Jul 09, 2026 1 SEAN F. MCAVOY, CLERK 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON
6 JENNIFER W., No. 1:25-CV-03180-ACE
7 Plaintiff, ORDER GRANTING DEFENDANT’S 8 MOTION 9 v.
10 FRANK BISIGNANO, ECF Nos. 12 & 14 11 COMMISSIONER OF SOCIAL SECURITY, 12
13 Defendant. 14 15 BEFORE THE COURT is Plaintiff’s Opening Brief and Defendant’s Brief 16 in response. ECF No. 12, 14. Attorney D. James Tree represents Plaintiff; Special 17 Assistant United States Attorney Sarah Moum represents Defendant. After 18 reviewing the administrative record and the briefs filed by the parties, the Court 19 GRANTS Defendant’s motion and DENIES Plaintiff’s motion. 20 JURISDICTION 21 Plaintiff protectively filed an application for Supplemental Security Income 22 benefits in February 2023, alleging a disability onset date of January 1, 2018. Tr. 23 206. The application was denied initially and upon reconsideration. 24 Administrative Law Judge (ALJ) David Johnson held a hearing on April 24, 2025, 25 Tr. 39-74, and issued an unfavorable decision on May 23, 2025, Tr. 17-34. At the 26 hearing, the alleged onset date was amended to February 21, 2023. Tr. 45. The 27 Appeals Council denied Plaintiff’s request for review on August 18, 2025, Tr. 1-6, 28 making the ALJ’s decision the Commissioner’s final decision for purposes of 1 judicial review, which is appealable to the district court pursuant to 42 U.S.C. 2 § 405(g). Plaintiff filed this action for judicial review on October 17, 2025. ECF 3 No. 1. 4 STANDARD OF REVIEW 5 The ALJ is tasked with “determining credibility, resolving conflicts in 6 medical testimony, and resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 7 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 8 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 9 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 10 only if it is not supported by substantial evidence or if it is based on legal error. 11 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 12 defined as being more than a mere scintilla, but less than a preponderance. Id. at 13 1098. Put another way, substantial evidence “is such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 15 Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 16 U.S. 197, 229 (1938). If the evidence is susceptible to more than one rational 17 interpretation, the Court may not substitute its judgment for that of the ALJ. 18 Tackett, 180 F.3d at 1098; Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 19 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 20 if conflicting evidence supports a finding of either disability or non-disability, the 21 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 22 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be 23 set aside if the proper legal standards were not applied in weighing the evidence 24 and making the decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 25 432, 433 (9th Cir. 1988). 26 SEQUENTIAL EVALUATION PROCESS 27 The Commissioner has established a five-step sequential evaluation process 28 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 1 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 2 four the claimant bears the burden of establishing a prima facie case of disability. 3 Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes 4 that a physical or mental impairment prevents the claimant from engaging in past 5 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 6 perform past relevant work, the ALJ proceeds to step five and the burden shifts to 7 the Commissioner to show: (1) the claimant can perform other substantial gainful 8 activity; and (2) a significant number of jobs exist in the national economy which 9 the claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1497-1498 (9th Cir. 10 1984); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a claimant cannot 11 make an adjustment to other work in the national economy, the claimant will be 12 found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 13 ADMINISTRATIVE FINDINGS 14 On May 23, 2025, the ALJ issued a decision finding Plaintiff was not 15 disabled as defined in the Social Security Act. Tr. 17-34. 16 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 17 activity since the February 21, 2023 amended alleged onset date. Tr. 20. 18 At step two, the ALJ determined Plaintiff had the following severe 19 impairments: substance use disorder with substance-induced cardiomyopathy, 20 heart disease, hypertension, and asthma. Tr. 20. 