Heath v. Bisignano

• Court: District Court, E.D. Washington
• Decided: September 30, 2025
• Docket: 1:24-cv-03081
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Sep 30, 2025 3

SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 ECHO H., No. 1:24-CV-03081-JAG-1 7

8 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION 9 v. FOR SUMMARY JUDGMENT 10 FRANK BISIGNANO, 11 Commissioner of Social Security,1 12 13 Defendant.

15 BEFORE THE COURT is Plaintiff’s Opening Brief and the 16 Commissioner’s Brief in response. ECF Nos. 10, 14. Attorney James Tree 17 represents Echo H. (Plaintiff); Special Assistant United States Attorney Lori 18 Lookliss represents the Commissioner of Social Security (Defendant). The parties 19 have consented to proceed before the undersigned by operation of Local Magistrate 20 Judge Rule (LMJR) 2(b)(2), as no party returned a Declination of Consent Form to 21 the Clerk’s Office by the established deadline. ECF No. 4. After reviewing the 22 administrative record and briefs filed by the parties, the Court GRANTS Plaintiff’s 23 Motion for Summary Judgment and REMANDS for benefits. 24 25

26 1 Frank Bisignano became the Commissioner of Social Security May 6, 2025.

27 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Frank Bisignano is 28 substituted for the defendant in this suit. See 42 U.S.C. § 405(g). 1 I. JURISDICTION 2 Plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Security Income on August 19, 2020, alleging disability since March 4 1, 2019. Plaintiff’s claim was denied initially and on reconsideration, and she 5 requested a hearing before an administrative law judge (ALJ). Tr. 17. A hearing 6 was held on October 30, 2023, at which vocational expert (VE) Bernard Preston, 7 and Plaintiff, who was represented by counsel, testified. Tr. 40-87. ALJ Kathleen 8 Scully-Hayes presided. Tr. 44-91. The ALJ denied benefits on November 16, 9 2023. Tr. 17-38. The Appeals Council denied review. Tr. 1-5. The ALJ’s 10 decision became the final decision of the Commissioner, which is appealable to the 11 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 12 review on May 30, 2024. ECF No. 1. 13 II. STATEMENT OF FACTS 14 The facts of the case are set forth in detail in the transcript of proceedings 15 and the ALJ’s decision and are only briefly summarized here. Plaintiff was born in 16 1975 and was 43 years old2 on the alleged onset date. Tr. 20 (onset date of March 17 1, 2019); Tr. 31 (Plaintiff born in 1975). Plaintiff’s past jobs include scanning, 18 stocking, and cleaning. Tr. 20. 19 III. STANDARD OF REVIEW 20 The ALJ is responsible for determining credibility, resolving conflicts in 21 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 22 23 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 24 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 25

