UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA CASE NO. 3:19-cv-05437-GJL Plaintiff, v. SOCIAL SECURITY DISABILITY COMMISSIONER OF SOCIAL Defendant.
This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local Magistrate Judge Rule 13. See also Consent to Proceed Before a United States Magistrate Judge, Dkt. 3. This matter has been fully briefed. See Dkts. 27, 32, 36. After considering the administrative record (AR) and all memoranda, the Court concludes the Administrative Law Judge (ALJ) did not err in finding Plaintiff not disabled prior to July 1, 2019. The Court accordingly AFFIRMS the Commissioner's final decision with respect to that period. However, the Court finds the ALJ erred in finding Plaintiff not disabled from July 1, 2019, through the date of Plaintiff’s 55th birthday in November 2021. The Court accordingly REVERSES and REMANDS this matter for further proceedings with respect to that period. This case concerns two consolidated applications for Supplemental Security Income (SSI) benefits and Disability Insurance Benefits (DIB). See AR 628. The first application was filed in 2007 and was denied initially and following reconsideration. See AR 750–53. After a
hearing, ALJ Gary Elliot issued a decision finding Plaintiff not disabled in June 2010. AR 58–77. Plaintiff appealed to the U.S. District Court for the District of Oregon (which at that time enveloped his residence), and, on appeal, Judge Michael S. Simon reversed ALJ Elliot’s decision in July 2014. See AR 598 (duplicated at AR 807–34 and AR 1007–31). In 2011, after ALJ Elliot’s decision but before Judge Simon’s reversal, Plaintiff filed a second application which was denied initially and following reconsideration. See AR 78–92. After a hearing (AR 31–57), ALJ Marilyn S. Mauer issued a decision finding Plaintiff not disabled in June 2014 (AR 8–21) which was reversed by Judge Simon in February 2016 (AR 846–71). In July 2015, while Plaintiff’s appeal of ALJ Mauer’s decision was pending before Judge
Simon (see AR 875), ALJ Ted Neiswanger issued another unfavorable decision on Plaintiff’s first application. AR 756–80. After Judge Simon’s second decision was issued, the Appeals Council (AC) vacated ALJ Neiswanger’s decision and consolidated the two applications. See AR 781–87. In March 2018, ALJ S. Andrew Grace issued another unfavorable decision on Plaintiff’s consolidated applications. AR 908–51. Plaintiff filed a Complaint in this Court seeking judicial review of ALJ Grace’s decision on May 22, 2019. Dkt. 5. After Plaintiff filed his Complaint but before Defendant filed the AR, the Court granted the parties’ stipulated motion (Dkt. 12) for the case to be remanded pursuant to sentence six of 42 U.S.C. § 405(g). Dkt. 13. The Court retained jurisdiction while the
Commissioner took further administrative action. See Shalala v. Schaefer, 509 U.S. 292, 297, 299–300 (1993). On remand, ALJ Preston Mitchell issued an unfavorable decision on Plaintiff’s claim in March 2021. AR 958–98. The AC vacated ALJ Mitchell’s decision in January 2023. AR 903–05.