21 At step three, the ALJ found Plaintiff did not have an impairment or 22 combination of impairments that met or medically equaled the severity of one of 23 the listed impairments. Tr. 24. 24 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 25 she could perform light work that does not require more than occasional balancing, 26 stooping, kneeling, crouching, crawling, or climbing; and that does not require 27 concentrated exposure to pulmonary irritants or extreme cold. Tr. 25. 28 /// 1 At step four, the ALJ found Plaintiff did not have past relevant work. Tr. 31. 2 At step five, the ALJ found that, based on the testimony of the vocational 3 expert, and considering Plaintiff’s age, education, work experience, and RFC, 4 Plaintiff could perform jobs that exist in significant numbers in the national 5 economy, including the jobs of marker, cashier II, and advertising material 6 distributor. Tr. 32-33. 7 The ALJ thus concluded Plaintiff was not under a disability within the 8 meaning of the Social Security Act at any time from the amended alleged onset 9 date, February 21, 2023, through the date of the decision, May 23, 2025. Tr. 33- 10 34. 11 ISSUES 12 The question presented is whether substantial evidence supports the ALJ’s 13 decision denying benefits and, if so, whether that decision is based on proper legal 14 standards. 15 Plaintiff argues the ALJ reversibly erred by (1) not properly assessing the 16 cardiac listings; (2) refusing to consider or exhibit medical opinion evidence from 17 Plaintiff’s cardiology office; (3) finding Plaintiff’s stroke was non-severe; (4) not 18 fully and fairly developing the record; and (5) not properly assessing Plaintiff’s 19 testimony. ECF No. 12 at 1. 20 DISCUSSION 21 A. Step Three 22 Plaintiff asserts the ALJ erred at step three by failing to properly assess the 23 listing for chronic heart failure, Listing 4.02. ECF No. 12 at 3-6. 24 At step three, the ALJ considers whether one or more of a claimant’s 25 impairments meets or equals an impairment listed in Appendix 1 to Subpart P of 26 the Social Security regulations. See 20 C.F.R. § 416.920(a)(4)(iii). Each listing 27 sets forth the “symptoms, signs, and laboratory findings” that must be established 28 for a claimant’s impairment to meet the listing. Tackett, 180 F.3d at 1099. If a 1 claimant meets or equals a listing, the claimant is considered disabled with no need 2 for further inquiry. See 20 C.F.R. § 416.920(d). As a result of that presumption of 3 disability, “[l]isted impairments are set at a high level of severity.” Hubbell v. 4 Kijakazi, 2023 WL 6620305 at *1 (9th Cir. 2023). 5 It is Plaintiff’s responsibility to prove she is disabled at step three by 6 establishing she has an impairment that meets or equals a listing impairment. 7 Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005); Tackett, 180 F.3d at 1098- 8 1099. To meet a listing, Plaintiff must “present medical findings equal in severity 9 to all the criteria for the one most similar listed impairment.” Kennedy v. Colvin, 10 738 F.3d 1172, 1174 (9th Cir. 2013) (citing Sullivan v. Zebley, 493 U.S. 521, 531 11 (1990)). 12 To meet the required level of severity for Listing 4.02, a claimant must 13 satisfy both the Paragraph A and Paragraph B criteria, while on a regimen of 14 prescribed treatment, and with the symptoms and signs described in Listing 15 4.00(D)(2) including: cardiomegaly or ventricular dysfunction, demonstrated by 16 medically acceptable imaging, or symptoms and signs of pulmonary or systemic 17 congestion or of limited cardiac output, such as fatigue, weakness, dyspnea, cough, 18 chest discomfort at rest or with activity, cardiac arrhythmias resulting in 19 palpitations, lightheadedness or fainting, peripheral edema, rales, rapid weight 20 gain, ascites, increased jugular venous distention or pressure, or hepatomegaly. 20 21 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 4.02 (emphasis added). Paragraph A 22 requires either 1) medically documented systolic failure with left ventricular end 23 diastolic dimensions greater than 6.0 cm or ejection fraction of 30 percent or less 24 during a period of stability (not during an episode of acute heart failure); or 2) 25 diastolic failure, with left ventricular posterior wall plus septal thickness totaling 26 2.5 cm or greater on imaging, with an enlarged left atrium greater than or equal to 27 4.5 cm, with normal or elevated ejection fraction during a period of stability (not 28 during an episode of acute heart failure). 