Gerard v. Bisignano

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 Kevin Andre G., Case No. 2:25-cv-01776-NJK 7 Plaintiff(s), ORDER 8 v. [Docket No. 12] 9 Frank Bisignano, 10 Defendant(s). 11 This case involves judicial review of administrative action by the Commissioner of Social 12 Security (“Commissioner”) denying Plaintiff’s application for benefits pursuant to Titles II and 13 XVI of the Social Security Act. Pending before the Court is Plaintiff’s opening brief seeking 14 reversal and remand. Docket No. 12. The Commissioner filed a responsive brief in opposition. 15 Docket No. 14. Plaintiff filed a reply. Docket No. 15. The parties consented to resolution of this 16 matter by magistrate judge. See Docket Nos. 2-3. 17 I. STANDARDS 18 A. Disability Evaluation Process 19 The standard for determining disability is whether a social security claimant has an 20 “inability to engage in any substantial gainful activity by reason of any medically determinable 21 physical or mental impairment which can be expected . . . to last for a continuous period of not 22 less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). That 23 determination is made by following a five-step sequential evaluation process. Bowen v. Yuckert, 24 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§ 404.1520, 416.920). The first step addresses 25 whether the claimant is currently engaging in substantial gainful activity. 20 C.F.R. §§ 26 404.1520(b), 416.920(b).1 The second step addresses whether the claimant has a medically 27 1 The five-step process is largely the same for both Title II and Title XVI claims. For a 28 Title II claim, however, a claimant must also meet insurance requirements. 20 C.F.R. § 404.130. 1 determinable impairment that is severe or a combination of impairments that significantly limits 2 basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). The third step addresses whether the 3 claimant’s impairments or combination of impairments meet or medically equal the criteria of an 4 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 5 404.1525, 404.1526, 416.920(d), 416.925, 416.926. There is then a determination of the 6 claimant’s residual functional capacity, which assesses the claimant’s ability to do physical and 7 mental work-related activities. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step addresses 8 whether the claimant has the residual functional capacity to perform past relevant work. 20 C.F.R. 9 §§ 404.1520(f), 416.920(f). The fifth step addresses whether the claimant is able to do other work 10 considering the residual functional capacity, age, education, and work experience. 20 C.F.R. §§ 11 404.1520(g), 416.920(g). 12 B. Judicial Review 13 After exhausting the administrative process, a claimant may seek judicial review of a 14 decision denying social security benefits. 42 U.S.C. § 405(g). The Court must uphold a decision 15 denying benefits if the proper legal standard was applied and there is substantial evidence in the 16 record as a whole to support the decision. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 17 Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as 18 a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 19 U.S. 97, 103 (2019). “[T]he threshold for such evidentiary sufficiency is not high.” Id. 20 II. BACKGROUND 21 A. Procedural History 22 On July 12, 2021, Plaintiff filed an application for disability insurance benefits and 23 supplemental security income with an alleged onset date of April 30, 2020. See, e.g., 24 Administrative Record (“A.R.”) 285-92. On July 18, 2022, Plaintiff’s application was denied 25 initially. A.R. 119-20. On June 8, 2023, Plaintiff’s claim was denied on reconsideration. A.R. 26 121-22. On July 7, 2023, Plaintiff filed a request for a hearing before an administrative law judge 27 (“ALJ”). A.R. 179-80. On June 13, 2024, Plaintiff, Plaintiff’s representative, and a vocational 28 expert appeared for a hearing before ALJ James Conlon. A.R. 57-98. On August 9, 2024, the ALJ 1 issued an unfavorable decision finding that Plaintiff had not been under a disability. A.R. 37-56. 2 On July 24, 2025, the ALJ’s decision became the final decision of the Commissioner when the 3 Appeals Council denied Plaintiff’s request for review. A.R. 7-12. On September 20, 2025, 4 Plaintiff commenced this suit for judicial review. Docket No. 1. 