IV. The ALJ properly assessed Plaintiff’s RFC and the ALJ met his 9 burden at step five.
10 In this section, Plaintiff fails to provide citations to the record. ECF No. 11 at 11 12-13. Again, Plaintiff’s lack of citations exhibits Plaintiff’s failure to argue with 12 specificity. The Court attempted to address Plaintiff’s arguments but will not
13 further consider arguments or manufacture arguments that are not argued with 14 specificity. Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th 15 Cir. 2003) (“[W]e cannot “manufacture arguments for an appellant” and therefore 16 we will not consider any claims that were not actually argued in appellant's
17 opening brief.”). Moreover, “[a]rguments made in passing and not supported by 18 citations to the record or to case authority are generally deemed waived.” Badgley 19 v. United States, 957 F.3d 969, 979 (9th Cir. 2020).
20 1 A. Dr. Woolever’s Statements & Vocational Expert Testimony 2 Plaintiff argues that the ALJ erred because they did not provide limitations
3 provided by Dr. Woolever in the hypothetical questions. ECF No. 11 at 14-16. 4 However, as previously discussed, the ALJ did not err in failing to consider Dr. 5 Woolever’s statement. Even more, Plaintiff argues that Dr. Woolever’s statements
6 of abstentionism and need for excessive rest periods and sedentary exertion would 7 preclude all work. ECF No. 11 at 15. However, the ALJ provided sufficient 8 evidence that Plaintiff’s limitations are not as severe as alleged and incorporated 9 any limitations into Plaintiff’s RFC. Tr. 25-26. Again, Dr. Woolever’s opinion on
10 limitations does not alone contradict the ALJ’s analysis of the record showing 11 many unremarkable exams and medical opinions supporting the same. Tr. 25-28. 12 Therefore, this argument fails for multiple reasons.
13 B. Sufficient Evidence 14 Next, Plaintiff takes issue with the label “objective findings” and states that the 15 medical opinions do not support that Plaintiff can be accommodated with simple 16 repetitive work. ECF No. 11 at 12. Plaintiff states that the ALJ failed to support
17 his claim that the clinical findings and Plaintiff’s performance at appointments do 18 not warrant more restrictive limitations. ECF No. 11 at 12. 19 The ALJ provides sufficient support and evidence under the objective findings
20 section to demonstrate that Plaintiff’s limitations are appropriately exhibited in the 1 RFC. Under the header “objective record”, the ALJ states that “[t]he objective 2 record does not support the level of limitation alleged.” Tr. 25. The ALJ states
3 that the record shows some evidence of back abnormalities, but that Plaintiff’s 4 examinations are typically normal. Tr. 25. Continuing, Plaintiff exhibits normal 5 gait, range of motion, sensation and these findings are inconsistent with Plaintiff’s
6 “extreme allegations” particularly regarding his ability to walk and lift. Tr. 25, 7 549-52, 582, 686-89, 860, 919, 2022, 3037. Pertaining to mental functioning, 8 Plaintiff’s record demonstrates “largely normal findings.” Tr. 25. The ALJ 9 conducted a detailed analysis with numerous references to the record for each type
10 of mental functioning ability showing only moderate or mild limitations. Tr. 22- 11 23. Therefore, Plaintiff fails to identify any error. 12 D. Medical Tests
13 Plaintiff asserts that the record including the MRI results and standing leg 14 test show positive results of impairments that the ALJ wrongly disregarded. ECF 15 No. 11 at 13. 16 The ALJ stated that the state agency medical consultants found that Plaintiff
17 could perform a range of medium work with postural activities generally limited to 18 frequent. Tr. 28. The ALJ found this consistent with the record of generally 19 normal findings of gait, station, strength, and minor limitations in range, straight-
20 leg-raise testing and tenderness. Tr. 28. Plaintiff does not cite the record. 1 After reviewing the record, there appears to be one MRI of Plaintiff’s brain 2 and one MRI of Plaintiff’s back. Tr. 812-13. The brain MRI provided normal
3 results. Tr. 812-13, 46, 581, 681. Dr. Woolever’s report refers to an MRI “done 4 some time ago confirmed some bulging discs with arthritic changes in the facets.” 5 Tr. 46. In some records, an MRI is referenced stating L5 bulging disc and neural
6 foraminal narrowing. Tr. 581, 681. Exercises instead of surgery were 7 recommended. Tr. 681. However, the ALJ does not argue how this medical test 8 shows legal error or proves a more severe limitation. Accordingly, with the ALJ’s 9 other evidence and the failure to identify facts or citations for this MRI, the Court
10 will not consider it further. 11 Plaintiff alleges that the ALJ failed to acknowledge a straight raising leg test 12 that was positive confirming radiculopathy. ECF No. 11 at 13. However, again,
13 Plaintiff fails to cite anywhere in the record. Id. The ALJ provided multiple 14 citations for his decision exhibiting sufficient evidence for his determination. One 15 test without a specified limitation does not represent harmful error of many 16 examples of lesser limitations. Moreover, “[i]f the ALJ's credibility finding is
17 supported by substantial evidence in the record, we may not engage in second- 18 guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Plaintiff fails 19 to cite and does not allege any harmful error.
20 1 E. Past Statements 2 Plaintiff contends that one of the records was repeated in the record and that
3 in one of the records it states that Plaintiff is having “quite a bit of back pain” and 4 refers to the positive MRI result. ECF No. 11 at 13-14. 5 Under the section labeled “Past Statements”, the ALJ reported that Plaintiff
6 has reported doing physically well during appointments and visits. Tr. 25, 3172. 7 While the ALJ recognized Plaintiff sometimes had “higher symptomology” his 8 self-assessment scores rated only mild for anxiety and depression. Tr. 25, 421-22, 9 441, 452, 446, 2362, 3180. Plaintiff reported improvements with medication and
10 that he feels good overall. Tr. 25, 411, 3172, 3180. The ALJ found that this 11 evidence was not consistent with Plaintiff’s reports of severe and debilitating 12 impairments. Tr. 25.
13 Again, as previously discussed, the ALJ provided sufficient evidence for his 14 determination. However, a repeated record does not prove harmful error. 15 Additionally, a report of back pain and reference to an MRI result does not 16 disregard the ALJ’s evidence. As a result, Plaintiff failed to properly assert
17 arguments with citations to the record and did not identify any error that warrants 18 remand. Accordingly, the Commissioner’s decision is affirmed. 19 ACCORDINGLY, IT IS HEREBY ORDERED:
20 1. Plaintiff’s Motion for Summary Judgment (ECF No. 11) is DENIED. 1 2. Defendant’s Response Brief (ECF No. 13) is GRANTED. The 2 Commissioner’s final decision is AFFIRMED. 3 The District Court Executive is directed to enter this Order, enter judgment 4|| for Defendant, furnish copies to counsel, and CLOSE this file. 5 DATED May 4, 2026.
<> United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20
ORDER AFFIRMING THE COMMISSIONER’S DENIAL OF PLAINTIFF’S