superseded in 21 part on other grounds by statute
How later courts described this case
- superseded in 21 part on other grounds by statute
- considering evidence of 22 improvement
- The ALJ may consider “ordinary techniques of 19 20 credibility evaluation,” such as reputation for lying, prior inconsistent 21 statements concerning symptoms, and other testimony that “appears 22 less than candid.”
- requiring the 21 ALJ to sufficiently explain why he discounted claimant’s symptom 22 claims
Written by the judges who cited it.
The opinion
1
FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
2
Oct 14, 2025
3
SEAN F. MCAVOY, CLERK
4 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
5
6
KRISTINE K.,1 Case No. 1:25-cv-03016-EFS
7
Plaintiff,
8
ORDER AFFIRMING THE
v. ALJ’S DENIAL OF BENEFITS
9
10 FRANK BISGNANO,
Commissioner of Social Security,
11
Defendant.
12
13
14
Due to lumbar, thoracic, and cervical degenerative joint disease;
15
postural orthostatic tachycardia syndrome; mast cell activation
16
17 syndrome; depressive disorder, migraine headaches, asthma-like
18 symptoms, and gastrointestinal issues, Plaintiff Kristine K. claims she
19
20
21 1 For privacy reasons, Plaintiff is referred to by first name and last
22
initial or as “Plaintiff.” See LCivR 5.2(c).
23
1 is unable to work full-time and applied for supplemental security
2 income benefits. She appeals the denial of benefits by the
3
Administrative Law Judge (ALJ) on the grounds that the ALJ
4
improperly analyzed the credibility of Plaintiff’s subjective complaints
5
and the third-party witness statement, and the ALJ erred in his
6
evaluation of the medical opinion of MFT-Intern William Brobst.
7
8 Although the record reflects that Plaintiff’s impairments limit her
9 physically, the ALJ’s nondisability is adequately explained and
10
supported by substantial evidence. For the reasons that follow, the
11
ALJ’s decision is affirmed.
12
I. Background
13
In April 2021, Plaintiff filed an application for benefits under
14
15 Title 16, claiming disability beginning October 29,2020, based on the
16 physical impairments noted above.2 After the agency denied her
17
18
19
20
21
22
2 AR 266-273, 314.
23
1 application initially and on reconsideration3, Plaintiff requested a
2 hearing before an ALJ.4
3
On January 11, 2024, ALJ David Skidmore (the ALJ) held a
4
hearing, at which Plaintiff and a vocational expert testified.5 After the
5
hearing, the ALJ issued a decision denying benefits.6 The ALJ found
6
Plaintiff’s alleged symptoms were not entirely consistent with the
7
8 medical evidence and the other evidence.7 As to medical opinions, the
9 ALJ found:
10
• The opinions of state agency evaluators Neil Shibuya, MD,
11
and Proyanka Gerrish, MD, to be not persuasive.
12
• The opinions of state agency evaluators Marisa Hendron,
13
PhD, and Jack Araza, PhD, to be persuasive.
14
15
16
3 AR185, 198.
17
4 AR 206.
18
5 AR 96-131.
19
20 6 AR 14-42. Per 20 C.F.R. § 416.920(a)–(g), a five-step evaluation
21 determines whether a claimant is disabled.
22
7 AR 24-31.
23
1 • The opinions of examining source William Brobst, MFT-I, to
2 be unpersuasive.8
3
The ALJ also considered the third-party witness statement of Phyllis
4
B. and found it to be vague and not persuasive.9
5
As to the sequential disability analysis, the ALJ found:
6
• Step one: Plaintiff had not engaged in substantial gainful
7
8 activity since April 29, 2021, her application date.
9 • Step two: Plaintiff had the following medically determinable
10
severe impairments: lumbar, thoracic, and cervical
11
degenerative joint disease; POTS (postural orthostatic
12
tachycardia syndrome); MCAS (mast cell activation
13
syndrome); and depressive disorder.
14
15 • Step three: Plaintiff did not have an impairment or
16 combination of impairments that met or medically equaled
17
the severity of one of the listed impairments and specifically
18
19
20
21 8 AR 32-34.
22
9 AR 34-35.
23
1 considered Listings 1.15, 4.00, 3.00, 5.00, 8.00, 11.00, 12.04,
2 12.07, and 14.00.
