Leech v. Bisignano

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 6, 2025
• Docket: 24-5218
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MATTHEW M. LEECH, No. 24-5218 D.C. No. Plaintiff - Appellant, 3:23-cv-05639-GJL v. MEMORANDUM* FRANK BISIGNANO, Commissioner of Social Security,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Washington Grady J. Leupold, Magistrate Judge, Presiding

Submitted November 4, 2025** Portland, Oregon

Before: M. SMITH, NGUYEN, and H.A. THOMAS, Circuit Judges. Matthew M. Leech appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of his application for disability insurance

benefits. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1. We held in Cody v. Kijakazi that a claimant succeeding on an

Appointments Clause challenge was entitled to an “independent decision issued by

a different” Administrative Law Judge (“ALJ”) that was not “‘tainted’ by a pre-

ratification ALJ decision.” 48 F.4th 956, 963 (9th Cir. 2022). Only with a

reassignment will the claimant receive a “fresh look” and “the new hearing to

which he is entitled.” Id. at 962 (citation modified).

Because Cody’s requirement of de novo adjudication allows the new ALJ to

exclude the testimony taken by the unconstitutionally appointed ALJ, ALJ David

Johnson did not err by excluding Leech’s testimony from the 2016 and 2017

hearings before ALJ Allen Erickson. Here, ALJ Johnson allowed Leech to testify

at two new hearings: an initial hearing in April 2022 and a supplemental hearing in

October 2022. This provided Leech with the “fresh look” and “new hearing” that

Cody contemplates for a claimant with a successful Appointments Clause

challenge. See id. As the district court noted below, “ALJs take an active role in

questioning Social Security claimants during their hearing” so “[p]reventing the

new ALJ from considering testimony which may be tainted by an Appointments

Clause violation appears consistent with the goal of providing a truly ‘fresh look’

at the matter.”

2. When evaluating disability applications filed before March 27, 2017,

the ALJ must explain the weight he gave to prior administrative medical findings

2 24-5218 and medical opinions. See 20 C.F.R. §§ 404.1527, 416.927. An ALJ “may give

less weight to a VA disability rating if he gives persuasive, specific, valid reasons

for doing so that are supported by the record.” Turner v. Comm’r of Soc. Sec., 613

F.3d 1217, 1225 (9th Cir. 2010) (quoting McCartey v. Massanari, 298 F.3d 1072,

1076 (9th Cir. 2002), superseded by regulation 20 C.F.R. §§ 404.1504,

404.1520(b)(c)(1)).

Here, the ALJ gave the VA rating of 100% service-connected disability

“only some weight” because it “fails to make a distinction between [Leech’s]

functioning when he is taking his medications and not taking his medications as

directed/prescribed.” The ALJ cited medical evidence that Leech’s seizures were

well-controlled when his medications were at therapeutic levels. See Wellington v.

Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“[E]vidence of medical treatment

successfully relieving symptoms can undermine a claim of disability.”). And the

ALJ cited medical evidence showing that many of Leech’s seizures occurred

during periods when he did not take his medications as prescribed. The ALJ also

found that Leech’s condition improved with the vagus nerve stimulator placement,

which undermined the VA’s rating. See Wellington, 878 F.3d at 876. Because

these were “persuasive, specific, [and] valid reasons . . . supported by the record,”

the ALJ properly gave less weight to the VA’s disability rating. See Turner, 613

F.3d at 1225.

3 24-5218 3. “If a treating or examining doctor’s opinion is contradicted by another

doctor’s opinion, an ALJ may only reject it by providing specific and legitimate

reasons that are supported by substantial evidence.” Garrison v. Colvin, 759 F.3d

995, 1012 (9th Cir. 2014) (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,

1198 (9th Cir. 2008)).