ALJ Jeffrey Raeber (“the ALJ”) held an additional hearing on Plaintiff’s claim on April 5, 2024. AR 689–749. On May 6, 2024, he issued a decision finding Plaintiff disabled after his 55th birthday (in November 2021), but not disabled prior to that date. AR 625–88. After the ALJ’s April 2024 decision, Plaintiff did not file exceptions with the AC, making the decision the final decision of the Commissioner subject to judicial review. See 20 C.F.R. § 404.984; Dkt. 15. Pursuant to the parties’ stipulated motion (Dkt. 15), this Court reopened the case on October 15, 2024. Dkt. 16.1 Defendant filed the sealed AR in this matter on October 29, 2024. Dkt. 17. Plaintiff was born in 1966 and has a limited education. AR 672–73. The ALJ considered
whether Plaintiff was disabled from his alleged onset date of January 1, 2003, through May 6, 2024, the date of the decision. See AR 628, 677. The ALJ found that, between July 1, 2012, and June 30, 2019, there was no 12-month period in which Plaintiff had not engaged in substantial 1 This Court’s sentence six remand order specifically directed that Plaintiff “may seek judicial review by reinstating this case rather than by filing a new complaint.” Dkt. 13 at 2. Although Plaintiff challenges a different ALJ decision than that listed in his Complaint and seeks relief as to a new time period (compare Dkt. 5 with Dkt. 27), Defendant raises no argument challenging this claim as framed (see Dkt. 32) and the Court therefore finds the Complaint was constructively amended to seek such relief. See Fed. R. Civ. P. 15(b)(2) (“When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings.”); Lone Star Sec. & Video, Inc. v. City of L.A., 584 F.3d 1232, 1235 n.2 (9th Cir. 2009) (permitting consideration of claim raised for first time in motion for summary judgment under Rule 15(b)(2) where “the parties fully argued the merits of the claim” and the Defendant “did not object to [Plaintiff’s] failure to raise the claim in its complaint”). Although Plaintiff moved outside the Western District of Washington after he filed the Complaint (see AR 1485), this does not render the Court’s venue improper, as Plaintiff lived in the district at the time the action was filed (see 42 U.S.C. § 405(g)) and Defendant did not argue otherwise, see Weinberger v. Salfi, 422 U.S. 749, 763–64 (1975) (venue provision of 42 U.S.C. § 405(g) waivable). gainful activity, and therefore found Plaintiff not disabled during that period (at step one of the sequential evaluation process). AR 633–36; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1509. The ALJ found that, between January 1, 2003, and October 31, 2005, Plaintiff had no medically determinable impairments, and therefore found (at step two) Plaintiff was not disabled during
that period. AR 637–38; see also 20 C.F.R. § 404.1520(a)(4)(ii). The ALJ proceeded beyond step two to consider whether Plaintiff was disabled during two periods: (1) from November 1, 2005, through June 30, 2012, and (2) from July 1, 2019, through the date of the decision, May 6, 2024. AR 638. The ALJ found Plaintiff had the following severe medically determinable impairments during the first period: degenerative disc disease (DDD) of the cervical spine and of the lumbar spine; depressive disorder, variously diagnosed as major depressive disorder, depressive- type schizoaffective disorder, mood disorder NOS (Not Otherwise Specified), and adjustment disorder with depressed mood; obsessive-compulsive disorder (OCD); personality disorder NOS; and attention-deficit hyperactivity disorder (ADHD).
AR 638. The ALJ found Plaintiff had the following severe medically determinable impairments during the second period: DDD of the cervical spine with stenosis, DDD of the lumbar spine, osteoarthritis of the left hip, schizoaffective disorder, ADHD, OCD, personality disorder, and generalized anxiety disorder. Id. The ALJ found Plaintiff had the following Residual Functional Capacity (RFC) during the first period: to perform medium work, as defined in 20 CFR 404.1567(c) and 416.967(c), except that he was further limited in the following nonexertional respects: - Could never climb ladders, ropes, or scaffolds but could occasionally climb ramps and stairs; could frequently balance, could occasionally stoop, crouch, and kneel, but could never crawl; - Could occasionally reach overhead bilaterally, but could frequently reach in all other directions bilaterally; - Could never use moving machinery, be exposed to unprotected heights, or perform commercial driving; and
- Could understand and remember simple instructions, could not perform work requiring a specific production rate, such as assembly-line work, or hourly quotas, could have occasional interaction with the public and with coworkers, and could deal with occasional changes in a routine work setting.
AR 644. Based on this RFC, the ALJ found Plaintiff was not disabled during this first period because he could perform work existing in significant numbers in the national economy. See AR 674–75. For the second period, the ALJ found Plaintiff could perform light work with the same nonexertional limitations listed in the first period’s RFC, but added that Plaintiff could frequently handle and finger. AR 665. Based on the RFC assessments, the ALJ found Plaintiff could perform work existing in significant numbers in the national economy until he reached the age of 55 in November 2021, and found Plaintiff disabled on and after that date. See AR 674–75. Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of benefits if, and only if, the ALJ’s findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). In his opening brief, Plaintiff contends the ALJ erred in (1) assessing his subjective symptom testimony, (2) considering some of the medical opinion evidence, (3) considering two non-medical source statements, and (4) failing to properly apply the trial work period rules to his period of substantial gainful activity. Dkt. 27.2 Plaintiff also contends the medical evidence compels a finding that he is further limited than the ALJ found. See Dkt. 27 at 4–14. The Court addresses Plaintiff’s challenges to the ALJ’s assessment of the medical evidence in its discussion of Plaintiff’s subjective testimony.