3
• RFC: Plaintiff had the RFC to perform work at the light
4
exertional level with the following exceptions:
5
[Plaintiff can] can never climb ladders/ropes/scaffolds;
6
occasionally climb ramps/stairs, stoop, kneel, crouch,
and crawl; no work at unprotected heights or near
7
dangerous moving machinery; no work around open
8 unguarded bodies of water; no concentrated exposure to
environmental irritants such as temperature extremes,
9 fumes, odors, dusts, gases, or poorly ventilated areas;
[Plaintiff] can focus and concentrate on routine work
10
involving occasional decision-making and occasional
11 changes in the work setting; [Plaintiff] can maintain
persistence and pace for 90% of an average workday; no
12 tandem tasks or more than occasional interaction with
co-workers; and no more than brief and superficial
13
interaction with the public.
14
• Step four: Plaintiff was unable to perform her past relevant
15
work.
16
• Step five: Plaintiff was able to perform jobs available in the
17
18 national economy in substantial numbers as an office helper
19
20
21
22
23
1 (DOT# 239.567-010); marker (DOT# 209.587-034); and
2 routing clerk (DOT# 222.687-022). .10
3
Plaintiff timely requested review of the ALJ’s decision by the
4
Appeals Council and now this Court.11
5
II. Standard of Review
6
The ALJ’s decision is reversed “only if it is not supported by
7
8 substantial evidence or is based on legal error,”12 and such error
9 impacted the nondisability determination.13 Substantial evidence is
10
“more than a mere scintilla but less than a preponderance; it is such
11
12
13
14 10 AR 20-37.
15
11 AR 257, ECF No. 1.
16
12 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). See 42 U.S.C. §
17
405(g).
18
13 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) ), superseded
19
20 on other grounds by 20 C.F.R. § 416.920(a) (recognizing that the court
21 may not reverse an ALJ decision due to a harmless error—one that “is
22
inconsequential to the ultimate nondisability determination”).
23
1 relevant evidence as a reasonable mind might accept as adequate to
2 support a conclusion.”14
3
III. Analysis
4
Plaintiff seeks relief from the denial of disability on three
5
grounds. She argues the ALJ erred when evaluating Plaintiff’s
6
subjective complaints, erred in evaluating the third-party witness
7
8 statement, and erred when evaluating the opinion of MFT-I Brobst.
9 The Commissioner argues there was no error because the ALJ
10
reasonably assessed Mr. Brobst’s opinions, adequately explained that
11
the witness statement was vague and lacked persuasive value, and
12
13
14 14 Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978,
15
980 (9th Cir. 1997)). See also Lingenfelter v. Astrue, 504 F.3d 1028,
16
1035 (9th Cir. 2007) (The court “must consider the entire record as a
17
whole, weighing both the evidence that supports and the evidence that
18
detracts from the Commissioner's conclusion,” not simply the evidence
19
20 cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d
21 383, 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does
22
not indicate that such evidence was not considered[.]”).
23
1 reasonably discounted Plaintiff’s allegations of disabling impairments
2 during the relevant period. As is explained below, the Court agrees
3
with the Commissioner and affirms the ALJ’s nondisability finding.
4
A. Medical Opinions: Plaintiff fails to establish consequential
5
error.
6
Plaintiff argues the ALJ erred by finding that the opinion of
7
8 examining mental health counselor in-training, William Brobst, MFT-I,
9 was not persuasive because it was not supported by his own exams and
10
inconsistent with the record.15 Plaintiff argues that the ALJ was vague
11
in his implied finding that the opinions were based on a single
12
examination, erred in finding that Mr. Brobst’s opinions were
13
inconsistent with the benign findings, that the ALJ erred in finding
14
15 that Mr. Brobst’s failing to answer whether Plaintiff had a severe
16 impairment was an indication he did not, and that the ALJ erred in
17
finding that Mr. Brobst’s opinions were inconsistent with Plaintiff’s
18
lack of mental health treatment and daily activities.
19
20
21
22
15 ECF No. 13.
23
1 The Court addresses each of these arguments. As is explained
2 below, the ALJ reasonably found that Mr. Brobst’s opinions were not
3
sufficiently explained or supported by the record.
