Shafer v. Commissioner of Social Security

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 JAMIE S., 9 Plaintiff, Case No. C25-5820-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of her application for Disability Insurance Benefits. 15 Plaintiff contends that the administrative law judge (“ALJ”) erred by misevaluating the medical 16 opinion evidence and Plaintiff’s testimony, resulting in an erroneous determination at Step Three 17 and Step Five. (Dkt. # 9.) The Commissioner filed a response arguing that the ALJ’s decision is 18 free of legal error, supported by substantial evidence, and should be affirmed. (Dkt. # 14.) 19 Plaintiff filed a reply. (Dkt. # 15.) Having considered the ALJ’s decision, the administrative 20 record (“AR”), and the parties’ briefing, the Court AFFIRMS the Commissioner’s final decision 21 and DISMISSES the case with prejudice.1 22 23 1 The parties consented to proceed before the undersigned Magistrate Judge. (Dkt. # 3.) 1 II. BACKGROUND 2 Plaintiff was born in February 1978, has a high school education, and has worked in 3 retail. AR at 59-60, 10673. She was last gainfully employed in April 2007. Id. at 10660. In 4 September 2019, Plaintiff applied for benefits, alleging disability as of April 10, 2007. Id. at 17. 5 Her applications were denied initially and on reconsideration, and Plaintiff requested a hearing. 6 Id. After the ALJ conducted a hearing on September 23, 2020, the ALJ issued a decision finding 7 Plaintiff not disabled. Id. The Appeals Council denied review, id. at 1, and Plaintiff appealed to 8 the Eastern District of Washington, which remanded with instructions to reevaluate: (1) 9 neuropathy and leg pain at Step Two; (2) Listings 12.04 and 12.06 at Step Three; (3) Plaintiff’s 10 subjective symptom complaints; and (4) Step Five with vocational expert testimony. Id. at 75-78, 11 85-97. 12 On remand, the same ALJ held a second hearing on February 16, 2023, and again found 13 Plaintiff not disabled. AR at 7803, 7820. Plaintiff again appealed to the Eastern District of 14 Washington, which remanded with instructions to reevaluate Plaintiff’s subjective complaints 15 and to reassess the medical-opinion evidence, Step Three, and Step Five to the extent affected by 16 that evaluation. Id. at 10732. 17 On the second remand, a new ALJ held a third hearing on May 19, 2025. AR at 10658. 18 Plaintiff did not appear; her counsel appeared and reported he had been unable to contact her. Id. 19 The hearing proceeded without objection, and the ALJ left the record open for two weeks to 20 allow counsel to submit a written statement if he reached her. Id. No statement was submitted, 21 and the ALJ found Plaintiff had waived her right to appear. Id. 22 23 1 Using the five-step disability evaluation process,2 the ALJ found, in pertinent part, that 2 Plaintiff did not engage in substantial gainful activity from her alleged onset date, April 10, 3 2007, through her date last insured, September 30, 2008. AR at 10660. During that period, she 4 had the severe impairments of diabetes mellitus, obesity, left-ear hearing loss, migraines, leg 5 pain, bipolar disorder, and anxiety disorder. Id. at 10661. The ALJ found that none of these 6 impairments, alone or in combination, met or equaled a listed impairment. Id. at 10662. The ALJ 7 determined that, through the date last insured, Plaintiff had the residual functional capacity 8 (“RFC”) to perform medium work, except she could understand, remember, and carry out 9 instructions for simple tasks with only occasional changes in the work setting and processes; and 10 could have only occasional interaction with the public and coworkers, with no tandem tasks. Id. 11 at 10665. Relying on vocational expert testimony, the ALJ found Plaintiff could perform the 12 representative occupations of hand packager, cleaner, and dry cleaner, and therefore was not 13 disabled. Id. at 10673-74. 14 The ALJ’s July 2025 decision is the Commissioner’s final decision. AR at 10674. 15 Plaintiff appealed the final decision of the Commissioner to this Court. 3 (Dkt. # 1.) 16 III. LEGAL STANDARDS 17 Under 42 U.S.C. § 405(g), this Court may overturn the Commissioner’s denial of social 18 security benefits if the ALJ’s decision rests on legal error or is not supported by substantial 19 evidence. Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022). Substantial evidence is defined 20 as “such relevant evidence as a reasonable mind might accept as adequate to support a 21 conclusion.” Biestek v. Berryhill, 587 U.S. 97, 102-03 (2019) (cleaned up). In applying this 22 2 20 C.F.R. § 404.1520. 