Switzer v. Bisignano

1 EASTER U N . S D . I S D T I R S I T C R T I C O T F C W O A U S R H T I NGTON Mar 30, 2026 2 SEAN F. MCAVOY, CLERK 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 8 KENNETH S., NO. 1:25-CV-3157-TOR 9 Plaintiff, ORDER AFFIRMING 10 v. COMMISSIONER’S DENIAL OF BENEFITS UNDER TITLE XVI OF 11 FRANK BISIGNANO, THE SOCIAL SECURITY ACT Commissioner of Social Security 12 Defendant. 13 14 BEFORE THE COURT is Plaintiff’s Motion for judicial review of 15 Defendant’s denial of his application for Title XVI disability benefits under the 16 Social Security Act. (ECF No. 8). This matter was submitted for consideration 17 without oral argument. The Court has reviewed the record and files herein and is 18 fully informed. For the reasons discussed below, the Commissioner’s denial of 19 Plaintiff’s application for benefits under Title XVI of the Social Security Act is 20 AFFIRMED. 1 JURISDICTION 2 The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g), 3 1383(C)(3). 4 STANDARD OF REVIEW 5 It is the administrative law judge’s (ALJ) job to “determine credibility, 6 resolve conflicts in the testimony, and resolve ambiguities in the record.” Lambert 7 v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (quoting Treichler v. Comm'r of Soc. 8 Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014)). The Court will affirm the 9 Commissioner’s decision to deny benefits unless it “is not supported by substantial 10 evidence or is based on legal error.” Lambert, 980 F.3d at 1277 (quoting 11 Treichler, 775 F.3d at 1098) (internal quotations omitted). It is important for the 12 ALJ to provide sufficient reasons for the court to review the basis of an 13 administrative order and to identify where in the record those reasons are reflected. 14 Id. 15 The Court reviews the agency’s findings to determine whether they are 16 supported with substantial evidence. Biestek v. Berryhill, 587 U.S. 97, 99 (2019); 17 42 U.S.C. § 405(g). In this context, the threshold is not high. Biestek, 587 U.S. at 18 103. Substantial evidence is present when there is “more than a mere scintilla.” 19 Biestek, 587 U.S. at 103 (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 20 U.S. 197, 229 (1938)). In other words, “such relevant evidence as a reasonable 1 mind might accept as adequate to support a conclusion.” Biestek, 587 U.S. at 103 2 (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). 3 The Court will not reverse for errors that are harmless. Molina v. Astrue, 4 674 F.3d 1104, 1117 (9th Cir. 2012). An error is harmless if it is “inconsequential 5 to the ultimate nondisability determination.” Molina, 674 F.3d at 1115 (quoting 6 Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). To 7 effectuate this, the Court reviews the record as a whole to determine whether the 8 error altered the result of the case. Molina, 674 F.3d at 1115. 9 FIVE STEP SEQUENTIAL EVALUATION PROCESS 10 The Commissioner uses a five-step sequential process to decide whether a 11 claimant is considered disabled. 20 C.F.R. § 416.920(a)(1). The Commissioner 12 considers all evidence in the record to make this determination. 20 C.F.R. § 13 416.920(a)(3). Disability is defined “as the inability to do any substantial gainful 14 activity by reason of any medically determinable physical or mental impairment 15 which can be expected to result in death or which has lasted or can be expected to 16 last for a continuous period of not less than 12 months.” 20 C.F.R. § 416.905(a). 17 This requires a severe impairment that makes the claimant unable to complete the 18 claimant’s past relevant work or any other substantial gainful work. 20 C.F.R. § 19 416.905(a). 20 At each step, the Commissioner may find a claimant either not disabled or 1 disabled. 20 C.F.R. § 416.920(a)(4). If the claimant is found disabled, then the 2 process stops and the determination is made. 20 C.F.R. § 416.920(a)(4). 3 However, during step three and four, the Commissioner assesses residual function 4 capacity (“RFC”). Id. Then, during steps four and five, the Commissioner 5 evaluates the claimant’s claim. Id. 6 At step one, the Commissioner considers the claimant’s work activity and if 7 the Commissioner decides that the claimant is engaging in substantial gainful 8 activity, then the Commissioner will find the claimant is not disabled. 