4
1. Standard
5
An ALJ must consider and articulate how persuasive he found
6
7 each medical opinion, including whether the medical opinion was
8 consistent with and supported by the record.16 The factors for
9
evaluating the persuasiveness of medical opinions include, but are not
10
limited to, supportability, consistency, relationship with the claimant,
11
and specialization.17 Supportability and consistency are the most
12
important factors.18 When considering the ALJ’s findings, the Court is
13
14 constrained to the reasons and supporting explanation offered by the
15 ALJ.19
16
17
16 20 C.F.R. § 416.920c(a)–(c); Woods v. Kijakazi, 32 F.4th 785, 792 (9th
18
Cir. 2022).
19
20 17 20 C.F.R. § 416.920c(c)(1)–(5).
21 18 Id. § 416.920c(b)(2).
22
19 See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014).
23
1 At step-two a medically determinable impairment can only be found
2 to exist on the basis of objective evidence from an acceptable medical
3
source.20 The regulations further establish:
4
Acceptable medical source means a medical source who is a:
5
(1) Licensed physician (medical or osteopathic doctor);
6
(2) Licensed psychologist, which includes:
7 (i) A licensed or certified psychologist at the
independent practice level; or
8 (ii) A licensed or certified school psychologist, or other
licensed or certified individual with another title who
9 performs the same function as a school psychologist in
a school setting, for impairments of intellectual
10
disability, learning disabilities, and borderline
11 intellectual functioning only;
(3) Licensed optometrist for impairments of visual
12 disorders, or measurement of visual acuity and visual fields
only, depending on the scope of practice in the State in
13
which the optometrist practices;
14 (4) Licensed podiatrist for impairments of the foot, or foot
and ankle only, depending on whether the State in which
15 the podiatrist practices permits the practice of podiatry on
the foot only, or the foot and ankle;
16 (5) Qualified speech-language pathologist for speech or
language impairments only. For this
17
source, qualified means that the speech-language
18 pathologist must be licensed by the State professional
licensing agency, or be fully certified by the State education
19 agency in the State in which he or she practices, or hold a
Certificate of Clinical Competence in Speech-Language
20
21
22
20 20 C.F.R. § 416.921.
23
1 Pathology from the American Speech-Language-Hearing
Association;
2 (6) Licensed audiologist for impairments of hearing loss,
auditory processing disorders, and balance disorders within
3
the licensed scope of practice only (with respect to claims
4 filed (see § 416.325) on or after March 27, 2017);
(7) Licensed Advanced Practice Registered Nurse, or other
5 licensed advanced practice nurse with another title, for
impairments within his or her licensed scope of practice
6
(only with respect to claims filed (see § 416.325) on or after
March 27, 2017); or
7
(8) Licensed Physician Assistant for impairments within his
8 or her licensed scope of practice (only with respect to claims
filed (see § 416.325) on or after March 27, 2017).21
9
10
2. MFT-I Brobst’s examination and opinion
11
On May 10, 2021, Plaintiff presented to William Adam Brobst,
12
MFT-I, for a mental health assessment on Plaintiff’s own self-
13
14 referral.22 Plaintiff reported that she was not a harm to herself or
15 others and never had been.23 She reported no stressful events occurring
16
in the last 12 months but said that when she was 8 years old her step-
17
18
19
20 21 20 C.F.R. § 416.902(a).
21 22 AR 670-681, 670.
22
23 AR 670.
23
1 father was threatening her family with a gun.24 Plaintiff said she used
2 to be aggressive but no longer is; she endorsed life-long panic attacks
3
and anxiety; endorsed life-long depression with poor concentration,
4
pressured speech, and unresolved grief; and reported head trauma due
5
to being hit by cattle in 2016.25 Plaintiff reported somatic complaints of
6
headaches, stomach pain, and seizures; and reported a life-long history
7
8 of physical abuse.26 She also reported that her mother drank during
9 her pregnancy.27
10
Plaintiff reported that she did not have asthma, diabetes,
11
seizures, or heart problems but did have allergies; that she had never
12
been hospitalized and that she saw a doctor regularly.28 Plaintiff
13
denied that she had ever used illegal substances but said she had been
14
15
16
17
24 AR 671.
18
25 Id.
19
20 26 AR 672.
21 27 Id.
