Tara P. v. Frank Bisignano, Commissioner of Social Security

• Court: District Court, E.D. Washington
• Decided: March 13, 2026
• Docket: 4:24-cv-05063
• Status: Unknown

Opinion

2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Mar 13, 2026

4 SEAN F. MCAVOY, CLERK

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 TARA P.,1 No: 4:24-CV-05063-LRS 8 Plaintiff,

9 v. ORDER REVERSING AND REMANDING THE 10 FRANK BISIGNANO, COMMISSIONER’S DECISION FOR COMMISSIONER OF SOCIAL FURTHER PROCEEDINGS 11 SECURITY,

12 Defendant.

13 BEFORE THE COURT are the parties’ briefs. ECF Nos. 8, 12. This matter 14 was submitted for consideration without oral argument. Plaintiff is represented by 15 attorney Chad Hatfield. Defendant is represented by Special Assistant United States 16 Attorney Jacob P. Phillips. The Court, having reviewed the administrative record 17 and the parties’ briefing, is fully informed. For the reasons discussed below, 18 19

20 1 The Court identifies a plaintiff in a Social Security case only by the first 21 name and last initial to protect privacy. See Local Civil Rule 5.2(c). 1 Plaintiff’s brief, ECF No. 8, is granted in part and Defendant’s brief, ECF No. 14, is 2 denied. 3 JURISDICTION 4 Plaintiff Tara P. (Plaintiff), filed for supplemental security income (SSI) on

5 April 9, 2021, and alleged an onset date of January 1, 2021. Tr. 171-80. Benefits 6 were denied initially, Tr. 90-94, and upon reconsideration, Tr. 103-05. Plaintiff 7 appeared at a hearing before an administrative law judge (ALJ) on August 15, 2023.

8 Tr. 43-68. In September 2023, the ALJ issued an unfavorable decision, Tr. 22-42, 9 and in April 2024, the Appeals Council denied review. Tr. 1-6. The matter is now 10 before this Court pursuant to 42 U.S.C. § 1383(c)(3). 11 BACKGROUND

12 The facts of the case are set forth in the administrative hearing and transcripts, 13 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 14 therefore only summarized here.

15 Plaintiff was 29 years old at the time the application was filed. Tr. 36. She 16 has a high school education. Tr. 418. She has worked as a bartender, caregiver, 17 waitress/cook, and salesclerk, cashier, and door greeter. Tr. 203. She testified that 18 she experiences significant symptoms from back and neck pain, knee pain and

19 swelling, headaches, and arm pain with use. Tr. 46-52. She takes medication that 20 causes fatigue, drowsiness, and occasional dizziness. Tr. 52. She has tachycardia and 21 heart palpitations which cause lightheadedness and sometimes dizziness daily. Tr. 1 53. She sometimes needs to lie down up to several times a day for back pain, 2 headaches, fatigue, or dizziness. Tr. 48, 49-50, 52-53, 55. She has social anxiety and 3 depression. Tr. 58. 4 STANDARD OF REVIEW

5 A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited; the Commissioner’s decision will be disturbed “only if it is not supported by

8 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 9 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 10 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 11 citation omitted). Stated differently, substantial evidence equates to “more than a

12 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 13 In determining whether the standard has been satisfied, a reviewing court must 14 consider the entire record as a whole rather than searching for supporting evidence in

15 isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 18 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one

19 rational interpretation, [the court] must uphold the ALJ’s findings if they are 20 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 21 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 1 decision on account of an error that is harmless.” Id. An error is harmless “where it 2 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 3 (quotation and citation omitted). The party appealing the ALJ’s decision generally 4 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S.