26 2 The ALJ’s findings at Tr. 31, finding number 7, incorrectly states claimant was 27 38 years old at the time of alleged onset, however this does error does not impact 28 claimant’s categorization as a younger individual age 18-49. 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 1 2 only if it is not supported by substantial evidence or if it is based on legal error. 3 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 4 defined as being more than a mere scintilla, but less than a preponderance. Id. at 5 1098. Put another way, substantial evidence is such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion. Richardson v. 7 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 8 rational interpretation, the Court may not substitute its judgment for that of the 9 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 10 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 11 administrative findings, or if conflicting evidence supports a finding of either 12 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 13 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 14 supported by substantial evidence will be set aside if the proper legal standards 15 were not applied in weighing the evidence and making the decision. Brawner v. 16 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 17 IV. SEQUENTIAL EVALUATION PROCESS 18 The Commissioner established a five-step sequential evaluation process for 19 determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); 20 see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the 21 burden of proof rests upon the claimant to establish a prima facie case of 22 23 entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This burden is 24 met once a claimant establishes that a physical or mental impairment prevents him 25 from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 26 If a claimant cannot do his past relevant work, the ALJ proceeds to step five, and 27 the burden shifts to the Commissioner to show that (1) the claimant can make an 28 adjustment to other work; and (2) the claimant can perform specific jobs that exist in the national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1 2 1193-94 (9th Cir. 2004). If a claimant cannot make an adjustment to other work in 3 the national economy, the claimant will be found disabled. 20 C.F.R. §§ 4 404.1520(a)(4)(v), 416.920(a)(4)(v). 5 V. ADMINISTRATIVE FINDINGS 6 On November 16, 2023, the ALJ issued a decision finding Plaintiff was not 7 disabled as defined in the Social Security Act. Tr. 17-38 8 At step one, ALJ Scully-Hayes found that Plaintiff had not engaged in 9 substantial gainful activity since March 19, 2019. Tr. 20. 10 At step two, she found Plaintiff had the severe impairments of major 11 depressive disorder (“MDD”); anxiety; post-traumatic stress disorder (“PTSD”); 12 attention deficit hyperactivity disorder (“ADHD”); opioid use disorder, in 13 remission; asthma; and right clavicle injury. Tr. 21. 14 At step three, the ALJ determined that Plaintiff does not have an impairment 15 or combination of impairments that meets or medically equal one of the listed 16 impairments in 20 C.F.R., Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 17 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). Tr. 25. 18 The ALJ also found that Plaintiff has the residual functional capacity 19 (“RFC”) to perform light work, with the following limitations: 20 except occasional climbing, no ladders, ropes or scaffolds; occasional 21 balance, stoop, kneel, crouch, and crawl; occasional bilateral reaching 22 above shoulder level; must avoid temperature extremes; must avoid wet 23 and humid environments; must avoid concentrated exposure to fumes, odors, dust, and poor ventilation; and must avoid hazards including 24 heights and moving machinery. She can understand, remember, and 25 carry out simple, routine, and repetitive instructions and can tolerate occasional interaction with supervisors and co-workers and no 26 interaction with the public. She requires low stress jobs, defined as no 27 production-rate paced work, only occasional changes in job setting, and only occasional decision-making responsibilities. 28 Tr 23. 1 2 At step four, the ALJ found that Plaintiff could not perform any past 3 relevant work. Tr. 30. 4 At step five, the ALJ found that, based on the testimony of the vocational 5 expert, and considering Plaintiff’s age, education, work experience, and RFC, 6 Plaintiff was capable of performing jobs that existed in significant numbers in the 7 national economy, including the jobs of garment sorter, price marker, and routing 8 clerk. Tr. 32. 9 The ALJ thus concluded Plaintiff was not under a disability within the 10 meaning of the Social Security Act at any time from the alleged onset date through 11 the date of the decision. Tr. 32. 12 VI. ISSUES 13 The question presented is whether this Court should remand for benefits or 14 for further proceedings, as both the Plaintiff and Defendant agree that reversible 15 legal error has occurred in the ALJ’s decision. 16 Plaintiff contends that the ALJ erred by: 1) finding this RFC is inconsistent 17 with disability; 2) not properly assessing Plaintiff’s testimony; and 3) not properly 18 assessing Dr. Genthe’s opinion. Plaintiff argues remand for calculation of benefits 19 is the appropriate remedy. ECF No. 10. 20 Defendant contends remand for further proceedings is the appropriate 21 remedy because the record before the Court does not conclusively establish 22 23 Plaintiff’s disability status and outstanding issues must be addressed before it can 24 be determined whether Plaintiff is disabled. ECF No. 14. 25 VII. DISCUSSION 26 A. Bernard M. Preston, vocational expert: 27 The vocational expert (VE) testified at the hearing that, with the determined 28 RFC, Plaintiff would not be able to perform any of her prior work. Tr. 83. The VE then identified three jobs existing in significant numbers in the national 1 2 economy that Plaintiff could perform given the RFC: 1) garment sorter; 2) price 3 marker; and 3) routing clerk. Id. Each of these jobs is rated at SVP 2. ECF No. 4 15 at 4. When asked if, with respect to the identified jobs and the training period 5 and probationary period for those jobs, a person with that RFC and limited to 6 occasional supervisor and coworker contact is ready for competitive work and will 7 make it through the training/probationary period, the VE responded “[i]n my 8 professional opinion, no.” Tr. 86. 