Sheppard v. Commissioner of Social Security

Opinion

WESTERN DISTRICT OF WASHINGTON NATHANIEL A. S. Case No. 2:24-cv-01564-TLF Plaintiff, v. ORDER AFFIRMING DEFENDANT’S DECISION TO ACTING COMMISSIONER OF SOCIAL DENY BENEFITS Defendant. … Plaintiff seeks judicial review under 42 U.S.C. § 405(g) of defendant’s denial of plaintiff’s application for supplemental security income (“SSI”) and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented to the jurisdiction of a Magistrate Judge. Dkt. 2. Plaintiff challenges the ALJ’s decision finding that plaintiff was not disabled. Dkt. 5, Complaint. For the reasons discussed below, the decision of the ALJ is affirmed. The alleged date of onset was February 13, 2018. AR 964. In the ALJ’s June 6, 2024 decision at issue, ALJ Laura Valente found plaintiff had the following severe impairments: “autism spectrum disorder; generalized anxiety disorder; depressive disorder; bipolar disorder; attention-deficit hyperactivity disorder (“ADHD”); and fibromyalgia. . . .” AR 964. The ALJ determined that plaintiff had the capacity (“RFC”) “to perform medium work . . . except she is limited to frequent postural activities, and frequently climbing ladders, ropes, and scaffolds. She must avoid concentrated exposure to extreme cold and to hazards such as dangerous moving machinery and unprotected heights. She is capable of simple tasks and can interact occasionally with

the general public and with coworkers.” AR 966. At step four, the ALJ found plaintiff could perform past relevant work: “industrial commercial groundskeeper, and kitchen helper, and an outside deliverer.” AR 976. The ALJ also found at step five plaintiff could perform such occupations as janitor, stores laborer, or laundry laborer. AR 977. Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of Social Security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (internal citations omitted). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). If the evidence would reasonably support affirming the ALJ’s decision, or reversing it, the Court may not substitute its own judgment for the ALJ’s. Ferguson v. O’Malley, 95 F.4th 1194, 1199 (9th Cir. 2024). The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court also must weigh both the evidence that supports and evidence that does not support the ALJ’s conclusion. Id. The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did not rely. Id. Rather, only the reasons identified by the ALJ are considered in the scope

of the Court’s review. Id. The Court may determine the ALJ’s reasoning by drawing reasonable inferences and determining an implied finding from the record. Ferguson, 95 F. 4th at 1200.

1. Plaintiff’s statements about symptoms and limitations The ALJ’s determinations regarding a claimant’s statements about limitations “must be supported by specific, cogent reasons.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). In assessing a plaintiff’s credibility, the ALJ must determine whether plaintiff has presented objective medical evidence of an underlying impairment. If such evidence is present and there is no evidence of malingering, the ALJ can only reject plaintiff’s testimony regarding the severity of his symptoms for specific, clear, and convincing reasons. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)).

Law of the Case and Rule of Mandate A federal court may provide instructions on remand in Social Security disability review proceedings. Sullivan v. Hudson, 490 U.S. 877, 885-886 (1989), overruled on other grounds in Shalala v. Schaefer, 509 U.S. 292. 300 n.4 (1993). If an ALJ deviates from a court’s order of remand, that deviation “is itself legal error, subject to reversal on further judicial review.” Id. at 886. If a remand order does not contain restrictive language, or if the scope of the remand is expressly made broad, then neither law of the case nor the rule of mandate would constrict the ALJ in a remand

hearing. See Stacy v. Colvin, 825 F.3d 563, 566, 568-69 (9th Cir. 2016) (the Court of Appeals found the ALJ did not violate the rule of mandate, holding that the remand order must be read holistically, the District Judge’s remand order was expansive, not intended to restrict the ALJ from taking new evidence, and essentially remanded on an