5 396, 409-10 (2009). 6 FIVE-STEP EVALUATION PROCESS 7 A claimant must satisfy two conditions to be considered “disabled” within the

8 meaning of the Social Security Act. First, the claimant must be “unable to engage in 9 any substantial gainful activity by reason of any medically determinable physical or 10 mental impairment which can be expected to result in death or which has lasted or 11 can be expected to last for a continuous period of not less than twelve months.” 42

12 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be “of such 13 severity that he is not only unable to do his previous work[,] but cannot, considering 14 his age, education, and work experience, engage in any other kind of substantial

15 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 16 The Commissioner has established a five-step sequential analysis to determine 17 whether a claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). 18 At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. §

19 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 20 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(b). 21 1 If the claimant is not engaged in substantial gainful activity, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 4 “any impairment or combination of impairments which significantly limits [his or

5 her] physical or mental ability to do basic work activities,” the analysis proceeds to 6 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 7 this severity threshold, however, the Commissioner must find that the claimant is not

8 disabled. 20 C.F.R. § 416.920(c). 9 At step three, the Commissioner compares the claimant’s impairment to 10 severe impairments recognized by the Commissioner to be so severe as to preclude a 11 person from engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii).

12 If the impairment is as severe or more severe than one of the enumerated 13 impairments, the Commissioner must find the claimant disabled and award benefits. 14 20 C.F.R. § 416.920(d).

15 If the severity of the claimant’s impairment does not meet or exceed the 16 severity of the enumerated impairments, the Commissioner must assess the 17 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 18 defined generally as the claimant’s ability to perform physical and mental work

19 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 20 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 21 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in the 3 past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable 4 of performing past relevant work, the Commissioner must find that the claimant is

5 not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of performing 6 such work, the analysis proceeds to step five. 7 At step five, the Commissioner should conclude whether, in view of the

8 claimant’s RFC, the claimant is capable of performing other work in the national 9 economy. 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the 10 Commissioner must also consider vocational factors such as the claimant’s age, 11 education and past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant

12 is capable of adjusting to other work, the Commissioner must find that the claimant 13 is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of 14 adjusting to other work, analysis concludes with a finding that the claimant is

15 disabled and is therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 16 The claimant bears the burden of proof at steps one through four above. 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 18 step five, the burden shifts to the Commissioner to establish that (1) the claimant is

19 capable of performing other work; and (2) such work “exists in significant numbers 20 in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 21 386, 389 (9th Cir. 2012). 1 ALJ’S FINDINGS 2 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 3 activity since April 9, 2021, the application date. Tr. 27. At step two, the ALJ 4 found that Plaintiff has the following severe impairments: lumbar and cervical

5 degenerative disc disease; degenerative joint disease of the bilateral knees; 6 tachycardia; and obesity. Tr. 27. At step three, the ALJ found that Plaintiff does not 7 have an impairment or combination of impairments that meets or medically equals

8 the severity of a listed impairment. Tr. 30. 9 The ALJ then found that Plaintiff has the residual functional capacity to 10 perform sedentary work with the following additional limitations: 11 She can stand and walk 15 minutes at a time, for 2 hours total in combination in an 8-hour workday; she can occasionally perform 12 all postural activities; she can frequently push and pull with her upper extremities; she can occasionally reach overhead, and 13 frequently reach in other directions; she can frequently finger; she can have no more than frequent exposure to hazards (e.g., 14 unprotected heights, moving mechanical parts).

15 Tr. 31. 16 At step four, the ALJ made no finding regarding Plaintiff’s capacity for past 17 relevant work. Tr. 36. At step five, after considering the testimony of a vocational 18 expert and Plaintiff’s age, education, work experience, and residual functional 19 capacity, the ALJ found that there are jobs that exist in significant numbers in the 20 national economy that the claimant can perform such as document preparer, election 21 clerk, and escort vehicle driver. Tr. 37. Thus, the ALJ found that Plaintiff has not 1 been under a disability within the meaning of the Social Security Act since April 9, 2 2021, the date the application was filed. Tr. 37. 3 ISSUES 4 Plaintiff seeks judicial review of the Commissioner’s final decision denying

5 supplemental security income under Title XVI of the Social Security Act. ECF No. 6 8. Plaintiff raises the following issues for review: 7 1. Whether the ALJ properly considered the medical opinion evidence;

