Gary D. v. Frank Bisignano, Commissioner of Social Security

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Gary D., 4 Case No. 2:25-cv-00996-MDC Plaintiff, 5 vs. ORDER DENYING PLAINTIFF’S 6 Frank Bisignano, Commissioner of Social REQUESTED RELIEF (ECF NO. 10) AND Security, AFFIRMING THE ADMINSTRATIVE LAW 7 JUDGE Defendant. 8 9 This matter involves plaintiff Gary D.’s request to reverse and either order payment of benefits 10 or a remand the Administrative Law Judge’s (“ALJ”) final decision denying his social security benefits. 11 Plaintiff filed his brief (ECF No. 10) and defendant Commissioner of Social Security filed an opposition 12 brief (ECF No. 14). The Court DENIES plaintiff’s requested relief and AFFIRMS the ALJ’s decision 13 for the reasons below. 14 I. BACKGROUND 15 This case arises under the Social Security Act, Title XVI. On May 9, 2022, Plaintiff filed 16 applications for disability insurance benefits, and supplemental security income alleging disability 17 commencing March 2, 2022. See Administrative Record (“AR”) at 235-275; ECF No. 10 at 7. The 18 Commissioner denied plaintiff’s claim by initial determination on December 21, 2022. AR 122-127. 19 Plaintiff sought reconsideration of that determination on January 9, 2023 (AR 129-130), which the 20 Commissioner denied on October 10, 2023 (AR 135-150). Plaintiff requested a de novo hearing before 21 an Administrative Law Judge on November 17, 2023. AR 152-153. The appointed ALJ conducted a 22 hearing on May 8, 2024 (AR 43-65) and issued an unfavorable decision on June 14, 2024, concluding 23 that plaintiff was not disabled (AR 14-32). 24 25 1 1 Plaintiff requested review of the ALJ decision by the Appeals Council on July 5, 2024 (AR 232- 2 234). On April 11, 2025, the council denied plaintiffs request (AR 1-6) and stating, “we have denied 3 your request for review . . . the Administrative Law Judge’s decision is the final decision of the 4 Commissioner of Social Security in your case.” AR 1; see 42 U.S.C. § 405(h). Per 42 U.S.C. § 1383(c), 5 plaintiff seeks judicial review of the Commissioner’s final decision two grounds. First, plaintiff claims 6 that the ALJ improperly rejected his subjective symptom testimony. Second, plaintiff claims that the 7 ALJ’s decision regarding past relevant work was erroneous because the ALJ used the 15-year look back 8 period to determine past relevant work but should have instead used the amended 5-year look back 9 period. 10 II. DISCUSSION 11 A. Standard of Review 12 The Court has jurisdiction to review the final decision of the Commissioner for substantial 13 evidence and error of law. 42 U.S.C. § 1383(c). The Fifth Amendment prohibits the government from 14 depriving persons of property without the due process of law. U.S. Const. amend. V. Social Security 15 plaintiffs have a constitutionally protected property interest in Social Security benefits. Mathews v. 16 Eldridge, 424 U.S. 319 (1976); Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990). When the 17 Commissioner of Social Security renders a final decision denying benefits, the Social Security Act 18 authorizes the District Court to review the Commissioner’s decision. See 42 U.S.C. § 405(g). 19 “On judicial review, an ALJ’s factual findings [are] ‘conclusive’ if supported by ‘substantial 20 evidence.’” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting 42 U.S.C. § 405(g)). Substantial 21 evidence is defined as “more than a mere scintilla” of evidence. Richardson v. Perales, 402 U.S. 389, 22 401 (1971). Under the “substantial evidence” standard, the Commissioner’s decision must be upheld if it 23 is supported by enough “evidence as a reasonable mind might accept as adequate to support a 24 25 2 1 conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (defining what a mere 2 scintilla of evidence is). 3 The substantial evidence threshold “is not high” and “defers to the presiding ALJ, who has seen 4 the hearing up close.” Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 2020) (citation omitted); see also 5 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (substantial evidence “is a 6 highly deferential standard of review”). “Where evidence is susceptible to more than one rational 7 interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 8 (9th Cir. 2005). 