open record). “[T]he rule of mandate allows a lower court to decide anything not foreclosed by the mandate.” Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). The rule of mandate is a jurisdictional rule, but the law of the case doctrine is discretionary and a judicial invention to promote judicial efficiency. Id. Law of the case “generally precludes a court from reconsidering an issue decided previously by the same court or by a higher court in the identical case.” Id. For the law of the case doctrine to be applied, the Court must consider whether the issue has been explicitly decided, or whether it was by necessary implication decided. Id. Law of the case should not be applied if “the evidence on remand is substantially different, when

the controlling law has changed, or when applying the doctrine would be unjust.” Stacy 825 F.3d at 567. In this case, Judge David Christel reversed and remanded the ALJ’s decision, in part, because the ALJ did not properly evaluate plaintiff’s part-time work or plaintiff’s statements about symptoms and limitations. AR 1094. Judge Christel also reversed because the ALJ erred in finding plaintiff failed to engage in mental health therapy, in finding plaintiff’s affect did not demonstrate that she did not have bipolar disorder or a mood disorder, and because improvement in mental health symptoms did not necessarily mean plaintiff was able to work full-time. Id. The law of the case doctrine

and rule of mandate would apply to this portion of Judge Christel’s opinion, and the portions of ALJ’s decision that deviate from Judge Christel’s reasoning and order (AR 969-70) are erroneous. An error that is inconsequential to the non-disability determination is harmless. Stout

v. v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). If the errors of the ALJ result in a residual functional capacity (“RFC”) that does not include relevant work-related limitations, the RFC is deficient and the error is not harmless. Id.; see also Carmickle v. Comm’r. Spc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988); Stramol-Spirz v. Saul, 848 Fed. Appx. 715, 718 (9th Cir. 2021) (unpublished). Here, the ALJ gave other reasons for concluding that plaintiff’s statements about symptoms and limitations were not credible. Those other reasons, independent of those Judge Christel rejected are: plaintiff’s statements were not entirely consistent with the medical record (AR 968); plaintiff’s activities of daily living were inconsistent with her

statements about the severity of pain and mental health limitations (AR 970); and plaintiff previously made statements that were inconsistent with her testimony during the second administrative hearing in 2022 (AR 970, 972). “Contradiction with the medical record is a sufficient basis for rejecting the claimant’s subjective testimony.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)). But an ALJ may not reject a claimant’s subjective symptom testimony “solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th

Cir. 1995) (applying rule to subjective complaints other than pain). Treatment records cannot be cherry-picked; the ALJ must consider a particular record of treatment in light of the overall diagnostic record. Ghanim v. Colvin, 763 F.3d at 1164. An ALJ may discount a claimant's testimony based on daily activities that either

contradict their testimony or that meet the threshold for transferable work skills. Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). In this case, the ALJ reasoned that findings in the medical record were inconsistent with plaintiff’s statements about inability to pay attention, difficulty processing the communication of other persons, and inability to perform tasks. AR 968. The Court has reviewed the medical records, and even though some of the findings in the medical record show symptoms such as rapid or tangential speech, poor concentration, and memory (AR 734-735 [Dr. Epp’s report dated 5-6-2019], 1320-1322 [notes of Dr. Gary Stobbe, MD, dated 8-16-2022]), there is substantial evidence to support the ALJ’s

findings. See e.g., AR 856, 860, 862, 865 (notes of LMHCA Swanson, for several appointments in March 2019, plaintiff exhibited oriented and alert cognitive functioning during counseling); AR 901 (progress notes dated 1-31-2020 from Dr. Gary Stobbe, MD, stating that plaintiff’s thought form was linear and goal directed, alert and attentive during the visit); AR 924 (Dr. Stobbe’s notes dated 8-1-2019 describes plaintiff as having no apparent deficit in memory, and speech is normal rate). With respect to daily activities, the ALJ found plaintiff spent time on the computer reading and enjoying online games with other people, cooking, walking, making breakfast, shopping, maintaining a social life, pursuing karate. AR 970-72. There is

substantial evidence in the record to support the ALJ’s reasoning that these activities were inconsistent with plaintiff’s statements about not being able to effectively interact with other people, and plaintiff’s assertions of being exhausted. See, e.g., AR 370-71, 700, 930, 1411-12, 1435-37, 1461-62.