8 2. Whether the ALJ properly evaluated the symptom testimony; and 9 3. Whether the ALJ conducted an adequate analysis at step five. 10 ECF No. 8 at 5. 11 DISCUSSION

12 A. Medical Opinion Evidence 13 Plaintiff contends the ALJ improperly evaluated the opinion of Justin 14 Olswanger, D.O. ECF No. 8 at 8-13. Plaintiff contends the ALJ’s reasoning was

15 incorrect, that Dr. Olswanger’s opinion is consistent with the record, and that the 16 ALJ failed to consider Dr. Olswanger’s assessment that she must lie down or elevate 17 her legs for 1-2 hours per day. 18 The regulations provide an ALJ must consider and evaluate the persuasiveness

19 of all medical opinions or prior administrative medical findings from medical 20 sources. 20 C.F.R. § 416.920c(a) and (b). Supportability and consistency are the 21 most important factors in evaluating the persuasiveness of medical opinions and 1 prior administrative findings, and therefore the ALJ is required to explain how both 2 factors were considered. 20 C.F.R. § 416.920c(b)(2). The ALJ may, but is not 3 required, to explain how other factors were considered. 20 C.F.R. § 416.920c(b)(2); 4 see 20 C.F.R. § 416.920c(c)(1)-(5).

5 In evaluating supportability, the more relevant the objective medical evidence 6 and supporting explanations provided by a medical source to support his or her 7 opinion, the more persuasive the medical opinion will be. 20 C.F.R. §

8 416.920c(c)(1)-(2). In evaluating consistency, the more consistent a medical 9 opinion is with the evidence from other medical sources and nonmedical sources in 10 the claim, the more persuasive the medical opinion will be. 20 C.F.R. § 11 416.920c(c)(1)-(2).

12 Dr. Olswanger completed a Medical Report form in October 2022. Tr. 696-98. 13 He diagnosed back pain, anxiety, and neuropathy, noting symptoms of chronic lower 14 back pain, anxiety, and nerve pain in the legs. Tr. 696. He indicated Plaintiff has to

15 lie down or elevate her legs during the day for one to two hours, and her legs must 16 be bent to restore circulation. He noted her medication causes drowsiness. Tr. 696. 17 He opined that “regular physical labor would be difficult,” and that Plaintiff would 18 miss more than four days of work per month if working a 40-hour workweek due to

19 chronic pain and anxiety. Tr. 696-97. He assessed limitations of sedentary work with 20 occasional use of the upper and lower extremities and indicated that the cumulative 21 1 effect of all limitations would cause Plaintiff to be off task and unproductive more 2 than 30 percent of the time during a 40-hour workweek. Tr. 697. 3 The ALJ found Dr. Olswanger’s opinion regarding the limitation to sedentary 4 work persuasive but rejected the remainder of the opinion. Tr. 35. The ALJ found:

5 (1) the opinion regarding future absences “nothing more than opinions that the 6 claimant can’t work at times, which address an issue reserved to the commissioner, 7 and so are inherently neither valuable or persuasive”; (2) to the extent the opinion

8 regarding absences and time off task are based on Plaintiff’s mental health, the 9 opinion is contradicted by the exam results of Mr. Marendiuk and the opinions of the 10 state agency consultants; (3) the portion of the opinion related to Plaintiff’s use of 11 her upper extremities is not consistent with the record including Ms. Kelton’s

12 opinion, few complaints in the record, and no documented extremity deficits. 13 Plaintiff observes that missing from the ALJ’s analysis is any reason for 14 rejecting Dr. Olswanger’s assessment that Plaintiff has to lie down with her legs bent

15 or sit with her legs raised for one to two hours per day to restore circulation. The 16 ALJ acknowledged that Plaintiff testified her legs go numb randomly and she gets 17 pins and needles in her legs, Tr. 31; she alleged nerve damage to her lower back, 18 hips and legs, Tr. 32; the record reflects a slight limp and a diagnosis of bilateral