20 C.F.R. Pt. 404, Subpt. P, App. 1, 1 Listing 4.02A (emphasis added). Paragraph B requires one of the following: 1) 2 persistent symptoms of heart failure which very seriously limit the ability to 3 independently initiate, sustain, or complete activities of daily living in an 4 individual for whom a medical consultant, preferably one experienced in the care 5 of patients with cardiovascular disease, has concluded that the performance of an 6 exercise test would present a significant risk to the individual; or 2) three or more 7 separate episodes of acute congestive heart failure within a consecutive 12-month 8 period, with evidence of fluid retention from clinical and imaging assessments at 9 the time of the episodes, requiring acute extended physician intervention such 10 as hospitalization or emergency room treatment for 12 hours or more, 11 separated by periods of stabilization; or 3) inability to perform an exercise 12 tolerance test at a workload equivalent to 5 METs or less due to: a. dyspnea, 13 fatigue, palpitations, or chest discomfort; or b. three or more consecutive 14 premature ventricular contractions (ventricular tachycardia), or increasing 15 frequency of ventricular ectopy with at least 6 premature ventricular contractions 16 per minute; or c. decrease of 10 mm Hg or more in systolic pressure below the 17 baseline systolic blood pressure or the preceding systolic pressure measured during 18 exercise due to left ventricular dysfunction, despite an increase in workload; or d. 19 signs attributable to inadequate cerebral perfusion, such as ataxic gait or mental 20 confusion. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 4.02B (emphasis added). 21 The Court notes at the outset that Defendant’s briefing provides a persuasive 22 argument that Plaintiff has failed to meet her burden to establish the basic 23 requirement of Listing 4.02 to show she was “on a regimen of prescribed 24 treatment” during the relevant time period. ECF No. 14 at 3-4. It does not appear 25 Plaintiff was on a regimen of prescribed treatment or that she had quit using 26 methamphetamine at the time of her cardiac testing. However, these were not the 27 reasons given by the ALJ for finding that Plaintiff did not meet or equal the 28 severity of Listing 4.02. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1 1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to 2 review the ALJ’s decision based on the reasoning and factual findings offered by 3 the ALJ––not post hoc rationalizations that attempt to intuit what the adjudicator 4 may have been thinking.”); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“We 5 review only the reasons provided by the ALJ in the disability determination and 6 may not affirm the ALJ on a ground upon which he did not rely.”). Accordingly, 7 as asserted by Plaintiff, ECF No. 15 at 1, the post hoc rationalizations cannot be 8 used to sustain the decision. 9 Paragraph A of Listing 4.02 requires an “ejection fraction of 30 percent or 10 less during a period of stability (not during an episode of acute heart failure).” 11 Listing 4.02 thus defines “a period of stability” as during a time the claimant is not 12 suffering an episode of acute heart failure. Here, the ALJ found Listing 4.02A was 13 not met because Plaintiff did not have an echo “during a period of stability” 14 showing an ejection fraction value of 30% or less. Tr. 24. The ALJ specifically 15 found Plaintiff’s ejection fraction value of 20% recorded in October 2024 was not 16 during “a period of stability” because Plaintiff had suffered a stroke. Tr. 24. A 17 stroke (brain blockage) is not an acute heart failure (the sudden inability of the 18 heart to pump enough blood). Therefore, the ALJ erred by determining the 19 ejection fraction value of 20% in October 2024 was not recorded during “a period 20 of stability.” 21 Regarding Paragraph B criteria, Plaintiff specifically contends the ALJ erred 22 by neglecting to consider whether Plaintiff met Listing 4.02B(2) by experiencing 23 three or more separate episodes of acute congestive heart failure within a 24 consecutive 12-month period requiring acute extended physician intervention such 25 as hospitalization or emergency room treatment for 12 hours or more, separated 26 by periods of stabilization. ECF No. 12 at 4-6. However, as conceded by Plaintiff, 27 she did not stay in acute care for 12 hours or more on four documented instances 28 (she was in the emergency room for under 12 hours because she left against 1 medical advice on three of the four noted occasions). ECF No. 12 at 5-6. The 2 record thus reflects that Plaintiff does not meet the Paragraph B criteria. 