23 3 At the time of her first and second appeals, Plaintiff resided in Spokane County. AR at 10696. She later moved to Kitsap County, giving this Court jurisdiction over the present appeal. (Dkt. # 1 at 2.) 1 standard, the Court must consider the record as a whole to determine whether it contains 2 sufficient evidence to support the ALJ’s findings. Id. 3 Although the Court evaluates the record as a whole, it is not permitted to reweigh the 4 evidence or substitute its judgment for that of the ALJ. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th 5 Cir. 2021). The ALJ is tasked with evaluating testimony, resolving conflicts in the medical 6 evidence, and addressing ambiguities in the record. Smartt, 53 F.4th at 494-95. Where the 7 evidence can be interpreted in more than one rational way, the ALJ’s decision must be upheld. 8 Id. Even if the ALJ erred, reversal is not warranted unless the error affected the outcome of the 9 disability determination. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). The party 10 challenging the ALJ’s decision bears the burden of demonstrating harmful error. Shinseki v. 11 Sanders, 556 U.S. 396, 409 (2009). 12 IV. DISCUSSION 13 A. The ALJ Did Not Err in Evaluating Plaintiff’s Testimony 14 Absent evidence of malingering, an ALJ is required to provide clear and convincing 15 reasons for discounting a claimant’s testimony. See Laborin v. Berryhill, 867 F.3d 1151, 1155 16 (9th Cir. 2017). That said, the ALJ is not required to believe every allegation, nor to analyze 17 testimony line by line. See Ahearn, 988 F.3d at 1116; Lambert v. Saul, 980 F.3d 1266, 1277 (9th 18 Cir. 2020). The question is not whether this Court is convinced, “but instead whether the ALJ’s 19 rationale is clear enough that it has the power to convince.” Smartt, 53 F.4th at 499. 20 The ALJ considered Plaintiff’s testimony from previous hearings and discounted it as 21 inconsistent with the medical record, including minimal treatment, improvement with treatment, 22 and her activities. AR at 10666-71. Plaintiff argues the ALJ erred in discounting her testimony 23 1 regarding (1) migraine headaches, (2) neuropathy and leg pain, and (3) mental health symptoms. 2 (Dkt. # 9 at 11-16.) The Court addresses each argument in turn.4 3 1. Migraine Headaches 4 Plaintiff testified that during the relevant period her migraines worsened and occurred for 5 six hours, two to three times a week. AR at 7838-39. The ALJ found this inconsistent with: (1) 6 her contemporaneous reports to providers; (2) reduced emergency room use during the relevant 7 period, (3) inconsistent compliance with treatment recommendations, and (4) inconsistent 8 descriptions of symptom intensity. Id. at 10666-67. Plaintiff contends the ALJ did not identify 9 these inconsistencies with sufficient specificity. (Dkt. # 9 at 11-12.) 10 The record supports the ALJ’s reasoning. In January 2007, before the alleged onset date, 11 Plaintiff reported going to the emergency room three to four times per month for migraines. AR 12 at 682. During the insured period, however, she had four emergency room visits total, only two 13 for migraines. Id. at 418, 433, 447, 449, 472. In March 2008, her provider noted that her 14 migraines were well controlled with medication. Id. at 630. Impairments that can be effectively 15 controlled with treatment are not disabling. Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 16 (9th Cir. 2006). 17 18 4 The record also reflects a history of substance use and opioid-seeking behavior, which, although not 19 expressly relied upon by the ALJ in the most recent decision, provides context for some of the treatment notes the ALJ discussed. Plaintiff testified that she used methamphetamine daily from approximately 20 2011 to 2014. AR at 62. Medical records reflect that in 2011 she told providers she had quit methamphetamine. Id. at 971. She was prescribed Vicodin during and after the relevant period, at least through 2018. See, e.g., id. at 543, 559, 1268. In July 2008, during the insured period, her primary-care 21 provider noted “concern about requirement and demanding of Vicodin for pain control,” and that Plaintiff “stormed out tearfully” before the visit ended because she could not wait to receive pain medication by 22 mail. Id. at 580. A note from 2013 records that when a provider expressed concern about overuse or overdose, Plaintiff “laughed at the notion and stated that she’d not been given enough.” Id. at 1268. In late 23 2018, an emergency room provider documented that Plaintiff would accept only IV hydromorphone for pain and, after administration, noted that she had not complained of pain and was “clearly . . . manipulative.” Id. at 4944. 