22
28 AR 673.
23
1 on probation for substance use and had been clean for 10 months.29
2 Plaintiff reported a current mental health history of anxiety, PTSD,
3
and depression.30
4
On examination, Plaintiff had appropriate appearance,
5
appropriate behavior, no impairment in mood, no impairment in
6
perception, no impairment in intelligence, she was fully oriented, her
7
8 judgment was intact, her memory was not impaired, and her thinking
9 was not impaired.31 Mr. Brobst diagnosed generalized anxiety disorder
10
and major depressive disorder.32
11
On July 8, 2021, Mr. Brobst completed a medical mental source
12
statement.33 He opined that Plaintiff was mildly limited in the
13
following: the ability to understand and remember very short, simple
14
15 instructions; and the ability to maintain socially appropriate behavior
16
17
29 AR 674.
18
30 AR 675-676.
19
20 31 AR 677-678.
21 32 AR 678.
22
33 AR 835-837.
23
1 and adhere to standards of neatness and cleanliness.34 He opined that
2 Plaintiff would have a moderate limitation in the following: the ability
3
to remember locations and work-like procedures, the ability to carry
4
out short and simple instructions, the ability to make simple work-
5
related decisions, the ability to interact with the public, the ability to
6
accept criticism from supervisors, the ability to get along with co-
7
8 workers and peers, the ability to respond appropriately to changes in
9 the work setting, and the ability to set realistic goals.35 Mr. Brobst
10
opined that Plaintiff would have a marked limitation in the following:
11
the ability to understand and remember detailed instructions, and the
12
ability to be aware of hazards and take precautions.36 He opined that
13
Plaintiff would have an extreme limitation in the following abilities:
14
15 carry out detailed instructions, maintain attention and concentration
16 for extended periods, adhere to a regular schedule and be punctual,
17
sustain an ordinary routine without special supervision, work in
18
19
20 34 AR 835-836.
21 35 AR 835-837.
22
36 Id.
23
1 proximity to others without being distracted, complete a normal
2 workweek without special supervision, and travel in unfamiliar
3
places.37
4
On March 28, 2023, Mr. Brobst conducted a second mental health
5
assessment.38 Plaintiff reported that her strengths were that she is
6
good at talking to people and listening.39 Plaintiff reported that she
7
8 was not a harm to herself or others and never had been.40 She reported
9 no stressful events occurring in the last 12 months other than financial
10
issues.41 Plaintiff otherwise made the same reports that she made at
11
the first examination regarding life-long panic attacks and anxiety;
12
life-long depression with poor concentration, lack of motivation, low
13
energy, and unresolved grief; and head trauma in 2016.42 Plaintiff
14
15
16
37 Id.
17
38 AR 1111-1120.
18
39 AR 1111.
19
20 40 Id.
21 41 AR 671.
22
42 AR 1111-1113.
23
1 reported somatic complaints of headaches, stomach pain and seizures;
2 and reported a life-long history of physical abuse.43 She also reported
3
that her mother drank during her pregnancy.44
4
On examination, Plaintiff had appropriate appearance,
5
appropriate behavior, no impairment in mood, no impairment in
6
perception, no impairment in intelligence, she was fully oriented, her
7
8 judgment was intact, her memory was not impaired, and her thinking
9 was not impaired.45 Mr. Brobst diagnosed post-traumatic stress
10
disorder and major depressive disorder.46
11
3. The ALJ’s findings
12
When evaluating Mr. Brobst’s opinion, the ALJ gave several
13
14 reasons for concluding that it was not persuasive.47 First, the ALJ
15
16
17
43 AR 1113.
18
44 Id.
19
20 45 AR 1118-1119.
21 46 678.
22
47 AR 33-34.
23
1 found that Mr. Brobst’s opinion was inconsistent with his own
2 examination findings.48 The ALJ stated:
3
This opinion is unpersuasive as it is neither supported by or
4 consistent with the evidence of record. First, this
questionnaire appears to have been completed based on one
5 single mental health assessment of the claimant a couple
months before and there are no other corresponding
6
treatment notes indicating any care or follow up in the
interim. Allegedly, the claimant saw this MFT intern once
7
again about two years later, but as already described above,
8 the report is almost a carbon copy of the 2021 report
meaning that there were the same exact complaints,
9 findings, and goals documented but the therapist concluded
that she did not have anxiety but now had PTSD yet the
10
report lacked any details on the clinically significant effects
11 on functioning or description of the symptoms or signs the
claimant specifically suffered related to traumatic or
12 stressful event(s). Moreover, the various limitations opined
by the therapist, who is not an acceptable medical source, in
13
understanding and memory, sustained concentration and
persistence, social interaction, and adaptation not only lack
14
any support from treatment notes of Mr. Brobst because
15 there are none in the current file, but they are also
unbelievably inconsistent with the findings on the mental
16 status examination performed and reported by Mr. Brobst
as follows: appropriate appearance, appropriate behavior,
17
intact judgment, no mood impairment, no perception
18 impairment, no intelligence functioning impairment, no
orientation impairment, and no thinking impairment.