3 To meet the required level of severity for Listing 4.02, Plaintiff must satisfy 4 both the Paragraph A and Paragraph B criteria. 20 C.F.R. Pt. 404, Subpt. P, App. 5 1, Listing 4.02; see Kristie B., o.b.o., Scottie J. B. v. Bisignano, 2025 WL 2544025 6 at *6 (E.D. Wash. Sept. 4, 2025). While Plaintiff has demonstrated the ALJ erred 7 with respect to his analysis of the Paragraph A criteria, see supra, this error is 8 harmless because Plaintiff has not shown she meets the Paragraph B criteria.1 An 9 ALJ’s decision will not be reversed for harmless errors. Burch, 400 F.3d at 679 10 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991); Johnson v. Shalala, 11 60 F.3d 1428, 1436 n. 9 (9th Cir. 1995) (An error is harmless when the correction 12 of that error would not alter the result); Brown-Hunter v. Colvin, 806 F.3d 487, 492 13 (9th Cir. 2015) (An ALJ’s decision should be affirmed even in the presence of 14 legal error “where that error is harmless, meaning that it is inconsequential to the 15 ultimate nondisability determination”). Accordingly, the Court finds Plaintiff is 16 not entitled to a remand on this issue. 17 B. Untimely Submitted Evidence 18 Plaintiff’s motion asserts the ALJ also erred by failing to consider a medical 19 report of Scott Miller, PA-C, that was submitted after the conclusion of the 20 administrative hearing but before the ALJ’s decision was entered. ECF No. 12 at 21 6-8. 22 The ALJ indicated there was no mention of the medical source statement of 23 PA-C Miller prior to the hearing or at the hearing when the record was closed, and 24 it was submitted after the hearing with no request for the record to be reopened and 25 with no argument regarding an exception to the five-day rule. Tr. 18. The ALJ, 26
27 1To meet a listing, Plaintiff must prove all of the specified medical criteria 28 for a listing. Kennedy, 738 F.3d at 1174 (citing Sullivan, 493 U.S. at 531). 1 finding the requirements of 20 C.F.R. § 416.1435(b) had not been met, declined to 2 admit PA-C Miller’s medical source statement. Tr. 18. 3 Where, as here, a party submits evidence less than five business days before 4 the administrative hearing, the ALJ “may decline to consider or obtain the 5 evidence” unless an exception applies. 20 C.F.R. § 416.1435(a). One exception 6 provides that an ALJ may accept the evidence if an “unusual, unexpected, or 7 unavoidable circumstance beyond [Plaintiff’s] control prevented [her] from 8 informing [the Commissioner] about or submitting the evidence earlier,” including 9 when Plaintiff “actively and diligently sought evidence from a source and the 10 evidence was not received or was received less than 5 business days prior to the 11 hearing.” 20 C.F.R. § 416.1435(b). 12 Plaintiff asserts the “unavoidable circumstance” exception applies in this 13 case because Plaintiff’s attorney was unaware of the existence of PA-C Miller’s 14 report as of the deadline and it was only received just prior to the hearing. ECF 15 No. 12 at 7; ECF No. 15 at 4. However, Plaintiff has not established active or 16 diligent pursuit of the evidence, nor has she demonstrated any other “unusual, 17 unexpected, or unavoidable circumstance beyond [her] control” that would have 18 required the ALJ to consider the late-submitted medical report of PA-C Miller. 19 See 20 C.F.R. § 416.1435(b)(3) (examples include “(i) You were seriously ill, and 20 your illness prevented you from contacting us in person, in writing, or through a 21 friend, relative, or other person; (ii) There was a death or serious illness in your 22 immediate family; (iii) Important records were destroyed or damaged by fire or 23 other accidental cause; or (iv) You actively and diligently sought evidence from a 24 source and the evidence was not received or was received less than 5 business days 25 prior to the hearing”). As argued by Defendant, passive pursuit of evidence is not 26 the type of “unavoidable circumstance” warranting an exception. ECF No. 14 at 6. 27 The Court finds that because Plaintiff has not satisfied the requirements for the 28 /// 1 “unavoidable circumstance” exception to the five-day rule, the ALJ did not err by 2 failing to consider the medical source statement of PA-C Miller. 3 C. Step Two 4 Plaintiff contends the ALJ reversibly erred by finding Plaintiff’s stroke was 5 non-severe. ECF No. 12 at 8-10; ECF No. 15 at 7-8. 6 At step two of the sequential evaluation process, Plaintiff has the burden of 7 proving she has a severe impairment. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 8 423(d)(1)(A), 416.912. In order to meet this burden, Plaintiff must furnish medical 9 and other evidence that shows her impairment is severe. 