5 B. The Decision Below 6 The ALJ’s decision followed the five-step sequential evaluation process set forth in 20 7 C.F.R. § 416.920(a). A.R. 40-50. At step one, the ALJ found that Plaintiff met the insured status 8 requirements and had not engaged in substantial gainful activity since the alleged onset date. A.R. 9 41. At step two, the ALJ found that Plaintiff has the following severe impairments: diabetes, 10 neuropathy, retinopathy, hypertension, depression, anxiety, somatic symptom disorder, post- 11 traumatic stress disorder (PTSD). A.R. 41-42. At step three, the ALJ found that Plaintiff does not 12 have an impairment or combination of impairments that meets or medically equals the severity of 13 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. A.R. 42-43. The ALJ 14 found that Plaintiff has the residual functional capacity to 15 perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can occasionally balance and never climb 16 ladders, ropes or scaffolds. He should avoid concentrated exposure to hazards such as machinery and unprotected heights. He is limited 17 to simple routine and repetitive tasks and simple work-related decisions. Changes in the work setting are limited to simple 18 workplace changes. He is also limited to occasional interaction with the public. 19 20 A.R. 43-48. At step four, the ALJ found Plaintiff was unable to perform any past relevant work. 21 A.R. 49. At step five, the ALJ found that jobs exist in significant numbers in the national economy 22 that Plaintiff can perform based on his age, education, work experience, and residual functional 23 capacity. A.R. 49-50. In doing so, the ALJ defined Plaintiff as a younger individual (35 years 24 old) as of the alleged onset date with at least a high school education. A.R. 49. The ALJ found 25 the transferability of job skills to be immaterial. A.R. 49. The ALJ considered Medical Vocational 26 Rules, which provide a framework for finding Plaintiff not disabled, along with vocational expert 27 testimony that an individual with the same residual functional capacity and vocational factors 28 1 could perform work as an office helper, laundry sorter, and folder. A.R. 49-50. Based on these 2 findings, the ALJ found Plaintiff not disabled. A.R. 50. 3 III. ANALYSIS 4 Plaintiff raises two arguments on appeal: (1) that the ALJ erred in discounting Plaintiff’s 5 testimony and (2) that the ALJ erred in rejecting the medical opinion of Dr. Alton Walters. The 6 Court addresses each argument below. 7 A. Plaintiff’s Testimony 8 Plaintiff argues that the ALJ erred in discounting his testimony regarding visual 9 impairment. See Docket No. 12 at 6-11; see also Docket No. 15 at 3-5. The Commissioner 10 counters that the ALJ was permitted to discount this testimony given that Plaintiff’s allegations 11 were inconsistent with the medical record and given that Plaintiff’s impairment improved with 12 treatment. Docket No. 14 at 4-8. The Commissioner argues further that Plaintiff failed to establish 13 that any error in this respect was consequential to the non-disability finding. Id. at 8. The 14 Commissioner has the better argument. 15 The ALJ is required to engage in a two-step analysis to evaluate a claimant’s testimony as 16 to pain and other symptoms: (1) determine whether the individual presented objective medical 17 evidence of an impairment that could reasonably be expected to produce some degree of pain or 18 other symptoms alleged; and (2) if so, whether the intensity and persistence of those symptoms 19 limit an individual’s ability to perform work-related activities. See Social Security Ruling 16-3p. 20 In the absence of evidence of malingering, an ALJ may only reject a claimant’s testimony about 21 the severity of symptoms by giving specific, clear, and convincing reasons. See Smartt v. Kijakazi, 22 53 F.4th 489, 499 (9th Cir. 2022). Factors that an ALJ may consider include inconsistent daily 23 activities, an inconsistent treatment history, and other factors concerning the claimant’s functional 24 limitations. See Social Security Ruling 16-3p. If an ALJ’s determination to discount a claimant’s 25 testimony is supported by substantial evidence, a court should not second-guess that determination. 26 See Smartt, 53 F.4th at 500. “Where the evidence is susceptible to more than one rational 27 interpretation, the ALJ’s decision must be affirmed.” Id. at 494 (quotations and citation omitted). 28 1 In this case, the ALJ acknowledged Plaintiff’s testimony of blurred vision from diabetic 2 retinopathy, determined that the objective evidence could reasonably be expected to produce some 3 degree of pain or other symptoms as alleged, and discounted Plaintiff’s testimony as to intensity, 4 persistence, and limiting effect. See A.R. 44. The ALJ reached the latter conclusion by finding 5 the testimony to be inconsistent with the medical record and that the symptoms were controlled 6 with treatment. A.R. 45. The Court need not ultimately determine whether the ALJ erred in this 7 respect because the Commissioner is correct that Plaintiff has not shown that any such error would 8 have been consequential to the non-disability finding. See Docket No. 14 at 8. A claimant bears 9 the burden on appeal of establishing not just that the ALJ erred, but also that the error is harmful. 