1 The ALJ also reasonably relied on noncompliance. Although Plaintiff was started on 2 nortriptyline as a migraine prophylactic in January 2007 (AR at 683), by August 2007 3 emergency room records noted she was not taking any preventive medication (id. at 442). 4 Emergency room providers referred her twice to Peninsula Community Health for ongoing care. 5 Id. at 459, 482. The record reflects no follow-up before the date last insured, and Plaintiff offers 6 no explanation for this failure. (See dkt. ## 9, 15.) The ALJ permissibly viewed this pattern as 7 inconsistent with her account of uncontrolled, disabling migraines. 8 2. Neuropathy and Leg Pain 9 Plaintiff next challenges the ALJ’s decision to discount her testimony regarding disabling 10 leg pain from neuropathy, shin splints, old ankle breaks, and tendinitis. (Dkt. # 9 at 12-14.) The 11 ALJ accepted that, regardless of the cause, her leg impairment warranted restriction to medium 12 work but found that the record did not support greater functional limitation, citing (1) largely 13 normal examination findings, failure to follow treatment recommendations, and improvement 14 with treatment, (2) inconsistent descriptions of pain, and (3) activities inconsistent with disabling 15 leg pain. AR at 10668-70. Any one of these reasons, if supported, is sufficient. See Carmickle v. 16 Comm’r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008). 17 Medical Evidence and Treatment 18 While a lack of objective support alone cannot defeat symptom testimony, inconsistency 19 with the medical record is a permissible factor. Smartt, 53 F.4th at 499; Carmickle, 533 F.3d at 20 1161. Plaintiff largely recites evidence she believes supports her position but does not grapple 21 with the ALJ’s cited findings. (Dkt # 9 at 12-14.) 22 The ALJ noted that exams during the period repeatedly showed normal 5/5 strength (AR 23 at 597, 659, 668, 683), normal ambulation (id. at 594), and normal range of motion (id. at 597). Id. at 10669. Providers suspected diabetic neuropathy and advised that better glycemic control 1 would help. Id. at 663. Yet records repeatedly described her type 2 diabetes as “uncontrolled” 2 and noted that she rarely tested her blood sugar. Id. at 526, 584, 660; see, e.g., id. at 544, 550, 3 562, 575, 581, 586, 590, 599. She declined a dietitian referral. Id. at 531. When a podiatrist 4 evaluated her leg pain, he advised that orthopedics should evaluate it as it was outside podiatry’s 5 scope, but the record contains no evidence she saw orthopedics. Id. at 597. 6 Notably, in March 2008 her primary-care notes indicate that when she stopped all 7 medications except nortriptyline, her neuropathy pain was well controlled. AR at 630. On this 8 record, the ALJ reasonably concluded that the objective findings and treatment response did not 9 support disabling leg pain. 10 Descriptions of Pain 11 The ALJ also pointed to inconsistent descriptions of pain and a pattern suggesting 12 short-lived exacerbations rather than constant, severe pain. AR at 10669. During the relevant 13 period there are no notations indicating that Plaintiff appeared in acute or apparent distress. See, 14 e.g., id. at 412 (March 11, 2007 “General Appearance: In Distress? N”), 424 (April 14, 2008, 15 same), 439 (August 7, 2007, same), 455 (August 12, 2007, same), 458 (August 12, 2007, 16 “[doctor] would have expected to see more electrolyte derangement than presented at this time. 17 The patient is nontoxic and appears to be in no acute distress.”), 481 (August 29, 2007, 18 “GENERAL: She is in no obvious distress.”), 549 (September 5, 2008, “Alert. Not distressed”), 19 561 (August 13, 2008, “General: WD/WN/NAD”), 580 (July 09, 2008, “General: alert, nad”), 20 585 (June 18, 2008, “Gen: NAD, pleasant”), 589 (June 03, 2008, “General: alert, nad, obese”), 21 609 (March 25, 2008, “in no acute distress”), 625 (May 6, 2008, “General: alert, NAD”), 668 22 (December 12, 200,7 same), 672 (November 26, 2007, same). 