20 C.F.R. § 9 416.920(a)(4)(i). Substantial gainful activity is both substantial and gainful work 10 activity. 20 C.F.R. § 416.972. Substantial work activity means “doing significant 11 physical or mental activities” and may be done on a part-time basis, with less pay, 12 or less responsibility than before. 20 C.F.R. § 416.972(a). Gainful work activity is 13 work done for pay or profit even if the profit is not realized. 20 C.F.R. § 14 416.972(b). Put together, “[s]ubstantial gainful activity means work that—(a) 15 [i]nvolves doing significant and productive physical or mental duties; and (b) [i]s 16 done (or intended) for pay or profit.” 20 C.F.R. § 416.910. 17 At step two, the Commissioner considers the claimant’s medical severity of 18 the claimant’s impairment(s). 20 C.F.R. § 416.920(a)(4)(ii). If the claimant does 19 not have either a physical or mental impairment that is severely medically 20 determinable, or a combination of impairments satisfying the requirements the 1 Commissioner will deem the claimant as not disabled. 20 C.F.R. § 2 416.920(a)(4)(ii). 3 At step three, the Commissioner continues to consider the claimant’s 4 medical severity of claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(iii). If the 5 claimant falls under one of the listings in appendix 1, fulfills this subpart, and the 6 durational requirement, then the Commissioner will determine the claimant as 7 disabled. 20 C.F.R. § 416.920(a)(4)(iii). 8 At step four, the Commissioner shifts to address the claimant’s RFC and 9 work experience to see whether the claimant can make an adjustment to other 10 work. 20 C.F.R. § 416.920(a)(4)(iv). If the Commissioner decides that the 11 claimant can still complete past relevant work, then the Commissioner rules the 12 claimant as not disabled. 20 C.F.R. § 416.920(a)(4)(iv). 13 At step five, the Commissioner continues to review the claimant’s residual 14 functional capacity with the claimant’s age, education, and work experience to 15 settle on any possible adjustments to other work. 20 C.F.R. § 416.920(a)(4)(v). If 16 this is possible, then the Commissioner will rule that the claimant is not disabled. 17 However, if the Commissioner establishes the opposite, then the claimant is 18 deemed as disabled. 20 C.F.R. § 416.920(a)(4)(v). 19 Once a claimant proves that: “(1) that she is not presently engaged in a 20 substantial gainful activity; (2) that her disability is severe, and (3) that her 1 impairment meets or equals one of the specific impairments described in the 2 regulations”, then the claimant must be found disabled. Hoopai v. Astrue, 499 3 F.3d 1071, 1074 (9th Cir. 2007) (quoting Thomas v. Barnhart, 278 F.3d 947, 955 4 (9th Cir. 2002)). However, if the stated impairment does not meet the requirement 5 listed in the regulations, the claimant may “still establish a prima facie case of 6 disability by proving at step four that ‘in addition to the first two requirements, ... 7 she is not able to perform any work that she has done in the past.’” Hoopai, 499 8 F.3d at 1074 (quoting Thomas, 278 F.3d at 955). After the claimant establishes his 9 or her prima facie case at step five, the burden shifts to the agency to prove that 10 “the claimant can perform a significant number of other jobs in the national 11 economy.” Hoopai, 499 F.3d at 1074–75 (quoting Thomas, 278 F.3d at 955). 12 ALJ FINDINGS 13 Previously, Plaintiff filed a Title II disability claim that resulted in the ALJ’s 14 denial of the claim in 2018. ECF No. 8 at 2. However, this was subsequently 15 remanded in February of 2020. Id. On remand, the ALJ denied Plaintiff’s claim. 16 Id. In that decision, the ALJ found that Plaintiff exhibited severe impairments, but 17 that Plaintiff did not meet or equal the required listing and issued a specific RFC. 18 Id. Accordingly, Plaintiff’s application was denied. ECF No. 8 at 3. 