Plaintiff does not challenge the ALJ’s finding that he had no medically determinable impairments before November 1, 2005. See Dkt. 27. Aside from his final argument concerning trial work periods, he does not challenge the ALJ’s finding that he engaged in substantial gainful activity precluding a finding of disability from November 1, 2012, through June 30, 2019. See id. Plaintiff’s first three arguments therefore concern the two relevant periods for which the ALJ proceeded beyond step two of the sequential evaluation process and found Plaintiff not disabled: (1) November 1, 2005, through June 30, 2012, and (2) July 1, 2019, through November 2021 (when Plaintiff turned 55). A. Subjective Symptom Testimony Plaintiff contends the ALJ failed to provide specific, clear, and convincing reasons for
rejecting his subjective symptom testimony (Dkt. 27 at 15), as he was required to do, Garrison v. Colvin, 759 F.3d 995, 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); AR 646, 666. 2 Plaintiff also contends the ALJ's RFC assessment was erroneous because it did not include limitations supported by the evidence he contends was improperly evaluated. Dkt. 27 at 23–24. As will be discussed, the Court finds the ALJ’s errors in assessing the medical evidence discussed herein render the RFC assessment inadequately supported for the second relevant period but the Court finds no error as to the first relevant period. 1. First Relevant Period (Nov. 2005 – June 2012) Plaintiff alleged that, during the first relevant period, he had difficulties concentrating, depression prohibiting social interaction, severe anxiety, and anger issues. See AR 44, 337–38, 1759, 1791–92, 1837–38.3
The ALJ properly found Plaintiff’s testimony inconsistent with the objective medical evidence. “When objective medical evidence in the record is inconsistent with the claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (emphasis in original). The ALJ acknowledged that Plaintiff presented with some abnormal mental health symptoms throughout the relevant period. See AR 651–54. As the ALJ noted, in November 2005, Plaintiff presented to an emergency room for mental health symptoms and was prescribed psychiatric medication. See AR 651, 2105–06. But Plaintiff’s baseline functioning on medications, the ALJ found, was relatively normal and did not require further limitations. See AR 651–53. “Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI
benefits.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). This finding was supported by substantial evidence. Plaintiff had consultative examinations in 2008 and 2011 which revealed normal or nearly-normal results in his attention, memory, and alertness and responsiveness, and found he presented with only a mildly depressed mood. See AR 652–53, 2236–40 (2008), 404–11 (2011). Consistent with these findings, Plaintiff endorsed his depression and anxiety improved significantly from medication. See AR 651–52, 394, 2164. As the ALJ noted, Plaintiff sought little treatment from 2005 to 2012 and nearly all
3 Plaintiff also testified to some physical issues during this period, but Plaintiff has raised no argument challenging the ALJ’s findings that his testimony about his physical symptoms were inconsistent with the medical evidence. See AR 646–50; Dkt. the mental treatment notes reflecting significant abnormal symptoms during this period occurred in the context of Plaintiff not using his medications. See AR 652–54, 2164–67, 2203–04. True, Plaintiff may not have sought treatment due to financial issues during this time period. See AR 494. But even assuming the ALJ could not make adverse inferences from the
lack of treatment, the ALJ’s assessment of the medical evidence was a rational one because there is no evidence from this time period suggesting severe mental symptoms when Plaintiff was compliant with his prescribed medications. See Warre, 439 F.3d at 1006 (citing Burnside v. Bowen, 845 F.2d 587, 592 (5th Cir. 1988) (affirming denial of SSI application and declining to hold that persons are entitled to benefits if they “can prove no disability but only seek benefits as a means of affording care that might conceivably prevent a disability”)). Most of the abnormal results to which Plaintiff cites are from treatment notes from May 2012 through December 2013. See Dkt. 27 at 8–12. And most of this evidence falls outside the first relevant period, so it does little to cast doubt upon the ALJ’s RFC assessment for that period. Cf. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008)
(“Medical opinions that predate the alleged onset of disability are of limited relevance.”). Even so, the ALJ did assess this evidence and properly found it did not require further limitations. AR 653–54. Plaintiff reported auditory hallucinations in May 2012 (AR 479) but was subsequently prescribed further medication which, he reported, greatly reduced or eliminated the frequency of such issues (AR 491–92). AR 653. He had an abnormal consultative examination and several other appointments noting significant mental health symptoms which Plaintiff highlights (AR 464–66, 486), but as the ALJ noted (AR 653–54), he was not compliant with medications at this time. Similarly, although Plaintiff reported concentration difficulties during this time and was diagnosed with ADHD, he reported significant improvement from medication.