10 Ludwig v. Astrue, 681 F.3d 1047 1054 (9th Cir. 2012) (discussing Shinseki v. Sanders, 556 U.S. 11 396 (2009)).2 “Simply arguing that the ALJ erred in crafting the RFC is insufficient to establish 12 harmful error; the claimant must explain why the alleged error impacted the ultimate non-disability 13 determination.” Jessica V. v. Bisignano, 807 F. Supp. 3d 1225, 1234 (D. Nev. 2025). Courts 14 routinely find harmless error when the claimant identifies no additional limitations beyond those 15 already incorporated into the RFC. See, e.g., Champagne v. Colvin, 582 Fed. Appx. 696, 697 (9th 16 Cir. 2014). Courts also routinely find harmless error when the claimant fails to explain how the 17 disputed impairment would be inconsistent with the jobs identified by the vocational expert. See, 18 e.g., Jones v. O’Malley, 2024 WL 5182413, at *5 (C.D. Cal. Jan. 12, 2024). 19 Although Plaintiff argues that the ALJ erred in discounting his testimony regarding blurred 20 vision, the RFC already includes a related limitation to avoid concentrated exposure to hazards. 21 See, e.g., A.R. 47 (“because of the claimant’s retinopathy . . ., environmental limitations against 22 hazards are indicated”). Plaintiff does not identify any additional limitations that he contends 23 should have been included in the RFC and Plaintiff does not explain how blurred vision would be 24 incompatible with the jobs of office helper, laundry sorter, and folder. 25 26 27 2 The motion argues for reversal by claiming the vocational witness testimony lacks evidentiary value, but the case cited still requires a showing that any such error was harmful. See 28 Leach v. Kijakazi, 70 F.4th 1251, 1255 (9th Cir. 2023). 1 Accordingly, Plaintiff has failed to establish any harmful error as to his testimony regarding 2 blurred vision. 3 B. Medical Opinion of Dr. Walters 4 Plaintiff argues that the ALJ erred in discounting the opinion of Dr. Alton Walters for only 5 occasional handling. Docket No. 12 at 12-14; see also Docket No. 15 at 5-7. The Commissioner 6 responds that the ALJ was permitted to discount this opinion based on a lack of supportability and 7 consistency. Docket No. 14 at 8-12. The Commissioner has the better argument. 8 When evaluating medical evidence, an ALJ cannot “defer or give any specific evidentiary 9 weight, including controlling weight, to any medical opinion(s) or prior administrative medical 10 finding(s).” 20 C.F.R. § 404.1520c(a). The ALJ must “articulate how [the ALJ] considered the 11 medical opinions and prior administrative medical findings” based on certain specified factors. Id. 12 The most important factors are supportability and consistency, which the ALJ must address. 20 13 C.F.R. § 404.1520c(b). “Supportability means the extent to which a medical source supports the 14 medical opinion by explaining the ‘relevant . . . objective medical evidence.’ Consistency means 15 the extent to which a medical opinion is ‘consistent . . . with the evidence from other medical 16 sources and nonmedical sources in the claim.’” Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 17 2022) (quoting 20 C.F.R. §§ 404.1520c(c)(1) & (c)(2)). “[T]he decision to discredit any medical 18 opinion, must simply be supported by substantial evidence.” Id. at 787. 19 Dr. Walters opined that Plaintiff is limited to occasional handling because he has pins-and- 20 needles feeling in his hands and cannot feel the numbness neurologically. A.R. 894. The ALJ 21 discounted that opinion because it lacked supportability and consistency. A.R. 47. As to 22 supportability, the ALJ explained that Plaintiff reported significant improvement by taking 23 Gabapentin, as well as engaging in daily activities such as cooking, cleaning, and all of the other 24 “usual activities of daily living.” A.R. 47 (citing 889-890). As to consistency, the ALJ explained 25 that Plaintiff’s electromyogram showed normal results and his nerve conduction study showed 26 only mild bilateral ulnar sensory nerve neuropathy with the results otherwise being normal. A.R. 27 28 1} 47 (citing A.R. 940-41). The ALJ’s findings are supported by substantial evidence and the reasons articulated are legally sound.? 3 Accordingly, Plaintiff has failed to establish any error as to the ALJ discounting Dr. Walters’ opinion on occasional handling. CONCLUSION 6 The decision below is AFFIRMED. The Clerk’s Office is instructed to ENTER FINAL 7| JUDGMENT accordingly and to CLOSE this case. 8 IT IS SO ORDERED. 9 Dated: June 2, 2026 Nancy J. Koppe 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 ———__________ > The other arguments advanced by Plaintiff are not persuasive. The ALJ did not act beyond his capacity as a layperson in assessing the record. See Jessica V., 807 F. Supp. 3d at 1230-31. Plaintiff's argument that a finding of feeling in the fingertips cannot undermine a limitation to occasional handling is inconsistent with the fact that Dr. Walters’ own opinion for that limitation was predicated on lack of feeling. See A.R. 894. Hence, the Court agrees with the Commissioner on these issues. See Docket No. 14 at 10-12.