19 On July 5, 2022, Plaintiff filed Title II and Title XVI disability claims 20 alleging an onset of August 1, 2014. ECF No. 8 at 3. The ALJ held a hearing in 1 July 2024. Id. On August 21, 2024, the ALJ issued a denial finding that 2 Acquiescence Ruling (AR) 97-4(9) was not applicable and did not afford res 3 judicata effect regarding Plaintiff’s prior ALJ determination. Id. The ALJ did not 4 find any severe disorders and ended the decision at step 2 of the analysis. Id. The 5 Appeals Council denied review. Id. 6 At step one, the ALJ determined that Plaintiff did not engage in substantial 7 gainful activity since the application date, July 25, 2022. Tr. 20. The ALJ 8 determined Plaintiff had impairments including alcohol intoxication, contusion of 9 rib on left side, traumatic preorbital ecchymosis of left eye, dyspnea, and history of 10 hypertension. Id. The ALJ recognizes that Plaintiff alleged other impairments but 11 states there was a lack of evidence. Id. 12 Furthermore, the ALJ determined Plaintiff did not have an impairment or 13 combination of impairments that significantly limited his ability for 12 consecutive 14 months. Tr. 20. The ALJ found that the claimant’s impairments could reasonably 15 cause some but not all of the alleged symptoms. Tr. 22. Also, the ALJ stated that 16 claimant’s statements concerning the intensity, persistence and limiting effects of 17 the symptoms were not consistent with the medical evidence and record. Id. 18 Therefore, Plaintiff was not disabled as defined under the SSA. Tr. 23-24. 19 // 20 // 1 ISSUES 2 I. Whether the ALJ reversibly erred by not giving res judicata effect to the ALJ’s prior decision regarding Plaintiff’s Title II application. 3 II. Whether the ALJ reversibly erred by not properly assessing the 4 medical opinions. DISCUSSION 5 I. The ALJ did not err by not giving res judicata effect to the ALJ’s 6 prior decision on Title II regarding Plaintiff’s current Title XVI 7 application. 8 Plaintiff argues the ALJ erred when he did not apply res judicata from 9 Plaintiff’s previous Title II decision to Plaintiff’s Title XVI claim. ECF No. 8 at 5- 10 10. Plaintiff argues that under Lyle v. Sec’y of Health & Hum. Servs., 700 F.2d 11 566 (9th Cir. 1983), a claimant is entitled to res judicata effect when the claimant’s 12 initial Title II claim was denied but brought a subsequent Title XVI claim. ECF 13 No. 8 at 5. Plaintiff furthers that res judicata effect applies to administrative 14 decisions, not only to claims under the same disability title. ECF No. 8 at 5-6 15 (citing Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988)). Defendant responds 16 that res judicata does not apply because there is not a previous final decision on an 17 application under the same title. ECF No. 13 at 2. Defendant argues that Lyle did 18 not hold that res judicata principles must be applied and that the holding was 19 limited to that case. ECF No. 13 at 3. 20 “The principles of res judicata apply to administrative decisions, although 1 the doctrine is applied less rigidly to administrative proceedings than to judicial 2 proceedings.” Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). In Lyle v. 3 Sec’y of Health & Hum. Servs., 700 F.2d 566 (9th Cir. 1983), the Court applied res 4 judicata to the decision under a different title. The Court held “in absence of proof 5 of change, a prior ruling respecting disability gives rise to a presumption that the 6 condition continues to exist.” Lyle v. Sec'y of Health & Hum. Servs., 700 F.2d 566, 7 568 (9th Cir. 1983). The Court clarified that in addition to applicability to prior 8 disability determinations, this should be applied in situations where the claimant 9 was determined as not disabled. Id. The district courts in the Ninth Circuit apply a 10 presumption of a continuing non-disability unless the claimant demonstrates a 11 change in circumstances. See Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); 12 Dallas v. Chater, 105 F.3d 664 (9th Cir. 1997); Jeremy U. v. O'Malley, 2024 WL 13 171320, at *7 (E.D. Wash. Jan. 16, 2024). 14 However, after Lyle and Chavez, Acquiescence Ruling (AR) 97-4(9) further 15 clarified the applicability of res judicata in social security cases. SSAR 97-4(9), 16 1997 WL 742758 (Dec. 3, 1997). Acquiescence Ruling (AR) 97-4(9), provides 17 that Chavez, “applies only to cases involving a subsequent disability claim with an 18 unadjudicated period arising under the same title of the Act as a prior claim on 19 which there has been a final decision by an ALJ or the Appeals Council that the 20 claimant is not disabled.” Id. A published ruling “is binding on all components of 1 the Social Security Administration in accordance with [20 CFR Part 422].” 