20 C.F.R. § 416.912(a). 10 The regulations, 20 C.F.R. §§ 404.1520(c), 416.920(c), provide that an impairment 11 is severe if it satisfies the duration requirement and significantly limits one’s 12 ability to perform basic work activities. See Sullivan, 493 U.S. at 525. An 13 impairment is considered non-severe if it “does not significantly limit your 14 physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521, 15 416.921. “Basic work activities” are defined as the abilities and aptitudes 16 necessary to do most jobs. See 20 C.F.R. §§ 404.1521(b), 416.921(b). 17 Step two is “a de minimis screening device [used] to dispose of groundless 18 claims,” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), and an ALJ may 19 find that a claimant lacks a medically severe impairment or combination of 20 impairments only when this conclusion is “clearly established by medical 21 evidence.” S.S.R. 85-28; Webb v. Barnhart, 433 F.3d 683, 686-687 (9th Cir. 22 2005). Applying the normal standard of review to the requirements of step two, 23 the Court must determine whether the ALJ had substantial evidence to find that the 24 medical evidence clearly established that Plaintiff did not have a medically severe 25 impairment. Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (“Despite the 26 deference usually accorded to the Secretary’s application of regulations, numerous 27 appellate courts have imposed a narrow construction upon the severity regulation 28 applied here.”); Webb, 433 F.3d at 687. 1 The ALJ discussed Plaintiff’s October 2024 stroke and properly determined 2 the impairment did not meet the durational requirement2 for a severe medically 3 determinable impairment. Tr. 20-21. Plaintiff suffered a stroke in October 2024. 4 Tr. 1153-1154. As explained by the ALJ, while Plaintiff experienced reduced 5 strength/motor activity immediately after the stroke, Tr. 1200, 1217, Plaintiff 6 improved significantly within one month, Tr. 1389-1390, and again five months 7 after the stroke when Plaintiff exhibited normal strength, Tr. 1326. Tr. 20, 30. The 8 ALJ also addressed Plaintiff’s testimony of poor memory since the stroke, noting 9 the record did not show that Plaintiff made those complaints to her treatment 10 providers except in the days immediately following the stroke, Tr. 1217, and that 11 she was never referred to rehabilitation for cognitive or other therapy. Tr. 22. As 12 noted by Defendant, Plaintiff did not complain about memory or other cognitive 13 difficulties in subsequent exams. See Tr. 1324, 1340, 1352, 1364. 14 The ALJ’s determination that Plaintiff’s stroke did not constitute a severe 15 impairment at step two of the sequential evaluation process is supported by 16 substantial evidence because the condition did not meet the durational 17 requirements for a severe medically determinable impairment: Plaintiff failed to 18 demonstrate her stroke significantly limited her ability to perform basic work 19 activities for 12 consecutive months. Consequently, Plaintiff is not entitled to a 20 remand on this issue. 21 D. Develop the Record 22 Plaintiff also contends that the ALJ erred by failing to fully and fairly 23 develop the record. ECF No. 12 at 10-13; ECF No. 15 at 8-10. 24
25 2An individual shall be considered disabled if he has an impairment which 26 can be expected to result in death or which has lasted or can be expected to last for 27 a continuous period of not less than 12 months. See 20 C.F.R. §§ 404.1509, 28 416.909; 42 U.S.C. § 423(d)(1)(A). 1 The ALJ has a special duty to develop the record fully and fairly and to 2 ensure that the claimant’s interests are considered. Tonapetyan v. Halter, 242 F.3d 3 1144, 1150 (9th Cir. 2001). The ALJ must scrupulously and conscientiously probe 4 into, inquire of, and explore all the relevant facts, being especially diligent to 5 ensure favorable as well as unfavorable facts are elicited. Higbee v. Sullivan, 975 6 F.2d 558, 561 (9th Cir. 1992). An ALJ’s duty to further develop the record is 7 triggered only when there is ambiguous evidence or when the record is inadequate 8 to allow for proper evaluation of the evidence. Tonapetyan, 242 F.3d at 1150. 9 At the administrative hearing, Plaintiff’s counsel requested an updated 10 physical consultative examination be ordered “if we’re not able to approve based 11 off the records.” Tr. 45. The ALJ specifically addressed the request by indicating 12 the medical evidence was sufficient to make a decision; Plaintiff had already failed 13 to attend two previously scheduled consultative examinations, Tr. 384, 608; and 14 such an exam could not be ordered because Plaintiff had failed to provide a 15 medical release despite her representative’s request, Tr. 43-44. Tr. 17-18. 