Here, Dr. Lisa Ho was an examining doctor and the ALJ gave her opinion

little weight. Dr. Lauren Frey’s opinion contradicted Dr. Ho’s opinion, however,

and substantial evidence supported the ALJ’s finding that Dr. Ho’s opinion was

“inconsistent with other evidence” regarding Leech’s seizures and back pain. See

Garrison, 759 F.3d at 1012. Dr. Ho opined that Leech’s spine condition limited

him to sedentary occupations and that he should avoid heavy lifting, but this

statement is inconsistent with Leech’s “unremarkable treatment history for back

pain, as well as normal physical examinations showing intact gait and neurological

functioning of the extremities.” The ALJ cited evidence that Leech had only

conservative treatment for his back pain, showed unremarkable gait at his physical

examinations, and demonstrated full range of motion, strength, sensation, and

reflexes throughout his extremities.

Dr. Ho also opined that Leech’s seizures are “unpredictable” and “not

controlled with medication,” but these statements are inconsistent with the

evidence that Leech had “control of [his] seizures with appropriate medication

4 24-5218 use.” The ALJ cited evidence in the record that many of Leech’s seizures occurred

during periods when Leech did not take his medications as prescribed. Because

these are “specific and legitimate reasons . . . supported by substantial evidence,”

the ALJ properly rejected Dr. Ho’s opinion. See Garrison, 759 F.3d at 1012.

Dr. Philip Gibson was also an examining psychologist, and the ALJ gave his

opinion little weight. Dr. Frey’s opinion contradicted Dr. Gibson’s opinion,

however, and substantial evidence supported the ALJ’s finding that Dr. Gibson’s

opinion was “inconsistent with the overall medical evidence” regarding Leech’s

mental health. See Garrison, 759 F.3d at 1012. Dr. Gibson opined that Leech’s

recent memory is “severely impaired” and that Leech could sustain concentration

for about only thirty minutes at a time, had limited social interaction, and had

limited adaptive skills. But the ALJ properly determined that this is inconsistent

with the record where Leech “endorsed only acute mental health symptoms at

times, primarily due to his infant son’s passing.” The ALJ found that Leech

otherwise denied or failed to mention experiencing mental health symptoms to

providers, and did not receive any treatment for his mental health concerns during

the relevant period. The ALJ further cited Leech’s normal presentation and intact

comprehension during treatment visits. Because these are “specific and legitimate

reasons . . . supported by substantial evidence,” the ALJ properly rejected Dr.

Gibson’s opinion. See Garrison, 759 F.3d at 1012.

5 24-5218 4. When evaluating opinions from non-acceptable medical sources, an

ALJ “may expressly disregard lay testimony if the ALJ gives reasons germane to

each witness for doing so.” Turner, 613 F.3d at 1224 (citation modified). The

ALJ gave nurse practitioner1 Collette Evrard’s opinion partial weight because it

was “somewhat consistent with the overall medical evidence” but not consistent

with medical evidence regarding Leech’s seizure condition. The ALJ cited

medical evidence showing Leech’s seizures were well-controlled during periods

when his medications were at therapeutic levels. See Wellington, 878 F.3d at 876.

And the ALJ cited medical evidence showing that many of Leech’s seizures

occurred during periods when he did not take his medications as prescribed.

The ALJ also found that Evrard’s opinion regarding Leech’s functional

limitations and level of absenteeism “appear[ed] to be based on [Leech’s]

subjective reports” because she was “unable to answer multiple questions given her

lack of information regarding [Leech’s] functional abilities.” And the ALJ found

that Evrard’s opinion was inconsistent with exam findings showing Leech had

normal gait, range of motion, and neurological functioning of the extremities. By

providing these germane reasons, the ALJ properly rejected Evrard’s opinion. See

Turner, 613 F.3d at 1224.

1 Nurse practitioners are not defined as an “[a]cceptable medical source” under 20 C.F.R. § 404.1502(a) so Evrard’s opinion is treated as lay testimony.

6 24-5218 Regarding Melissa Leech’s lay observations about her former spouse, the

ALJ only gave them partial weight due to inconsistencies with the record. The

ALJ found that Ms. Leech’s statements “failed to make a distinction regarding the

frequency of [Leech’s] episodes when taking medications at therapeutic levels.”