2 However, “[r]ulings do not have the force and effect of the law or regulations but 3 are to be relied upon as precedents in determining other cases where the facts are 4 basically the same.” Heckler v. Edwards, 465 U.S. 870, 874 n.3 (1984) (citation 5 omitted). 6 Plaintiff argues that Lyle is controlling binding precedent not the AR ruling 7 and district court cases. ECF No. 14 at 2-3. While this is true, Lyle was decided in 8 1983, long before the AR decision and other cases were established. Between the 9 AR decision, caselaw, and secondary support, it is clear the intent of the SSA was 10 to apply res judicata effect to decisions under the same titles. 11 However, this district court further supported the AR decision and 12 applicability of these authorities regarding subsequent decisions under a different 13 title by stating “[t]he provisions of Chavez and AR 97-4(9) apply only when the 14 subsequent claim ‘arises under the same title of the Social Security Act’ as the 15 prior denied claim.” Heather S. v. Kijakazi, 2023 WL 2581311, at *5 (E.D. Wash. 16 Mar. 20, 2023) (quoting SSAR 97-4(9), 1997 WL 742758 (Dec. 3, 1997)). In 17 further support, while not binding, the Hearings, Appeals, and Litigation Law 18 Manual, a guide used by the SSA, further supports this idea. HALLEX I-2-4-40. 19 It states that 20 when a prior determination or decision with respect to the same party, facts, and issue(s) has become administratively final, the doctrine of 1 administrative res judicata may be used to dismiss a request for hearing (RH) entirely or to refuse to consider an issue(s) on a subsequent 2 application arising from the same title of the Act. 3 HALLEX I-2-4-40. 4 Furthermore, “under the SSA's regulations, administrative res judicata 5 applies when the agency has made a previous final determination or decision 6 regarding the claimant's rights on the same facts and issues.” 20 C.F.R. § 7 404.957(c)(1). The titles under the SSA, while similar, are not the same 8 applications or issues. See Generally Smith v. Berryhill, 587 U.S. 471, 475 (2019). 9 Following, if it were interpreted as Plaintiff suggests, this interpretation may help 10 but also hinder many claimants’ applications under different titles. 11 Plaintiff argues that Lyle is controlling binding precedent not the AR ruling 12 and district court cases. ECF No. 14 at 2-3. While this is true, Lyle was decided in 13 1983, long before the AR decision and other cases were established. Between the 14 AR decision, caselaw, and secondary support, it is clear the intent of the SSA was 15 to that res judicata effect should not be applied to decisions under different titles. 16 It follows that cases continuously follow the ideas laid out in the AR 17 decision, too. Julie A. L. v. Comm'r of Soc. Sec., 2019 WL 312275, at *2 (W.D. 18 Wash. Jan. 24, 2019), aff'd sub nom. Loewen v. Saul, 809 F. App'x 434 (9th Cir. 19 2020); Kevin H. v. Kijakazi, 2023 WL 3293281, at *6 (E.D. Wash. May 5, 2023); 20 Reed v. Saul, 834 F. App'x 326, 328 (9th Cir. 2020). Even more so, many cases 1 follow the other precedents and ideas laid out in Lyle but not necessarily that res 2 judicata applies to different titles. See Oatis v. Berryhill, 2017 WL 6403088, at *4 3 (C.D. Cal. Dec. 14, 2017). Additionally, Plaintiff does not cite caselaw that backs 4 this precedent beyond Lyle. Therefore, the ALJ did not err when he did not apply 5 res judicata to Plaintiff’s application. 6 Plaintiff continues that he filed applications under both Title II and XVI. 7 ECF No. 8 at 6. However, the agency only processed Plaintiff’s Title XVI claim, 8 but “later amended his onset to after the date last insured (DLI) of December 31, 9 2019.” ECF No. 8 at 6. While this may be true, at issue is Plaintiff’s current Title 10 XVI application denial. There is not another application to review. Plaintiff does 11 not identify an error. However, Defendant clarifies that there was not an 12 unadjudicated Title II period remaining under Plaintiff’s application. Tr. 102, 109. 13 Therefore, there was no reason to process that application. ECF No. 13 at 4. 14 Plaintiff contends that the change in Plaintiff’s age status is considered a 15 changed circumstance to rebut the presumption of non-disability. ECF No. 8 at 7. 