See AR 653–54, 476. Thus, the ALJ reasonably assessed the medical evidence pertaining to Plaintiff’s mental impairments during the first relevant period. Additionally, the ALJ properly discounted Plaintiff’s testimony because it was inconsistent with his activities of daily living during the first relevant period. See AR 655; Orn v.
Astrue, 495, F.3d 623, 639 (9th Cir. 2007) (activities of daily living serve as a valid reason for rejecting testimony where inconsistent with that testimony). As the ALJ noted, Plaintiff served as a caregiver for his mother during the first relevant period, which involved all-day care and supervision, chores, and significant yardwork. See AR 655. The ALJ could reasonably find such work inconsistent with Plaintiff’s claims of work-prohibiting mental symptoms. In sum, the ALJ properly assessed Plaintiff’s subjective symptom testimony during the first relevant period. 2. Second Relevant Period (July 2019 – November 2021) Plaintiff alleged that, during the second relevant period and following a workplace injury in 2019 resulting in hernias, he experienced difficulty standing for long periods of time without
rest; difficulty walking longer distances (a mile or more); and suffered from neck pain following prolonged periods of sitting. See AR 718, 722–23. The ALJ described some of the medical evidence related to Plaintiff’s physical allegations during the second relevant period. See AR 667–69. As the ALJ summarized, after Plaintiff’s injury, examinations revealed some abnormal results (including x-rays showing cysts, osteoarthritis, hernias, stenosis, and cervical radiculopathy) but examinations also regularly revealed full strength, mildly impaired range of motion, and normal gait. See id. From March 2020 through September 2022, he received no treatment, and subsequent treatment focused on newly developed ankle pain. See id.
Unlike his findings with respect to the first relevant period, the ALJ did not adequately explain how this evidence was inconsistent with Plaintiff’s testimony. Instead, the ALJ stated “no evidence supports limitations from low back and left hip pain in standing and walking, or in sitting, for continuous periods,” and “the foregoing objective medical evidence and limited to no
treatment pursued support no greater exertional, postural, or other physical work-related limitations.” AR 668. However, a lack of corroborating evidence is not a clear and convincing reason for rejecting Plaintiff’s testimony about the extent of his symptoms. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Moreover, “to satisfy the substantial evidence standard, the ALJ must . . . explain why the medical evidence is inconsistent with the claimant's subjective symptom testimony.” Ferguson v. O'Malley, 95 F.4th 1194, 1200 (9th Cir. 2024) (emphasis in original); see also Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (“[The ALJ] simply stated her non-credibility conclusion and then summarized the medical evidence supporting her RFC determination. This is not the sort of explanation or the kind of ‘specific reasons’ we must have
in order to review the ALJ's decision meaningfully, so that we may ensure that the claimant's testimony was not arbitrarily discredited.”). The ALJ did not do so here. Nor is the objective evidence so clearly inconsistent with Plaintiff’s testimony that the Court can reasonably infer such an inconsistency from the ALJ’s decision. In addition to abnormal findings both on examination and in x-rays identified by the ALJ (see AR 668–69), physical therapy notes from early 2020 also identified stiffness, pain, tenderness, reduced range of motion, and other difficulties (see AR 3616, 3629, 3632, 3635, 3639, 3646). Although there were some findings of normal gait (see AR 668), this provides little probative evidence of the
length of time in which Plaintiff can walk or stand, and provides no evidence contradicting his sitting-related allegations. Finally, Plaintiff’s lack of treatment was not a proper basis to reject Plaintiff’s testimony because, as the ALJ noted and credited (see AR 668), Plaintiff explained this lack of treatment as
being a result of the COVID-19 pandemic and his lack of insurance. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (conservative treatment not proper basis for rejecting testimony “where the claimant has a good reason for not seeking more aggressive treatment”). In sum, the ALJ failed to give specific, clear, and convincing reasons for rejecting Plaintiff’s testimony about the extent of his limitations after July 1, 2019. Defendant does not contest such an error requires reversal, and the Court reverses. See Ferguson v. O'Malley, 95 F.4th 1195, 1204 (9th Cir. 2024) (“The Commissioner does not contend that the ALJ's error was harmless. Consequently, we reverse the judgment …”). B. Medical Opinion Evidence