16 The undersigned agrees with the ALJ that based on Plaintiff’s history of no- 17 shows and her failure to sign a medical release, ordering an additional consultative 18 examination may have been futile. Moreover, the administrative record was 19 sufficiently complete, containing over 1400 pages, with 16 medical exhibits. The 20 record before the ALJ was neither ambiguous nor inadequate to allow for proper 21 evaluation of the evidence. See infra (Section E(1)). Plaintiff is not entitled to a 22 remand on this issue. 23 E. Plaintiff’s Symptom Claims 24 Plaintiff contends the ALJ also erred by improperly rejecting her subjective 25 complaints. ECF No. 12 at 13-20. 26 It is the province of the ALJ to make determinations regarding a claimant’s 27 subjective statements. Andrews, 53 F.3d at 1039. However, the ALJ’s findings 28 must be supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1 1231 (9th Cir. 1990). Once the claimant produces medical evidence of an 2 underlying medical impairment, the ALJ may not discredit testimony as to the 3 severity of an impairment merely because it is unsupported by medical evidence. 4 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence 5 of malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 6 “specific, clear and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 7 1995). “General findings are insufficient: rather the ALJ must identify what 8 testimony is not credible and what evidence undermines the claimant’s 9 complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 10 1993); see also Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (“Ultimately, 11 the ‘clear and convincing’ standard requires an ALJ to show [their] work[.]”). 12 Thus, to satisfy the substantial evidence standard, the ALJ must provide specific, 13 clear, and convincing reasons which explain why the medical evidence is 14 inconsistent with the claimant’s subjective symptom testimony. Ferguson v. 15 O’Malley, 95 F.4th 1194, 1200 (9th Cir. 2024) (emphasis in original). 16 Here, the ALJ concluded Plaintiff’s medically determinable impairments 17 could reasonably be expected to cause some of the alleged symptoms; however, 18 inconsistencies undermined the weight that could be given to Plaintiff’s symptom 19 reports. Tr. 26. 20 1. Objective Medical Evidence 21 The ALJ first found that the objective medical evidence of record did not 22 support the degree of limitation alleged by Plaintiff. Tr. 26-30. 23 An ALJ may not discredit a claimant’s symptom testimony and deny 24 benefits solely because the degree of the symptoms alleged is not supported by 25 objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 26 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-347 (9th Cir. 1991); Fair v. Bowen, 27 885 F.2d 597, 601 (9th Cir. 1989); Burch, 400 F.3d at 680. However, the objective 28 medical evidence is a relevant factor, along with the medical source’s information 1 about the claimant’s pain or other symptoms, in determining the severity of a 2 claimant’s symptoms and their disabling effects. Rollins, 261 F.3d at 857; 20 3 C.F.R. § 416.929(c)(2). 4 Here, the ALJ noted Plaintiff had known cardiomyopathy and chronic 5 systolic heart failure, as well as hypertension and ongoing methamphetamine use, 6 at the time of her alleged disability onset, February 21, 2023, and her providers 7 concluded that the cardiomyopathy was methamphetamine induced, Tr. 298. Tr. 8 26. As indicated by the ALJ, Tr. 27-30, the record reflects the following: Plaintiff 9 was discharged from methadone replacement for missed appointments on May 11, 10 2023, Tr. 376; Hilary Conway, M.D., noted on July 11, 2023, that Plaintiff had not 11 taken her medications for four days because she had not picked up her refills, Tr. 12 444; by September 2023 Comprehensive Healthcare reported Plaintiff was no 13 longer attending group sessions, Tr. 420, and subsequently aborted treatment, Tr. 14 426; a physical exam by Catherine Albright, M.D., was unremarkable on 15 September 12, 2023, Tr. 517-521 (noting Plaintiff’s pregnancy was being affected 16 by her ongoing use of methamphetamine and fentanyl); on September 27, 2023, a 17 physical exam was unremarkable, including heart and lungs, and it was noted that 18 Plaintiff was still using methamphetamine and had multiple no-shows, Tr. 1395- 19 1396; on December 