9 Plaintiff contends the RFC compels disability, based on the testimony of the 10 vocational expert, who testified that, in his opinion, Plaintiff is not ready for 11 competitive work and would not make it through the training probationary period 12 with those limitations. Plaintiff specifically notes that each of these jobs, with SVP 13 of 2, is defined by the DOT as having a training period “of anything beyond a short 14 demonstration up to and including 1 month.” ECF No. 15 at 3. Plaintiff argues 15 there is nothing further to develop in the record, and under the credit-as-true rule, 16 disability is compelled, therefore remand for benefits is the appropriate action. 17 Defendant argues the record requires further development for two reasons: 18 1) the ALJ did not explain why she did not accept the latter portion of the VE’s 19 testimony, and 2) the VE’s testimony leaves an open question as to how many, if 20 any, of the identified jobs require a probationary/training period. ECF No. 14 21 at 11. 22 23 As Plaintiff correctly notes, “[t]he VE was specifically asked about ‘the 24 training period and probation period for these jobs.” ECF No. 15 at 4, citing 25 Tr. 86. As such, there are no open questions as to how many of the identified jobs 26 require a probationary/training period. The ALJ did not address that portion of the 27 VE’s testimony in any way, but, as Plaintiff again correctly notes, there is no 28 contrary evidence in the record, and the ALJ failed to provide any rationale for discounting this opinion. ECF No. 15 at 2-3. A VE’s testimony is inherently 1 2 reliable. See Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020) and Buck v. 3 Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). Id. 4 The Ninth Circuit has set forth a three part standard for determining when to 5 credit improperly discounted medical opinion evidence as true: (1) the record has 6 been fully developed and further administrative proceedings would serve no 7 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 8 the evidence in question; and (3) if the improperly discredited evidence were 9 credited as true the ALJ would be required to find Plaintiff eligible for benefits. 10 Garrison, 759 F.3d at 1020. In this case, all three parts of the standard are met. 11 These three parts are addressed below. 12 First, the record has been fully developed, and further proceedings would 13 serve no purpose. The VE was asked specifically about Plaintiff’s ability to 14 complete the training/probation period for the jobs identified, and the VE 15 responded, in his professional opinion, Plaintiff would be unable to do so. The 16 obligation to develop the record “is triggered only when there is ambiguous 17 evidence or when the record is inadequate to allow for proper evaluation of the 18 evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). The VE 19 unambiguously answered the direct question regarding these jobs. An immediate 20 award of benefits is appropriate where “no useful purpose would be served by 21 further administrative proceedings, or where the record has been thoroughly 22 23 developed.” Varney v. Secretary of Health & Human Servs., 859 F.2d 1396, 1399 24 (9th Cir. 1988). 25 Second, the ALJ failed to provide any reasons for rejecting this portion of 26 the VE’s testimony, let alone any legally sufficient reasons. The ALJ entirely 27 ignored this testimony in her decision. However, the ALJ did address that she 28 found the VE to be reliable and did rely on the VE’s experience and testimony: “I find the expert’s explanation sufficient and rely on the vocational expert’s 1 2 experience and testimony to conclude that an individual with the reaching 3 limitations included in the residual functional capacity assigned above is able to 4 perform the identified jobs.” Tr 32. The ALJ gave no indication that she did not 5 find the VE to be a reliable expert in any capacity and, based on the record, 6 appears to have ignored the portion of the VE’s testimony that compelled 7 disability. The second prong of the credit-as-true rule is, therefore, met. 8 The Commissioner further argued a different RFC could be found upon 9 remand, and as a result, this issue would be dispositive. ECF No. 14 at 10. 10 However, as Plaintiff correctly points out, “to still remand for additional 11 proceedings in such circumstances essentially asks the ALJ to craft a different RFC 12 to reach a predetermined conclusion of non-disability—rather than assessing 13 disability based on where the evidence leads. This would also create an unfair’ 14 heads we win; tails let’s play again’ system of disability benefits adjudication.” 15 ECF No. 15 at 7, citing Moisa v. Barnhart, 367 F. 3d 882, 887 (9th Cir. 2004). 16 Finally, if the improperly discredited testimony of the VE is credited as true, 17 the ALJ would be required to find Plaintiff disabled and eligible for benefits. The 18 Ninth Circuit has held “substantial gainful activity means more than merely the 19 ability to find a job and physically perform it; it also requires the ability to hold the 20 job for a significant period of time.” Gatliff v. Comm’r of Soc. Sec. Admin, 172 21 F.3d 690, 694 (9th Cir. 1999). The inability to complete a training/probationary 22 23 period clearly is not consistent with the ability to hold a job for a significant period 24 of time. Under Gatliff, the ALJ would be required to find Plaintiff eligible for 25 benefits if she credited the VE’s testimony regarding the training/probationary 26 period as true. 27 The Ninth Circuit recently addressed a factually similar case in Leitz v. 28 Kijakazi, No. 22-35356, 2023 WL 4342114 (9th Cir. July 5, 2023). In Leitz, the ALJ found Leitz could have only brief interactions with co-workers and the public 1 2 and only occasional interaction with supervisors “(although additional time for 3 training is acceptable).” Id. at 2. The Ninth Circuit found the ALJ provided no 4 support for the caveat allowing interactions beyond the RFC for training: 5 There is no evidence in the record which indicates that Leitz's mental problems are somehow alleviated during training periods because they 6 are less likely to include supervisor interactions than other work 7 periods, or that employers would be willing to tolerate her limitations during training periods. In fact, common experience tends to indicate 8 that training time—the first few months on the job—would be the time 9 when most frequent supervisorial interaction would be required to teach 10 a new hire the job.