16 Furthermore, Plaintiff argues that if res judicata was applied, disability would be 17 compelled and remand for further proceedings is necessary at a minimum. ECF 18 No. 8 at 8. As discussed, because res judicata effect is not applicable, this 19 argument fails. For the same reasons, Plaintiff’s argument about, on remand, the 20 ALJ should order consultative exams is moot. ECF No. 8 at 9-10. 1 The Court does not find that the ALJ erred in rejecting to apply res judicata 2 to Plaintiff’s current application under a different title. 3 II. The ALJ properly assessed the medical evidence and developed 4 the record. 5 While Plaintiff does not concede on the issue of res judicata, Plaintiff argues 6 that the ALJ failed to properly establish the record. ECF No. 8 at 12-13. Plaintiff 7 contends that the ALJ should have ordered consultative exams at the hearing. ECF 8 No. 8 at 13. Plaintiff argues that the ALJ did not make every reasonable effort to 9 develop the record, there was evidence of impairment, and that the ALJ did not 10 consider Plaintiff’s reasons for not receiving treatment or care. ECF No. 8 at 9-16. 11 Plaintiff states these were not harmless errors. ECF No. 8 at 13-16. Defendant 12 responds that the ALJ attempted to contact Plaintiff to order consultative 13 examinations but was not successful. ECF No. 13 at 6. 14 First, Plaintiff alleges that the initial alleged date was beginning on August 15 1, 2014, and was not amended until the hearing. ECF No. 8 at 11. Plaintiff states 16 that the ALJ erred by failing to request evidence from the prior folder when 17 assessing Plaintiff’s claim. Id. As previously discussed, Plaintiff’s Title II 18 application was reasonably not analyzed. Tr. 17-18. However, considering 19 Plaintiff amended the onset date to 2022, this would only amount to harmless error 20 and would not change the outcome of the case. 1 Second, Plaintiff alleges that the ALJ did not review the record and did not 2 consider evidence including imaging, exam showing reduced strength, Plaintiff’s 3 reliance on his cane, amputation of part of his thumb, decreased grip strength, the 4 agency’s physician stating that Plaintiff is limited to light exertion and that 5 Plaintiff must stop every 75 to 100 feet. ECF No. 8 at 11-12. Plaintiff furthers that 6 as a result; the spinal disorder and hand complaints contradict the ALJ’s 7 determination that these were not medically determinable impairments. ECF No. 8 8 at 12. 9 Defendant states the ALJ provided sufficient evidence of their analysis 10 showing that these allegations are not supported. ECF No. 13 at 7. Plaintiff 11 responds that the ALJ only cited two medical records for evidence of normal 12 exams and is not supported. ECF No. 14 at 10. It is worth noting that the medical 13 record is quite light. Regardless, the ALJ provided evidence of normal exams, 14 mood, and attitude. Tr. 22-23, 350. The ALJ stated that this contradicted the 15 Plaintiff’s allegations. Tr. 22-23. Plaintiff’s allegations were not supported by the 16 record. Id. “It is not the court's role to ‘second-guess’ an ALJ's reasonable 17 interpretation of a claimant's testimony.” Smartt v. Kijakazi, 53 F.4th 489, 500 18 (9th Cir. 2022). Therefore, the ALJ did not err, and his interpretation is 19 reasonable. 20 Third, Plaintiff states that the ALJ failed to consider Plaintiff’s reasons for 1 not receiving treatment or care. Plaintiff provides reasons such as 2 being told there was nothing that could be done for his spine, insurance denials for physical therapy, lack of transportation, limited funds, lack 3 of motivation related to depression, stopping opioids due to a fear of addiction and lack of efficacy, and the loss of a spouse who helped 4 manage such matters 5 ECF No. 8 at 12 (citing Tr. 39-40, 44-47). 6 During the hearing, Plaintiff stated that concerning his spinal problem his 7 insurance did not cover therapy, but that he was doing it on his own. Tr. 39. 8 Plaintiff stated that a neurosurgeon did not want to try surgery because there was a 9 good chance that he could become paralyzed and see if it got any worse. Id. There 10 was “nothing that they could do for [him].” Tr. 40. Plaintiff’s failure to receive 11 primary care was mostly because of transportation issues but that he uses his 12 friends to receive groceries and to get around. Id. Plaintiff alleges money, 13 depression and the loss of his wife as issues to his limited ability to travel. Tr. 44- 14 47. 