Plaintiff “does not object” to most of the ALJ’s assessment of the medical opinion evidence, with two exceptions. See Dkt. 17 at 14–15. First, Plaintiff contends the ALJ improperly assessed the opinion of Scott Alvord, MD, who opined in August 2012 that Plaintiff could work only in structured and supported work settings. Dkt. 27 at 14; AR 587. The ALJ found this opinion conflicted with evidence that Plaintiff was able to meet the mental demands of work activity in settings that were not structured or supported. AR 660; AR 636 (reviewing work history, including working as a ride operator sporadically from 2008 to 2010); AR 707–08 (same); AR 633 (Plaintiff started substantial gainful activity two months prior to Dr. Alvord’s opinion); see also AR 616 (Judge Simon upholding adverse subjective testimony
determination based on part-time work history). Although Plaintiff’s work history before July 2012 was mostly seasonal, the ALJ could nonetheless assume it was not structured or supported. Such an inconsistency is a proper basis on which to reject Dr. Alvord’s opinion. See Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (“A conflict between [an opinion] and a claimant's
activity level is a specific and legitimate reason for rejecting the opinion.”). Second, Plaintiff argues the ALJ erred in rejecting the opinion of Eunice Chen, MD, and the similar statement of Andrea Simmons, ARNP. Dkt. 27 at 15. Both sources opined in June 2019 that Plaintiff would be limited to occasional lifting and carrying up to 10 pounds. See AR 3443, 3471. However, both sources indicated those limitations only applied from June 2019 through July 2019 (NP Simmons) or August 2019 (Dr. Chen). See id. The ALJ properly rejected the opinions because they opined limitations for only a period of one to two months following Plaintiff’s May 2019 work injury. See AR 671, 667–68 (discussing improvement post-injury). For this reason, the ALJ could properly find the opinions unhelpful in assessing the extent of Plaintiff’s limitations throughout the second relevant period.
Moreover, any error in assessing the opinions of Dr. Chen and NP Simmons would be harmless. An error that is inconsequential to the non-disability determination is harmless. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). Because both sources opined only short-term limitations on Plaintiff’s abilities, even if the ALJ credited the opinions, the ALJ would not be required to include such limitations in the RFC. See SSR 23-1p (“[W]e will not include limitations in the RFC assessment that completely resolve, or that we expect to completely resolve, within 12 months.”).
C. Non-Medical Source Statements Plaintiff challenges the ALJ’s assessment of two lay witness statements. Dkt. 17 at 21– 22. The ALJ is required to give germane reasons for rejecting such statements. See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citations omitted).
First, Plaintiff argues the ALJ failed to properly assess the 2010 testimony of his roommate, Ms. Hildebrandt, who testified Plaintiff was often upset, stressed, showed signs of depression, and was in constant pain. See AR 1115–17. The ALJ properly discounted Ms. Hildebrandt’s testimony because it was based on a limited view of Plaintiff’s symptoms. See AR 665. Ms. Hildebrandt only lived with Plaintiff for two months during 2009 and otherwise only saw him once every several months. See AR 383. Ms. Hildebrandt’s observations, then, were based on a limited period which included Plaintiff’s recovery from an accident. See AR 647. Given the brief period in which Ms. Hildebrandt observed Plaintiff, the ALJ properly found the testimony was not probative as to Plaintiff’s abilities throughout the seven-year period.
Even so, any error in considering Ms. Hildebrandt’s testimony would be harmless, as the ALJ properly considered Plaintiff’s similar testimony about his limitations during the first relevant period. See Molina v. Astrue, 674 F.3d 1104, 1116–22 (9th Cir. 2012). Second, Plaintiff argues the ALJ failed to properly assess the vocational assessments of Rhonda Sabin and Kay Clark. However, Judge Simon found the failure to address these statements was harmless error (see AR 608–10, 859–61) and the law of the case doctrine bars the Court from reconsidering these findings. Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016) (citation omitted).