11 Id. 12 Similarly, in this case the VE’s testimony that Plaintiff would be unable to 13 complete any training/probationary period is logical given the RFC finding that 14 Plaintiff could tolerate only occasional interaction with supervisors and co-workers 15 and no interaction with the public. It is unreasonable to assume Plaintiff could 16 somehow tolerate additional interactions during training or that training could be 17 accomplished with only occasional interaction with supervisors and co-workers. 18 The Leitz court held: 19 Remand for further administrative proceedings is appropriate if 20 enhancement of the record would be useful. Conversely, where the 21 record has been developed fully and further administrative proceedings would serve no useful purpose, the district court should remand for an 22 immediate award of benefits.” Benecke v. Barnhart, 379 F.3d 587, 593 23 (9th Cir. 2004) (citation omitted). In this case, the vocational expert 24 clearly testified that Leitz would not have the RFC to perform the any of the available jobs unless her RFC included the training-period 25 caveat. Thus, without the training-period caveat, Leitz must be 26 considered disabled. The record therefore demonstrates that Leitz is entitled to benefits when the training-period caveat is struck from the 27 RFC. See Reddick v. Chater, 157 F.3d 715, 729 (9th Cir. 1998).

28 1 || JZ at 3. Similarly, taking into account the VE’s testimony that Plaintiff could not || tolerate a training/probationary period, the record here demonstrates Plaintiff is 3|| entitled to benefits when the VE’s testimony is taken into consideration. 4|| B. Dr. Genthe’s Opinion and Plaintiff's Testimony. 5 Having determined a remand for calculations of benefits is appropriate based 6]|| on consideration of the VE’s testimony, it is unnecessary to consider Plaintiff's 7|| arguments relating to Dr. Genthe’s opinion and Plaintiff's testimony. Thus, the 8 || Court need not reach these alternative grounds for remand. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for 101) the reasons stated, we decline to reach [plaintiff's] alternative ground for remand.”). 12 VIII. CONCLUSION 13 Having reviewed the record and the ALJ's findings, the Court concludes the M4 ALJ's decision is not supported by substantial evidence and is based on legal error. Accordingly, IT IS ORDERED: : 1. Plaintiff's Motion, ECF No. 10, is GRANTED.

12 2. Defendant’s Motion, ECF No. 14, is DENIED. 19 3. An application for attorney fees may be filed by separate motion. 0 The District Court Executive is directed to file this Order and provide a copy counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 22 DATED September 30, 2025.

JAMES A. GOEKE 25 Va UNITED STATES MAGISTRATE JUDGE 26 27 28