5, 2023, Dr. Conway noted Plaintiff reported she was still 20 using fentanyl and methamphetamine and smoking a pack of cigarettes per day and 21 had multiple no-shows for echo appointments that resulted in a canceled referral, 22 Tr. 458-459; on February 15, 2024, Plaintiff was transferred to the University of 23 Washington’s maternity intensive care unit with acute decompensated heart failure 24 and pre-eclampsia, with delivery on February 18, 2024, Tr. 622, 683-685; on 25 March 30, 2024, Plaintiff presented to the ER with chest pain, orthopnea, and 26 shortness of breath and although transport to the University of Washington was 27 arranged, Plaintiff eloped, Tr. 1069; on April 30, 2024, Plaintiff tested positive for 28 methamphetamine, Tr. 1061; on September 17, 2024, Plaintiff, on exam, was not 1 toxic appearing and her pulmonary effort, range of motion, mood, and thought 2 content were normal, Tr. 626-627; on September 26, 2024, Plaintiff again 3 presented to the ER with cardiac related symptoms and discharged against medical 4 advice, Tr. 1265; on October 2, 2024, Plaintiff presented for a follow-up after the 5 ER visit and it was noted she was using methamphetamine daily but, on exam, she 6 was not toxic appearing and her cardiovascular rate and rhythm, pulmonary effort, 7 range of motion, mood, and thought content were normal, Tr. 629-631; on October 8 3, 2024, Plaintiff was taken to the ER with altered mental state (subsequently 9 determined to be stroke), Tr. 1153-1154, and it was noted she tested positive for 10 methamphetamine, Tr. 1229; on October 18, 2024, Plaintiff presented for a follow- 11 up for the October 3, 2024 event, and, on exam, she was not toxic appearing and 12 her cardiovascular rate and rhythm, pulmonary effort, range of motion, mood, and 13 thought content were normal, Tr. 633-634; on November 6, 2024, cardiologist Paul 14 Hanna, M.D., indicated Plaintiff reported daily methamphetamine use but planned 15 to enter inpatient treatment and had an unremarkable exam, with normal heart 16 findings, no lower extremity edema, and normal mood and affect, Tr. 1376-1380; 17 Dr. Hanna discussed the benefit of cessation of methamphetamine use, noting it 18 was likely the etiology of her cardiomyopathy and that her ejection fraction may 19 improve with abstinence, Tr. 1383; methamphetamine use was again noted on 20 January 16, 2025, Tr. 1364, but, on February 19, 2025, Plaintiff reported no 21 methamphetamine use since January 16, 2025, and that her blood pressure had 22 been “normal,” Tr. 1340; and, on March 4, 2025, Plaintiff followed up with PA-C 23 Miller, reporting she had not been 100% compliant with her heart medications, Tr. 24 1324, but, on exam, her heart and lung findings were unremarkable, there was no 25 edema in her lower extremities, sensory and strength were equal bilaterally, and 26 her affect and mood were appropriate, Tr. 1326. In addition, state agency 27 reviewing physicians, Ruth Childs, M.D., Tr. 79-81 (June 12, 2023), and Denise 28 /// 1 Trowbridge, M.D., Tr. 87-90 (February 24, 2024), noted Plaintiff’s history and 2 opined Plaintiff’s medical issues did not result in disabling limitations. 3 The Court finds the objective medical evidence of record, as discussed 4 above, shows Plaintiff had impairments and restrictions, but it does not support the 5 degree of limitation alleged by Plaintiff in this case, and, therefore, this was a 6 valid, clear and convincing reason to discount Plaintiff’s subjective complaints. 7 2. Work History 8 The ALJ indicated that, inconsistent with Plaintiff’s claim of debilitating 9 limitations, Plaintiff stated she last worked about a year prior to the administrative 10 hearing, washing dishes at a restaurant for a couple of weeks. Tr. 30. Employment 11 performed “during any period” of claimed disability may be probative of a 12 claimant’s ability to work at the substantial gainful activity level. 20 C.F.R. §§ 13 404.1571, 416.971; see Bray, 554 F.3d at 1227 (the ability to perform part-time 14 work can be considered in assessing credibility). 15 The ALJ also noted Plaintiff initially testified she had not continued in that 16 job because of transportation issues, not because of her impairments. Tr. 30 17 referencing Tr. 54-55. The inability to work due to nondisability factors is a valid 18 basis for rejecting a claimant’s credibility. Bruton v. Massanari, 268 F.3d 824, 19 828 (9th Cir. 2001) (stating that in making a credibility determination, the ALJ did 20 not err by considering that claimant left his job because he was laid off, rather than 21 because he was injured). 