9 B. The Social Security Five-Step Sequential Inquiry 10 Under the Social Security Act, “disability” is the inability to engage “in any substantial gainful 11 activity by reason of any medically determinable physical or mental impairment which can be expected 12 to result in death or which has lasted or can be expected to last for a continuous period of not less than 13 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A claimant to Social Security benefits is disabled if his 14 physical or mental impairment(s) are so severe that he could not do his previous work or any other 15 substantially gainful work existing in the national economy when considering his age, education, and 16 work experience. See 42 U.S.C. § 1382c(a)(3)(B). The Social Security Commissioner has a five-step 17 process to determine if a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; see also Bowen v. 18 Yuckert, 482 U.S. 137, 140-41 (1987). The claimant has the burden of proof for steps one through four 19 and if the claimant can satisfy the burden for each step, the burden shifts to the Commissioner for step 20 five. Ford v. Saul, 950 F.3d 1141, 1148-1149 (9th Cir. 2020). The steps are followed in order and if the 21 claimant is found not disabled at any step, the inquiry ends. 22 In the first step, the claimant must establish that he does not engage in “substantial gainful 23 activity.” See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the Commissioner considers 24 whether the claimant has an impairment or combination of impairments are “severe” and significantly 25 3 1 limit the claimant’s physical or mental ability to do basic work activities. §§ 20 C.F.R. §§ 2 404.1520(a)(4)(ii)&(c), 416.920(a)(4)(ii)&(c). In the third step, the Commissioner determines whether 3 the claimant’s impairments meet or are the equivalent of one of the impairments listed in 20 C.F.R. Part 4 404, Subpart P, Appendix 1 which are presumably sufficient to preclude gainful activity. 20 C.F.R. §§ 5 404.1520(a)(4)(iii)&(d), 404.1525(a), 416.920(a)(4)(iii)&(d), and 416.925(a). If the claimant’s 6 impairment meets or equals one of the listed impairments, and is of sufficient duration, he is 7 conclusively presumed disabled. §§ 404.1520(a)(4)(iii)& (d), 416.920(a)(4)(iii)& (d). If the claimant’s 8 impairment is severe but does not meet or equal one of the listed impairments, the Commissioner 9 proceeds to step four. Yuckert, 482 U.S. at 141. 10 At step four, the Commissioner determines whether the claimant can still perform “past relevant 11 work.” 20 C.F.R. §§ 404.1520(a)(4)(iv), (e), (f), 416.920(a)(4)(iv), (e), (f). As discussed below for this 12 matter, past relevant work is work that the claimant performed in the last 15 years that lasted long 13 enough for him to learn to do it and was substantial gainful activity. 20 C.F.R. §§ 404.1565(a), 14 416.920(a). In making this determination, the Commissioner assesses the claimant’s residual functional 15 capacity (“RFC”) and the physical and mental demands of the work previously performed. See §§ 16 404.1565(a), 416.920(a); see also 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Berry v. Astrue, 17 622 F.3d 1228, 1231 (9th Cir. 2010). RFC is what the claimant can still do despite his limitations. 20 18 C.F.R. §§ 404.1545, 416.945. In determining the RFC, the Commissioner must assess all evidence, 19 including the claimant’s and others’ descriptions of the limitations and medical reports, to determine 20 what capacity he has for work. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). 21 The claimant can return to previous work if he can perform the “actual functional demands and 22 job duties of a particular past relevant job,” or “[t]he functional demands and job duties of the [past] 23 occupation as generally required by employers throughout the national economy.” Pinto v. Massanari, 24 249 F.3d 840, 845 (9th Cir. 2001) (internal quotation marks and citation omitted). If the claimant can 25 4 1 still do past relevant work, he is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f); see also Berry, 622 2 F.3d at 1231. 3 If the claimant cannot perform past relevant work, the burden shifts to the Commissioner to 4 establish at step five that the claimant can perform other work available in the national economy. 20 5 C.F.R. §§ 404.1520(e), 416.920(e). This means “work which exists in significant numbers either in the 6 region where such individual lives or in several regions of the country.” Gutierrez v. Comm’r of Soc. 7 Sec. Admin., 740 F.3d 519, 528 (9th Cir. 2014). The Commissioner must also consider the claimant’s 8 RFC, age, education, and past work experience to determine whether he can do other work. Yuckert, 482 9 U.S. at 141-42. The Commissioner may meet this burden either through the testimony of a Vocational 10 Expert or by reference to the Grids. Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). 11 If the Commissioner establishes at step five that the claimant can do other work which exists in 12 the national economy, then he is found to be not disabled. 20 C.F.R. §§ 404.1566(b), 416.966(b). 13 Conversely, if the Commissioner determines the claimant unable to adjust to any other work, then he is 14 found disabled. 20 C.F.R. §§ 404.1520(g), 416.920(g). 15 C. The ALJ Properly Rejected Plaintiff’s Subjective Symptom Testimony 16 Plaintiff’s issue concerns the fourth step in the sequential analysis. Here, the ALJ found that 17 plaintiff can still perform past relevant work, which plaintiff performed in the last 15 years that lasted 18 long enough for him to learn to do it and was substantial gainful activity. AR 26. In considering this 19 step, the ALJ rejected plaintiff’s subjective symptom testimony. Plaintiff argues that reversal and 20 remand is required because ALJ did not identify specific, clear and convincing reasons for rejecting 21 plaintiff’s testimony about the severity of his symptoms. The Court is not persuaded by plaintiff’s claim 22 of error and finds the ALJ sufficiently identified specific, clear and convincing reasons for rejecting 23 plaintiff’s testimony. 24 // 25 5 1 i. Legal Standards 2 Social Security regulations prohibit granting disability benefits based solely on a claimant’s 3 subjective complaints. 20 C.F.R. § 404.1529(a) (“[S]tatements about your pain or other symptoms will 4 not alone establish that you are disabled”). “An ALJ is not required to believe every allegation of 5 disabling [symptoms], or else disability benefits would be available for the asking, a result plainly 6 contrary to the Social Security Act.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (cleaned up). 7 Thus, where the claimant has provided objective medical evidence of an impairment that could 8 reasonably produce the alleged symptoms, the ALJ evaluates the alleged intensity and persistence of the 9 symptoms by assessing their consistency with (1) the objective medical evidence and (2) the other 10 evidence in the record. See 20 C.F.R. § 404.1529(c)(2)-(4); Social Security Ruling (SSR) 16-3p, 2017 11 WL 5180304; see also Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (“First, the ALJ must 12 determine whether the claimant has presented objective medical evidence of an underlying impairment 13 which could reasonably be expected to produce the pain or other symptoms alleged.”) 14 A claimant is “not required to show that her impairment could reasonably be expected to cause 15 the severity of the symptom she has alleged; she need only show that it could reasonably have caused 16 some degree of the symptom.” Garrison, 759 F.3d at 1014 (emphasis omitted) (citation omitted). A 17 complaint need not produce “objective medical evidence of the pain or fatigue itself, or the severity 18 thereof.” Id. (citation omitted). “If the claimant satisfies the first step of this analysis, and there is no 19 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of [their] 20 symptoms only by offering specific, clear and convincing reasons for doing so.” Garrison, 759 F.3d at 21 1014-15 (citation omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (“specific, 22 clear and convincing” are required to reject subjective testimony about the severity of symptoms). While 23 the “clear and convincing standard is the most demanding required in Social Security cases” (Garrison, 24 759 F.3d at 1015), ALJ meets such standard by “showing” his or her work. Smartt, 53 F.4th at 499. An 25 6 1 ALJ may show her work by identifying specific testimony of the plaintiff and explain what evidence 2 undermines that testimony. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (citations omitted). 3 The standard for reviewing the ALJ’s analysis “isn’t whether our court is convinced, but instead whether 4 the ALJ’s rationale is clear enough that it has the power to convince.” Smartt, 53 F.4th at 499 5 ii. Analysis 6 Here, the ALJ did not find evidence of plaintiff malingering and ALJ found that Plaintiff 7 suffered from severe impairments. AR 19. Thus, the issue raised by plaintiff is whether the ALJ offered 8 specific, clear and convincing reasons for rejecting his subjective testimony, which the Court finds the 9 ALJ did. The ALJ identified specific testimony of the plaintiff and explained the medical evidence 10 undermining that testimony clearly enough to convince this Court. 11 The ALJ identified specific testimony by plaintiff. Among other things, the ALJ stated that 12 plaintiff testified:

13 • His military back injury in now quite severe and “takes his back out, he is humped over, he cannot walk, and his legs are frozen. He said that this continued for years and years, 14 • He said that his injury is episodic. 15 • He said he cannot lift anything or work out. • He said he used to walk a lot, but he cannot walk anymore. 16 • He said that when his back goes out, he sometimes lies down for 2-3 weeks or months 17 and it fades away. • He said that he gets flares up 1-2 times a year, down from 3-4 times a year. 18 • He said his pain is in the lower back and that it travels down the legs through the hips to the ankles. 19 • He said his pain is constant. 20 • He said that any movement makes his pain worse. • He said that he lies down for 18 hours a day. 21 • He said that he can sit for 1-2 hours at a time. • He said he can walk for 10 minutes before needing to rest for 3-5 minutes. 22 • He said he can pick up one bag of groceries. 23 • He said he can stand for 10-15 minutes at one time. • He said he has difficulty bending down to tie his shoes. 24

25 AR 22-23. 7 1 The ALJ rejected plaintiff’s testimony, summarizing that his “alleged level of limitation is not 2 consistent with the medical evidence showing, for example, full motor strength, negative straight-leg- 3 raising tests, and normal gait…. His subjective complaints are also inconsistent with his conservative 4 treatment…[and] He declined physical therapy and injections.” AR 23. The ALJ then offered a 5 meaningful discussion of such medical evidence and treatment. The ALJ discussed the medical records 6 and findings by medical professionals, Drs. Snead, Kamal, Ribeiro, Pirone and Mai, which undermined 7 plaintiff’s subjective testimony. Among the ALJ’s developed discussion of those medical records and 8 findings, she identified that plaintiff:

9 • can perform light work and “occasionally climb ramps/stairs, stoop, kneel, crouch, and crawl” had “no gross abnormalities; no tenderness to palpation elicited; 10 • full active range of motion in all planes; 11 • sensation intact to light touch in the lower limbs; • normal motor in his upper and lower extremities 12 • did not have deformity or swelling of any joint; 13 • has a bilateral hip rotation without terminal pain; • did not express tenderness or pain when his back was palpitated 14 • has normal gait and pace • was able to sit comfortably without shifting in the chair; 15 • was able to stand up from a sitting position and sit up from the supine position without 16 difficulty • straight leg raise test was negative bilaterally, seated and supine 17 • was able to hop 18 • can bend forward approximately 30 degrees and squat approximately 20 degrees

19 AR 23-25 20 The ALJ identified, discussed and elaborated sufficient medical evidence to show her work and 21 be convincing. “[T]he ALJ is not required to discuss every piece of evidence in the record when 22 reaching his conclusions[.]” M.A.G. by the Through Basso v. Kijakzi, No. 2:23-cv-01595-EJY, 2024 WL 23 1695114, at *5 (D. Nev. April 18, 2024) (citation omitted). Therefore, the ALJ does not need to “draft 24 dissertations when denying benefits.” Lambert, 980 F.3d at 1277. “Contradiction with the medical 25 8 1 record is a sufficient basis for rejecting the claimant’s subjective testimony.” Carmickle v. Comm'r of 2 Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). Moreover, the ALJ also identified other evidence 3 from plaintiff contradicting his subjective evidence (AR 22) and found that plaintiff refused injections, 4 and physical therapy, and opted for over-the-counter and prescription anti-inflammatories (AR 23). In 5 rejecting a claimant’s subjective symptom testimony, the ALJ may consider and weigh against claimant 6 a failure to seek treatment. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Chaudhry v. Astrue, 7 688 F.3d 661, 672 (9th Cir. 2012) (“[I]f a claimant complains about disabling pain but fails to seek 8 treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such failure as a basis for 9 finding the complaint unjustified or exaggerated”) (internal citations omitted). Accordingly, the Court 10 finds the ALJ met the “clear and convincing standard” in this matter.