Contrary to Ms. Leech’s observations, the ALJ found that Leech’s seizures were

well-controlled during periods when his medications were at therapeutic levels,

and that many of Leech’s seizures occurred during periods when he did not take

his medications as prescribed. And the ALJ cited evidence that Leech had no side

effects from his seizure medications. The ALJ also found that Ms. Leech’s

statements regarding Leech’s physical functional limitations “[we]re not entirely

consistent with his normal physical examination findings.” By providing the

above germane reasons, the ALJ also properly rejected Ms. Leech’s lay

observations. See Turner, 613 F.3d at 1224.

5. When there is no evidence of malingering, the ALJ must provide

“specific, clear, and convincing reasons” for rejecting the claimant’s subjective

symptoms testimony. Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017).

“Contradiction with the medical record is a sufficient basis for rejecting the

claimant’s subjective testimony.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir.

2022) (internal citation omitted). Here, the ALJ determined that Leech’s

impairments “could reasonably be expected to cause some of the alleged symptoms

7 24-5218 to some degree,” but the ALJ discounted Leech’s symptom testimony because of

inconsistencies with the medical record.

Regarding Leech’s seizure testimony, the ALJ found that Leech’s seizures

were well-controlled when his medications were at therapeutic levels. See

Wellington, 878 F.3d at 876. The ALJ cited medical evidence showing that many

of Leech’s seizures occurred during periods when he did not take his medications

as prescribed. Because Leech “fail[ed] to follow prescribed treatment” for his

seizures at times, the ALJ reasonably discounted his symptom testimony. See Orn

v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). The ALJ also found that Leech’s

vagus nerve stimulator further lessened his seizures, which undermined his

symptom testimony. See Wellington, 878 F.3d at 876. And the ALJ found that

although Leech testified that his seizure medications caused extreme drowsiness

and memory loss, the record showed that Leech reported his medications did not

cause any side-effects during the relevant period.

Regarding Leech’s back pain testimony, the ALJ cited imaging studies of

Leech’s lumbar spine which showed benign findings. See Smartt, 53 F.4th at 499.

And the ALJ cited medical records showing that Leech’s back pain was managed

effectively with “minimal conservative treatment.” See Parra v. Astrue, 481 F.3d

742, 751 (9th Cir. 2007) (“[E]vidence of ‘conservative treatment’ is sufficient to

discount a claimant’s testimony regarding severity of an impairment.” (internal

8 24-5218 citation omitted)). Specifically, the ALJ cited minimal physical therapy sessions, a

few injections, and cyclobenzaprine.

Regarding Leech’s PTSD testimony, the ALJ concluded that the medical

record did not support Leech’s claims of functional limitations due to mental

health problems. See Smartt, 53 F.4th at 499. Although Leech reported worsening

PTSD symptoms, the ALJ found that Leech only “endorsed minimal PTSD

symptoms during the consultative psychological examination.” Leech often denied

or failed to mention experiencing any mental health issues during his

appointments. The ALJ also found that Leech “did not receive any treatment for

his mental health concerns during the relevant period, which includes declining

mental health referrals and failing to follow-through with mental health treatment

after the initial consultation.” Because declining these referrals and failing to

follow through constituted “fail[ure] to seek treatment,” the ALJ reasonably

discounted Leech’s symptom testimony. See Orn, 495 F.3d at 638. In sum, the

ALJ provided clear, convincing reasons to discount Leech’s testimony regarding

his seizures, back pain, and PTSD. See Trevizo, 871 F.3d at 679; Smartt, 53 F.4th

at 499 (holding that the standard is “whether the ALJ’s rationale is clear enough

that it has the power to convince”).

6. Because the ALJ did not err in excluding Leech’s testimony from the

2016 and 2017 hearings or in discounting the VA’s disability rating, certain

9 24-5218 medical opinions, Leech’s subjective symptom testimony, and Ms. Leech’s lay

opinions, the ALJ did not err in determining Leech’s residual functional capacity

and subsequently that Leech could perform his past relevant work.

AFFIRMED.

10 24-5218