Judge Simon found the failure to address Ms. Clark’s opinion was harmless because the ALJ would have been required to prefer the contrary opinion of Dr. Robert Kruger over her statement. AR 608–10. Plaintiff has not challenged the ALJ’s determination that Dr. Kruger’s contrary opinion was entitled to great weight. See AR 660; Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995) (An examining physician's opinion is “entitled to greater weight than the opinion of a non-examining physician.”); 20 C.F.R. § 404.1527(c)(1). Judge Simon found the failure to address Ms. Sabin’s statement harmless because the ALJ found Plaintiff limited to performing light work which was consistent with Ms. Sabin’s statement. See AR 608–10. Although the ALJ here found Plaintiff capable of medium work, he based his step five finding on Plaintiff’s ability to perform light work, so the same rationale applies. See AR 674. Thus, Plaintiff has not shown reversible error in the ALJ’s consideration of the vocational assessments. D. Trial Work Period Plaintiff argues the ALJ erred by failing to apply the rules pertaining to trial work periods
in evaluating Plaintiff’s work history between July 1, 2012, and June 30, 2019. Dkt. 27 at 3–4. A claimant who has been found disabled is entitled to a nine-month trial work period in which they may perform services without being found not disabled. See 20 C.F.R. § 404.1592(a). Here, however, Plaintiff was not found disabled prior to the beginning of his work history. See AR 673–75. For this reason, Plaintiff was not entitled to a finding that his subsequent work experience was a trial work period. Plaintiff contends the Court should nonetheless direct the ALJ, on remand, to apply the trial work period rules if he finds Plaintiff disabled prior to his 2012 work activity. See Dkt. 36 at 1. Even if the Court found error in the ALJ’s determination that Plaintiff was not disabled before
July 1, 2012, it would decline Plaintiff’s request. The Court cannot engage in “general legal oversight” of Commissioner’s determinations, TransUnion LLC v. Ramirez, 594 U.S. 413, 423– 24 (2021), and will therefore not issue conditional instructions unrelated to demonstrated error, see Gill v. Whitford, 585 U.S. 48, 66 (2018) (“[A] [P]laintiff’s remedy must be limited to the
inadequacy that produced his injury in fact.”) (quotation and citation omitted). E. Remand Plaintiff has not challenged the ALJ’s determination that he was not disabled (at step two) prior to November 2005. He has not successfully argued the ALJ erred in finding he could perform work existing in significant numbers in the national economy between November 2005 and June 2012. And he has not shown error in the ALJ’s determination that he performed substantial gainful activity from July 2012 through June 2019 such that he could not be found disabled during that period. Thus, the Court affirms the ALJ’s finding that Plaintiff was not disabled before July 1, 2019. The Court, however, has found that the ALJ erred in assessing Plaintiff’s subjective
symptom testimony for the period between July 1, 2019, and Plaintiff’s 55th birthday in November 2021, and that this error requires reversal. Plaintiff contends the case should be remanded for an award of benefits with respect to that period. Dkt. 27 at 24–25. Plaintiff argues the evidence indicates he must be found capable of only sedentary work for that period, and under the Medical-Vocational Guidelines, this would direct a finding of disabled. See id. However, Plaintiff’s testimony does not establish he would be limited to sedentary work. As Plaintiff described it, he had difficulties standing for four to five hours at a time in 2019 (see AR 718), but this is more than the amount of standing required in a sedentary work day (see SSR 96- 8p). Further, the Court has found the ALJ properly discounted the only medical source relevant
to this period. See AR 671. For this reason, there remain gaps and conflicts in the medical evidence which require further proceedings to resolve. See Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017).
The ALJ’s decision is affirmed in part and reversed in part. The ALJ properly found Plaintiff not disabled prior to July 1, 2019. The Court therefore AFFIRMS the ALJ’s decision that Plaintiff was not disabled prior to that date. However, the ALJ erred in finding Plaintiff not disabled on and after that date. Thus, the Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings to determine whether Plaintiff is disabled from July 1, 2019, through the date of his 55th birthday in November 2021. Dated this 9th day of July, 2025. A Grady J. Leupold United States Magistrate Judge