Because the ALJ relied on two clear and convincing reasons supported by substantial evidence, the erroneous reasons are harmless. Stout v. v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). 2. Medical evidence Under the 2017 regulations, the Commissioner “will not defer or give any specific evidentiary weight . . . to any medical opinion(s) . . . including those from [the claimant’s] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The ALJ must nonetheless explain with specificity how he or she considered the factors of supportability and consistency in evaluating the medical opinions. 20 C.F.R. §§ 404.1520c(a)–(b),

416.920c(a)–(b). In Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022), the Court held that under the 2017 regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence. The agency must “articulate ... how persuasive” it finds “all of the medical opinions” from each doctor or other source, 20 C.F.R. § 404.1520c(b), and “explain how [it] considered the supportability and consistency factors” in reaching these findings, id. § 404.1520c(b)(2). Id. Plaintiff did not identify any harmful error in the ALJ’s decision discounting the mental health medical opinions of Dr. Epp, Dr. Greenfield, Dr. Burdge, or Dr. Van Fossen that would be significant as to the ALJ’s finding of no disability. If the evidence would reasonably support affirming the ALJ’s decision, or reversing it, the Court may not substitute its judgment for the ALJ’s. Ferguson v. O’Malley, 95 F.4th 1194, 1199 (9th Cir. 2024). There is “a presumption that ALJs are, at some level, capable of independently reviewing and forming conclusions about medical evidence to discharge

their statutory duty to determine whether a claimant is disabled and cannot work.” Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022); see Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.”). The general arguments presented by plaintiff about cherry-picking are insufficient to meet plaintiff’s burden of showing harmful error. Dkt. 12 at 8-12. 3. Whether the ALJ erred in determining plaintiff’s RFC Plaintiff argues that the ALJ did not include all impairments in the hypothetical to the vocational expert. Dkt. 12 at 11-13. Plaintiff contends the ALJ should have explained discrepancies between the medical opinions of the consulting doctors, and the

limitations described in the RFC – with respect to plaintiff’s ability to interact with supervisors. Id. at 11. The Court may determine the ALJ’s reasoning by drawing reasonable inferences and determining an implied finding from the record. Ferguson, 95 F. 4th at 1200. The ALJ’s hypothetical to the vocational expert included “able to interact . . .occasionally with coworkers and with the general public.” AR 1044. This limitation was included in the RFC. AR 966. The ALJ repeatedly made findings that plaintiff’s ability to interact with others was not impaired to the degree she alleged, or to the degree that some of the medical

opinions suggested. For example, the ALJ stated that “activities included maintaining social interaction with a group of friends; playing Dungeons and Dragons with a groups of friends; and taking karate lessons during the period at issue” (AR 965); the ALJ also found, “[plaintiff’s] above activities are not consistent with the level of functional

limitation alleged by claimant . . .due to the allegedly severe anxiety, poor social skills, and poor anger control that make it hard to interact with others and manage daily tasks.”; and the ALJ found, “[plaintiff’s] ability to live with a roommate and attend karate suggests an ability to interact appropriately with another person on a daily basis” AR 971. Although a roommate is not a supervisor, and a karate instructor is not the boss, these are relationships in which, to be responsive, the plaintiff would have been required to communicate effectively and receive feedback. The ALJ also observed that each of the medical professionals who opined about plaintiff’s limitations did not have all the information about plaintiff’s activities of daily living and therefore would not know the extent to which plaintiff had social interactions

and the ability to maintain an active social life as part of her karate, online games with other players, and having a roommate. AR 973-75.

The Court can draw the inference from the reasoning expressed in the ALJ’s decision that the ALJ did explain the discrepancy between the consultative medical opinions and the RFC that did not mention any limitation on frequency of supervisor interactions. Ferguson, 95 F. 4th at 1200. The Court upholds the ALJ’s decision

because their reasoning was supported by substantial evidence and is not contrary to law. CONCLUSION For these reasons, the ALJ’s decision is affirmed.

Dated this 24th day of September, 2025. A

Theresa L. Fricke United States Magistrate Judge