19 lumbar radiculopathy, Tr. 404, 409; and at least two exams finding of decreased 20 strength and loss of sensation in the right thigh, Tr. 34, 409, 662. Plaintiff also 21 testified that she must lie down and elevate her legs two to three times per day for 40 1 minutes at a time for circulation and to relieve pressure. Tr. 48-49. Thus, there 2 appears to be at least some findings which might support Dr. Olswanger’s opinion 3 regarding the need for Plaintiff to elevate her legs. 4 Furthermore, the vocational expert testified that a limitation requiring

5 elevation of the legs at least above waist height is “really kind of hard to accomplish 6 and still perform work.” Tr. 66. This suggests that if Dr. Olswanger’s opinion that 7 Plaintiff needs to elevate her legs for one to two hours per day were credited, the

8 result might be a finding that Plaintiff cannot perform work.2 9 Defendant restates the medical evidence and argues the record does not 10 support Dr. Olswanger’s leg elevation limitation. ECF No. 12 at 4. The Court is 11 constrained to review only those reasons asserted by the ALJ. Sec. Exch. Comm’n v.

12 Chenery Corp., 332 U.S. 194, 196 (1947); Connett v. Barnhart, 340 F.3d 871, 874 13 (9th Cir. 2003); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001). The 14 ALJ’s failure to address Dr. Olswanger’s opinion that Plaintiff needs to elevate her

15 legs daily is error. The supportability of the opinion, its impact on the RFC, and the 16 application of the vocational expert’s testimony on this issue are all matters for the 17 ALJ to determine on remand. 18

19 2 It is not apparent from the record whether such a limitation could be 20 addressed outside of working hours, which is matter for the ALJ’s consideration. 21 1 Additionally, the ALJ incorrectly found that Dr. Olswanger’s opinion that 2 Plaintiff would miss four or more days of work per month is an issue reserved to the 3 Commissioner. Although the ultimate issue of disability is reserved to the 4 Commissioner, the ALJ must consider a medical opinion as to a claimant’s

5 functional limitations. See 20 C.F.R. § 416.913(b)(6) (providing that a medical 6 opinion is “a statement about what you can still do despite your impairment(s)”). An 7 opinion about the ability to maintain attendance is a functional assessment. See Ryan

8 v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1196 (9th Cir. 2008) (indicating a 9 physician gave a “functional assessment” when concluding the claimant “would not 10 be able to maintain regular attendance in the work place due to extreme anxiety and 11 continuing depression”). The Commissioner recognizes that the ability to maintain

12 regular attendance and the ability to complete a normal workday and workweek 13 without interruptions from psychologically based symptoms are mental abilities 14 needed for any job. Social Security Administration Program Operations System

15 Manual (POMS), DI 25020.010(B)(2)(a). Dr. Olswanger did not opine that Plaintiff 16 was disabled but made a functional assessment that her impairments would cause her 17 to be off task and miss work. Accordingly, the ALJ’s reasoning is erroneous. 18 The ALJ also rejected Dr. Olswanger’s opinion because it is “asserted in a

19 checkbox form with minimal explanation and no references to the record or testing.” 20 Tr. 35. An opinion cannot be rejected simply because it is in checkbox form, 21 although an ALJ may reject a checkbox form opinion that does not contain any 1 explanation of the basis for its conclusions. See Popa v. Berryhill, 872 F.3d 901, 907 2 (9th Cir. 2017) (quoting Molina, 674 F.3d at 1111). Here, Dr. Olswanger wrote 3 explanatory comments about every question on the form. Tr. 696-98. His office visit 4 notes from the same day provide further explanation. Tr. 659-62. This is not a

5 sufficient basis to reject the opinion. 6 Due to the errors in evaluating Dr. Olswanger’s opinion, this matter must be 7 remanded for reconsideration.