11 D. ALJ’s Decision Regarding Past Relevant Work Was Correct Because The Amended 5-Year Look Back Period Did Not Apply To Plaintiff’s Claim 12

13 Plaintiff claims that the ALJ’s decision regarding past relevant work was erroneous because the 14 ALJ used the 15-year look back period to determine past relevant work but should have instead used the 15 amended 5-year look back period. This issue also arises under step four in the sequential inquiry and 16 concerns the applicable time period the ALJ may look back and examine the claimant’s “past relevant 17 work.” Prior to June 22, 2024, the regulation defining “past relevant work,” 20 C.F.R. § 404.1560(b)(1), 18 provided that the Commissioner (ALJ) could examine a claimant’s last 15-years of work experience to 19 determine whether claimant could still perform “past relevant work.” The Social Security 20 Administration subsequently promulgated a final rule reducing the relevant work period from 15 years 21 to 5 years. Intermediate Improvement to the Disability Adjudication Process, Including How We 22 Consider Past Work, 89 Fed. Reg. 27,653 (Apr. 18, 2024). The 5-year look back rule became effective 23 on June 22, 2024, and applied “to all newly filed and pending claims beginning on June 22, 2024.” 24 Intermediate Improvement to the Disability Adjudication Process, Including How We Consider Past 25 9 1 Work; Deferral of Effective Date, 89 Fed. Reg. 48,138 (June 5, 2024). The ruling that included a policy 2 interpretation of the new rule which states that the Social Security Administration "expect[s] that 3 Federal courts will review our final decisions using the rules that were in effect at the time we issued the 4 decisions." SSR 24-2p, 89 Fed. Reg. 48,479, 48,479 n.1 (June 6, 2024). 5 The ALJ issued her written decision on June 14, 2024, before the effective date of the new rule, 6 the Appeal Council did not deny plaintiff’s request for review until April 11, 2025, after the new rule 7 was triggered. Relying on Bass v. Soc. Sec. Admin., plaintiff argues the adjudication of his claim did not 8 become final until the Appeal Council’s April 11, 2025, denial and thus, was “pending” as of June 22, 9 2024, when the new 5-year rule became effective. ECF No. 10 (citing Bass v. Soc. Sec. Admin 872 F.2d 10 832, 833 (9th Cir. 1989) (“The decision made following the hearing does not become the final decision 11 of the Secretary until the claimant requests review by the appeals council, and the appeals council either 12 grants or denies review.”)). Plaintiff’s reliance on Bass is misplaced. 13 Bass addressed the finality of a Commissioner’s decision for the purposes of establishing 14 exhaustion of administrative remedies to quality for judicial review under 42 U.S.C. § 405(g), and not 15 the adjudication date of a claim:

16 A claimant’s failure to exhaust the procedures set forth in the Social Security Act, 42 U.S.C. § 405(g), deprives the district court of 17 jurisdiction….