23 Plaintiff’s descriptions of leg pain varied widely: throbbing, dull ankle pain radiating to the knees (AR at 678); intermittent ache and pressure in the right foot (id. at 407); “dull heated 1 throb” in the shins (id. at 668); “sharp pain” in both legs for eleven years (id. at 543); and, a 2 month later, “just a really bad ache” that began with cold weather (id. at 532). The ALJ 3 reasonably viewed this pattern as reflecting intermittent exacerbations, rather than a continuous, 4 disabling level of pain throughout the insured period. Id. at 10669. 5 Activities of Daily Living 6 The ALJ further relied on inconsistencies between Plaintiff’s alleged limitations and her 7 activities. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Plaintiff testified that leg pain 8 interfered with caring for her children, but during the relevant period, her fiancé worked nights 9 and she was the primary caregiver for her three children during the day. AR at 10669 (citing id. 10 at 613). She also testified she could not walk more than 500 feet, had a “double limp,” and could 11 only be on her feet for five minutes before swelling. Id. at 58. Contemporaneous records, 12 however, show that she walked five times per week for exercise, did water aerobics, and in 13 September 2008 took a job that required her to be on her feet most of the time. Id. at 543, 585. 14 The ALJ reasonably concluded these activities were inconsistent with the alleged severity of leg 15 pain. 16 3. Mental Health 17 Plaintiff testified at the second hearing that she had bouts of severe depression causing 18 her to miss appointments and isolate at home for months, that medications only helped briefly, 19 and that she could handle only one task per day. AR at 7834-38. The ALJ found her mental 20 impairments caused some limitation but not to the disabling extent alleged, citing inconsistent 21 treatment, improvement with treatment, and the role of situational stressors. Id. at 10670-71. 22 Plaintiff was switched to Celexa in January 2007. AR at 682. By May 2008 she presented 23 to the psychiatric emergency department seeking to restart Celexa, though it was unclear when she stopped; providers noted she was “not a good medical historian.” Id. at 604-07. The ALJ 1 reasonably inferred that her symptoms worsened when off medication. Id. at 10670. After an 2 August 2008 hospitalization for a suicide attempt, Plaintiff reported her mood was “1000 times” 3 better after resuming new medications she felt were more appropriate than the ones she had 4 taken for 11 years. Id. at 557. 5 Plaintiff also linked exacerbations to situational stressors, reporting loss of her support 6 network, job, car, and pain medications (AR at 529), financial and relationship problems (id. at 7 547), and “increased stress due to unemployment, many bills, out of control spending.” Id. at 8 611. Providers noted her mood was stable at times but that environmental stressors and lapses in 9 antidepressant and pain medications increased her risk. Id. at 548. By November 2008, her affect 10 had improved and she was much less depressive. Id. at 526. 11 These contemporaneous records showing symptom fluctuation with medication and 12 stressors, and improvement on appropriate treatment, reasonably support the ALJ’s conclusion 13 that Plaintiff’s mental health limitations during the insured period, while real, were not as 14 extreme as alleged. 15 B. The ALJ Did Not Err in Evaluating Medical Evidence 16 Under regulations applicable to this case, the ALJ is required to articulate the 17 persuasiveness of each medical opinion, specifically with respect to whether the opinions are 18 supported and consistent with the record. 20 C.F.R. § 404.1520c(a)-(c). These findings must be 19 supported by substantial evidence. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 20 Plaintiff argues the ALJ misevaluated the opinion of testifying medical expert Arnold 21 Ostrow, MD. (Dkt. # 9 at 4-5.) Dr. Ostrow testified at the first hearing that his opinion was 22 based on his review of one exhibit and that, because he had never examined Plaintiff, he was not 23 in a position to assess her subjective pain complaints. AR at 39-42. The ALJ found Dr. Ostrow’s 1 opinion unsupported and inconsistent with the medical evidence, and more consistent with 2 evidence after the date last insured. Id. at 10672. Plaintiff avers this was erroneous because Dr. 3 Ostrow reviewed only exhibits from the relevant period. (Dkt. # 9 at 5.) 