22 The ALJ properly discounted Plaintiff’s credibility on the basis that she 23 performed work during the period she alleged disability and stopped working for 24 reasons unrelated to her alleged disabling impairments. 25 3. Inconsistencies 26 The ALJ also discounted Plaintiff’s symptom claims based on 27 inconsistencies. Tr. 30-31. 28 /// 1 An ALJ may consider inconsistencies in a claimant’s testimony or 2 inconsistencies between a claimant’s testimony and conduct when assessing 3 subjective complaints. Orn, 495 F.3d at 636; Thomas v. Barnhart, 278 F.3d 947, 4 958-959 (9th Cir. 2002) (inconsistencies in a claimant’s testimony may be used to 5 discredit subjective complaints); Fair, 885 F.2d at 604 n.5 (an ALJ can reject pain 6 testimony based on contradictions in a plaintiff’s testimony). 7 a. Exhaustion 8 The ALJ found that Plaintiff’s allegation of inability to continue to work 9 based on exhaustion was unsupported. Tr. 30. Although the ALJ agreed that 10 Plaintiff could experience exhaustion during exacerbations in cardiac symptoms, 11 the ALJ found insufficient evidence of exhaustion to the degree alleged, noting 12 Drs. Childs and Trowbridge found a lack of fatigue, Plaintiff did not follow up on 13 her alleged fatigue/exhaustion complaint with providers (appearing fatigued only 14 when withdrawing from methamphetamine or immediately after the stroke or 15 short-term illness), and Plaintiff was often described as alert when seen by 16 providers. Tr. 30. 17 b. Medication Side-Effects 18 The ALJ additionally noted Plaintiff testified that her medications 19 sometimes caused dizziness/lightheadedness, shortness of breath, or fluid retention. 20 Tr. 30. However, the record reflects Plaintiff had denied these medication side- 21 effects to treating providers who were in a position to help her with her situation 22 and only claimed dizziness in the weeks after the stroke and only showed edema at 23 some visits, including when pregnant. 24 c. Mental Health Limitations 25 The ALJ also indicated Plaintiff’s assertions of mental health limitations 26 were inconsistent with her observed functioning. Tr. 31. While Plaintiff argues 27 the ALJ “failed to explain what parts of the record contradicted what portions of 28 her testimony,” the ALJ specifically referred to his detailed discussion at step two. 1 Tr. 31. At step two, the ALJ held that Plaintiff has been diagnosed with mental 2 impairments, but she did not testify to problems related to a mental condition, aside 3 from asserting a memory issue since the October 2024 stroke. Tr. 21. The ALJ 4 further explained, as discussed above, that Plaintiff’s stroke/memory complaints 5 were not made to her treatment providers, except in the days immediately 6 following the stroke, and that she was never referred to rehabilitation for cognitive 7 or other therapy and did not complain about memory or other cognitive difficulties 8 in subsequent exams. Tr. 22. 9 The ALJ’s reference to the above inconsistencies is supported by substantial 10 evidence, and this was an additional clear and convincing reason to discount 11 Plaintiff’s symptom claims. 12 The ALJ is responsible for reviewing the evidence and resolving conflicts or 13 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 14 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 15 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 16 determining whether the ALJ’s decision is supported by substantial evidence and 17 may not substitute its own judgment for that of the ALJ even if it might justifiably 18 have reached a different result upon de novo review. 42 U.S.C. § 405(g). After 19 reviewing the record, and based on the foregoing, the Court finds that the ALJ 20 provided clear and convincing reasons, which are fully supported by the record, for 21 finding Plaintiff’s symptom allegations were not entirely credible in this case. 22 Plaintiff is not entitled to a remand on this issue. 23 CONCLUSION 24 Having reviewed the record and the ALJ’s findings, the Court finds the 25 ALJ’s decision is supported by substantial evidence and free of legal error. 26 Accordingly, IT IS HEREBY ORDERED: 27 1. Defendant’s motion to affirm, ECF No. 14, is GRANTED. 28 2. Plaintiff’s motion to reverse, ECF No. 12, is DENIED. 1 IT IS SO ORDERED. The District Court Executive shall file this Order and provide copies to counsel. Judgment shall be entered for Defendant and the file shall be CLOSED. 4 DATED July 9, 2026. oe gs ALEXANDER C. EKSTROM
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