18 Section 405(g) provides that a civil action may be brought only after (1) 19 the claimant has been party to a hearing held by the Secretary, and (2) the Secretary has made a final decision on the claim. To obtain a hearing, the 20 claimant must (1) present a claim to the Secretary and obtain an initial determination…; (2) seek reconsideration…; and (3) after reconsideration, 21 request a hearing before an administrative law judge…. The decision made following the hearing does not become the final decision of the 22 Secretary until the claimant requests review by the appeals council, and the appeals council either grants or denies review…. 23 Appellant has failed to request a reconsideration, a hearing before an 24 administrative law judge, or review by the appeals council. Accordingly, 25 10 the district court did not err in dismissing his complaint for lack of subject 1 matter jurisdiction. 2 Bass, 872 F.2d at 833 (internal citations omitted); see also 20 C.F.R. § 404.981 (“You may file an action 3 in a Federal district court within 60 days after the date you receive notice of the Appeals Council’s 4 action.”). 5 More recently, the Ninth Circuit specifically addressed the relevant issue here in Obrien v. 6 Bisignano when it examined the look back period under 404.1560(b)(1) and announced that, after 7 Appeals Council denies review, the relevant “adjudication” date is the date of the ALJ’s decision. Id., 8 142 F.4th 687, 702 (9th Cir. 2025) (“Here, because the Appeals Council denied review, the relevant 9 ‘adjudication’ is the ALJ’s decision.”); see also Beatty v. Bisignano, No. 24-2882, 2025 WL 1639232, at 10 *2 (9th Cir. June 10, 2025) (“Beatty argues that we should apply the Social Security Administration’s 11 new definition of past relevant work. While the agency has amended the regulation… that regulation 12 only went into effect on June 22, 2024—long after the ALJ decided Beatty’s claim.”); Benson v. Dudek, 13 No. 24-4647, 2025 WL 1404946, at *2 (9th Cir. May 15, 2025) (declining to apply the 5-year rule 14 change retroactively to ALJ adjudication made before June 22, 2024; recognizing that the ALJ’s 15 decision is final adjudication of the claim that later became effective when the administrative appeals 16 process was exhausted); Evans v. Chater, No. 95-35510, 1996 WL 422830, at *1 (9th Cir. July 26, 17 1996) (“The Appeals Council found no basis to change the ALJ’s decision and that determination 18 therefore became the final decision of the Commissioner.”); Christopher D. v. Kijakazi, No. 2:23-CV- 19 01287-MDC, 2024 WL 3738629, at *1 (D. Nev. August 8, 2024) (“the Appeals Council declined to 20 disturb the decision of the ALJ, making the ALJ’s determination, the Commissioner’s final decision.”); 21 Chris C. v. SSA Comm’r, No. 25-cv-04134-TSH, 2025 WL 3771614, at *3-4 (N.D. Cal. December 31, 22 2025) (following Obrien and rejecting claimant’s argument that the new 5-year look back rule should 23 apply because the Appeals Council did not deny his request to review the ALJ’s April 23, 2024 decision, 24 until March 14, 2025). 25 11 1 Therefore, the ALJ did not commit the alleged error because the 15-year look back period 2 || applied to plaintiffs claim. 3 CONCLUSION & ORDER 4 For the foregoing reasons, the Court finds that the ALJ stated specific, clear and convincing 5 reasons for rejecting plaintiffs subjective symptom testimony and correctly applied the 15-year look 6 || back period to plaintiff's claim. 7 ACCORDINGLY, 8 IT IS ORDERED that: 1. Plaintiff’s requested relief in her Brief (ECF No. 10) DENIED. 2. Commissioner’s Brief (ECF No. 14) requesting to affirm is GRANTED. " 3. The Clerk of Court is directed to enter final judgment AFFIRMING the decision of the Administrative Law Judge. 8 4. The Clerk of Court shall CLOSE this case. 14 DATED: July 2, 2026. '6 IT IS SO ORDERED.

Hon, Wraximiliasss D Cowvillier, II 19 Unjied States Magistrate Judge □□□ 21 22 23 24 25 12