4 This Court agrees with the Eastern District of Washington that this argument is 5 unpersuasive. See AR at 7886-87. Plaintiff does not explain how Dr. Ostrow’s opinion is 6 supported by or consistent with the medical record from the relevant period, beyond the 7 conclusory assertion that “the record evidence throughout the relevant time provides 8 overwhelming evidence supporting [Plaintiff’s] nerve pain symptoms and limitations.” (Dkt. # 9 9 at 5.) At the hearing, Dr. Ostrow did not identify specific objective findings or otherwise explain 10 why the degree of limitation he assessed was warranted, stating only that his opinion was “based 11 on the objective medical records [he] reviewed, [his] education, training, and experience.” AR at 12 40. The ALJ thus reasonably discounted Dr. Ostrow’s opinion as inadequately supported and 13 inconsistent with the longitudinal evidence. 14 C. The ALJ Did Not Err at Step Three 15 Plaintiff next argues that the ALJ did not adequately explain why her impairment did not 16 meet or equal Listings 12.04, 12.06, and 11.02. (Dkt. # 9 at 5-8.) As to Listing 12.04 and 12.06, 17 the ALJ found that Plaintiff did not satisfy the “paragraph B” criteria. AR at 10664. She 18 determined that the record showed only a mild limitation in understanding, remembering, or 19 applying information (id. at 374, 395, 425, 440, 456, 634, 651, 8215); a moderate limitation in 20 interacting with others (id. at 395, 450, 473, 491, 529, 547, 555, 585, 604, 612, 614, 630, 633-34, 21 646, 651); a mild limitation in concentrating, persisting, or maintaining pace (id. at 614, 633); 22 and a moderate limitation in adapting or managing oneself (id. at 529, 543, 547-48, 555, 557, 23 1 577, 585, 598, 611, 614, 634, 651). Plaintiff offers her own summary of the record but does not 2 directly challenge the ALJ’s reading of these citations. 3 Plaintiff specifically takes issue with the ALJ’s analysis of the “paragraph C” criteria. 4 (Dkt. # 9 at 5-6.) However, the ALJ’s unchallenged “paragraph B” findings support her 5 conclusion that the record does not show at least two years of (1) ongoing treatment or structured 6 support that diminishes symptoms and (2) only minimal capacity to adapt to changes or new 7 demands. AR at 10665. The ALJ explicitly addressed adaptation in her “paragraph B” discussion 8 of adapting or managing oneself. Id. at 10664. Moreover, an ALJ does not commit reversible 9 error by providing a concise Step Three explanation where, as here, she later discusses the same 10 evidence in detail elsewhere in the decision. See Havens v. Kijakazi, 2022 WL 2115109, at *1 11 (9th Cir. June 13, 2022) (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990); Lewis v. 12 Apfel, 236 F.3d 503, 513-14 (9th Cir. 2001)). 13 With respect to Listing 11.02, the ALJ found that the frequency and severity of Plaintiff’s 14 headaches were based largely on her self-reports and that the objective record did not show 15 significant interference with functioning as required by the listing. AR at 10662. As discussed 16 above, the ALJ reasonably discounted Plaintiff’s testimony regarding disabling headaches. Cf. 17 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“An ALJ may reject a treating 18 physician’s opinion if it is based “to a large extent” on a claimant’s self-reports that have been 19 properly discounted as incredible.”). Accordingly, the ALJ did not err at Step Three. 20 D. The ALJ Did Not Err at Step Five 21 At step five, the burden shifts to the Commissioner to demonstrate that the claimant can 22 perform other work that exists in “significant numbers” in the national economy. Tackett v. 23 Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). The Commissioner may satisfy this burden by 1 relying on the testimony of a Vocational Expert (“VE”). Id. at 1101; see also Buck v. Berryhill, 2 869 F.3d 1040, 1051 (9th Cir. 2017) (VE testimony is “inherently reliable”). 3 Plaintiff contends the VE testimony lacks evidentiary value because it was based on an 4 incomplete hypothetical. (Dkt. # 9 at 16-17.) But the ALJ’s hypothetical matched the RFC she 5 ultimately adopted. AR at 10691-95. As explained above, the Court finds no reversible error in 6 the ALJ’s evaluation of the medical evidence or Plaintiff’s subjective complaints. Because the 7 hypothetical included all limitations the ALJ reasonably found supported by substantial 8 evidence, her reliance on the VE’s responsive testimony was proper, and there was no error at 9 Step Five. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 10 V. CONCLUSION 11 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED, and this 12 case is DISMISSED with prejudice. 13 Dated this 19th day of March, 2026. 14 A 15 MICHELLE L. PETERSON United States Magistrate Judge 16 17 18 19 20 21 22 23