8 B. Symptom Testimony 9 An ALJ engages in a two-step analysis to determine whether a claimant’s 10 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 11 determine whether there is objective medical evidence of an underlying impairment

12 which could reasonably be expected to produce the pain or other symptoms alleged.” 13 Molina, 674 F.3d at 1112 (internal quotation marks omitted). Second, “[i]f the 14 claimant meets the first test and there is no evidence of malingering, the ALJ can

15 only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 16 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 17 763 F.3d 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). 18 “General findings are insufficient; rather, the ALJ must identify what

19 testimony is not credible and what evidence undermines the claimant’s complaints.” 20 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Thomas v. 21 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility 1 determination with findings sufficiently specific to permit the court to conclude that 2 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and 3 convincing [evidence] standard is the most demanding required in Social Security 4 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v.

5 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 6 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 7 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the

8 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 9 daily living activities; (4) the claimant’s work record; and (5) testimony from 10 physicians or third parties concerning the nature, severity, and effect of the 11 claimant’s condition. Thomas, 278 F.3d at 958-59.

12 The ALJ found that Plaintiff’s medically determinable impairments could 13 reasonably be expected to produce his alleged symptoms, but his statements 14 regarding the intensity, persistence, and limiting effects of such symptoms are not

15 entirely consistent with the medical evidence and other evidence in the record. Tr. 16 32. The ALJ found: (1) Plaintiff’s allegations of disabling symptoms are inconsistent 17 with the objective evidence; (2) Plaintiff’s treatment has been routine and 18 conservative and not consistent with any disability; (3) Plaintiff’s statements in the

19 record are inconsistent with her testimony; (4) Plaintiff’s daily activities reflect high 20 functioning; and (5) Plaintiff has a weak work history for years before her alleged 21 onset of disability. Tr. 33-34. 1 Plaintiff argues that the ALJ failed to provide valid reasons for discounting 2 her subjective complaints. Because this case is remanded for reconsideration of Dr. 3 Olswanger’s opinion, the ALJ will also be required to re-evaluate Plaintiff's 4 symptom statements on remand. The analysis of the ALJ’s findings regarding

5 Plaintiff’s symptom testimony is dependent at least in part on the ALJ's evaluation 6 of the medical evidence to be reconsidered. On remand, the ALJ is instructed to 7 conduct a new sequential analysis including reconsideration of Dr. Olswanger’s

8 opinion. 9 C. Step Five 10 Plaintiff contends the ALJ erred at step five because the finding that there are 11 jobs available that Plaintiff can perform was based on an incomplete hypothetical.

12 ECF No. 8 at 19-20. The ALJ’s hypothetical must be based on medical 13 assumptions supported by substantial evidence in the record which reflect all of a 14 claimant’s limitations. Osenbrook v. Apfel, 240 F.3D 1157, 1165 (9th Cir. 2001).

15 Plaintiff’s argument is based on the assumption that Dr. Olswanger’s opinion and 16 the limitations therein would be credited. The weight to be accorded to the opinion is 17 a matter for the ALJ on remand and the RFC and step five finding will likewise be 18 reconsidered.

19 CONCLUSION 20 Having reviewed the record and the ALJ’s findings, this Court concludes the 21 ALJ’s decision is not supported by substantial evidence and free of harmful legal 1 || error. The Court finds that further administrative proceedings are appropriate. See 2|| Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014). The ALJ must reconsider Dr. Olswanger’s opinion and conduct a new five-step evaluation. 5 Accordingly, IT IS HEREBY ORDERED: 6 1. Plaintiff's Brief, ECF No. 8, is GRANTED in part regarding Plaintiff's request to remand the case for further proceedings and DENIED in part regarding 8 || Plaintiff's request that the Court determine an award of benefits is appropriate. 9 2. Defendant’s Brief, ECF No. 12, is DENIED. 10 3. This case is REVERSED and REMANDED for further administrative proceedings consistent with this Order pursuant to sentence four of 42 U.S.C. § 12 |} 405(g). 13 IT IS SO ORDERED. The District Court Executive is directed to enter this Order and provide copies to counsel. Judgment shall be entered for Plaintiff and the 15 || file shall be CLOSED. 16 DATED March 13, 2026. ) ““)

LONNY R. SUKO 18 Senior United States District Judge 19 20 21

ORDER PEVERCING ANT RPENMIANIDING THE CONMNMTCOTONER °C