15 Defendant responds that Plaintiff received emergency room treatment and 16 appeared “very well” and rode the city bus. ECF No. 13 at 6 (citing Tr. 23, 350). 17 The ALJ found the medical evidence exhibited generally normal exams, studies, 18 mood, movement, etc. Tr.22-23, 104-04, 250-51, 353. The ALJ found that 19 Plaintiff visited the emergency twice in 2023. Tr. 22. The first visit Plaintiff 20 complained of chest pain, alcohol intoxication, and some emotional complaints. 1 Tr. 22, 353-54. They noted his history of hypertension and his blood pressure 2 measured 152/77. Tr. 22. During the exam, Plaintiff had normal mood, affect, 3 heart rate, rhythm and was fully oriented. Id. His ECG “show tachycardic sinus 4 rhythm at a rate of 110 with normal axis and intervals. Id. After reviewing the 5 records, he was stable for discharge. Tr. 22. 6 The second visit consisted of complaints of head, neck, shoulder and back 7 pain due to a fall on the city bus. Tr. 22, 350-52. Plaintiff had a full range of 8 motion, no tenderness, and normal strength and sensation. Id. He had a normal 9 mood, and imaging showed negative results. Id. Diagnosis was listed as traumatic 10 periorbital ecchymosis of left eye and contusion of rib on the left side. Id. 11 Furthermore, the state agency medical consultants did not find sufficient 12 evidence to establish impairments. Tr. 22, 115-18, 120-123. The ALJ determined 13 that the record provided emergency room records from two visits where evidence 14 showed medically determinable impairment but non-severe. Tr. 23. This 15 contradicted part of the Plaintiff’s claims of not receiving treatment for 3-4 years. 16 Tr. 22-23. However, the ALJ noted that he did not have a primary care physician 17 and did not receive any specialized treatment. Tr. 23. The ALJ found that 18 claimant’s allegations about his walking and movement capabilities were not 19 supported by the objective records showing normal results. Tr. 23, 282. 20 Also, the request to complete consultative examinations was pursuant to fix 1 inconsistencies and insufficiencies. ECF No. 13 at 7; 20 C.F.R. § 416.917 (stating 2 consultative exams help when there is not sufficient evidence about a claimant’s 3 impairments). However, Defendant did not respond to these letters and other 4 outreach attempts. ECF No. 13 at 6 (citing Tr. 117, 121). This failure can result in 5 non-disability result. See § 416.918. 6 The ALJ must have objective medical evidence to determine whether a 7 claimant has an impairment. See C.F.R. §§ 416.920b; 416.916. This burden is on 8 the claimant. 20 C.F.R. § 416.912(a). As established, the ALJ considered 9 Plaintiff’s history of treatment and some of the reasons for failure to receive 10 treatment. Tr. 22-23. However, the ALJ had sufficient evidence and reasons to 11 contradict Plaintiff’s claims and statements. Tr. 22-23. Therefore, even if the ALJ 12 could have considered other reasons, it was only harmless error. 13 Lastly, Plaintiff states that the ALJ should have developed the evidence with 14 consultative exams before issuing denial. ECF No. 8 at 13. Defendant responds 15 that they did try to reach out but did not receive a response. ECF No. 13 at 6. The 16 record reflects that Authorized Representatives attempted to contact Plaintiff with 17 no success. ECF No. 13 at 6; Tr. 117; 121. While Plaintiff states these should 18 have been ordered at the hearing, the ALJ made reasonable attempts to conduct 19 exams. As Defendant states, Plaintiff’s counsel did not take further issue with this 20 at the time. ECF No. 13 at 8; Tr. 35-37. It is the claimant’s burden to prove impairment rather than the ALJ. 20 C.F.R. § 416.912(a). The ALJ did not err. 2|| ACCORDINGLY, IT IS HEREBY ORDERED: 3 1. Plaintiff's Opening Brief (ECF No. 8) is DENIED. 4 2. Commissioner’s Opening Brief (ECF No. 13) 1s GRANTED. The final 5 decision of the Social Security Commissioner is AFFIRMED. 6 The District Court Executive is directed to enter this Order, enter 7|| JUDGMENT for Defendant, furnish copies to counsel, and CLOSE the file. 8 DATED March 30, 2026. 9 Se 5 Pe fg eo Ds <> United States District Judge 11 12 13 14 15 16 17 18 19 20 ORDER AFFIRMING COMMISSIONER’S DENIAL OF BENEFITS UNDER