19 Therefore, the mental status examination reflected no
actual psychiatric signs, medically demonstrable
20
phenomena, or observable facts that can be medically
21
22
48 AR 33.
23
1 described and evaluated to indicate any specific
psychological abnormality. As such, this opinion lacks
2 support and is also inconsistent with the rest of the
longitudinal record as described above.49
3
4 He then articulated that Mr. Brobst’s opinion was inconsistent
5 with the other treatment records and additionally, the ALJ reasoned
6
that Mr. Brobst’s opinions were not consistent with Plaintiff’s
7
activities and articulated:
8
Without any support from the actual treatment encounter
9 and examination, the purported limitations appear
significantly exaggerated beyond what the record supports
10
especially in light of the fact that the claimant has not had
11 any specialized mental health treatment of note since the
application date, which further renders the opinion of the
12 MFT unpersuasive. For example, as noted above, the
therapist checked numerous boxes of severe and marked
13
limitations suggesting very significant mental deficits in
functioning in the questionnaire but his conclusions in the
14
mental health assessments indicate that the claimant did
15 not qualify as “severely mentally ill”. The lack of any mental
health treatment since the application date overall (no
16 evidence of psychotropic medication, individual
counseling/group therapy, and no emergency care or
17
inpatient hospitalization) further belies the opinion of the
18 therapist intern. If the claimant were truly as limited as the
therapist suggests and was unable to concentrate for
19 extended periods, sustain an ordinary routine without
special supervision, travel in unfamiliar places, or be aware
20
of normal hazards and take appropriate precautions, the
21
22
49 AR 33.
23
1 longitudinal record would be replete with notes of confusion,
altered mental status, inability to follow along during
2 treatment visits, indication that she did not provide
relevant answers or was unable to respond appropriately to
3
questions, was unable to describe her past medical history,
4 or that she needed to be accompanied to appointments and
required assistance in responding to questions asked, but no
5 such findings are documented in the file. In stark contrast,
rather, the longitudinal evidence shows that the claimant
6
has quite a routine for herself where she camps in a tent in
the summer in the northwest United States and then moves
7
south to Nevada for the winter and will live in a camper.
8 She gardens and grows her own organic vegetables and
catches her own fish, she maintains a gluten free diet,
9 works with and cares for horses, works/volunteers at state
parks, travels to Colorado and Utah from her normal
10
locations in Nevada and Washington, camps near mines and
11 hot springs, was exceptionally involved in her medical care,
had a Master’s degree in nonprofit administration and
12 leadership as well as Bachelor’s degree in psychology,
previously worked as an Executive Director of an Equine
13
Rescue, and also worked in homeless ministry, farming, and
as a farrier (a specialist in equine hoof care).50
14
15 4. Analysis
16
The Court notes that Plaintiff does not address in her argument
17
that the ALJ considered that Mr. Brobst is not an acceptable medical
18
source and that at the time that he conducted both examinations of
19
20
21
22
50 AR 33-34.
23
1 Plaintiff he was a Marriage and Family Therapy Intern. The ALJ
2 stated:
3
The longitudinal record documents only two contacts with a
4 mental health provider, William Adam Brobst, a marriage
and family therapist intern (meaning he was still in
5 training), who is not an acceptable medical source.51
6
Both of the statements made by the ALJ were factually correct.
7
Mr. Brobst is not an acceptable medical source pursuant to the
8
definition of an acceptable medical source provided in the regulations.52
9
Additionally, Mr. Brobst clearly identified himself as a Marriage and
10
11 Family Therapy “Intern” both when he examined Plaintiff in 2021 and
12 2023, and when he completed the medical source statement.53
13
The Court concludes that it was not error for the ALJ to have
14
considered both that Mr. Brobst was not an acceptable medical source
15
and that he was in training. The fact that Mr. Brobst is not acceptable
16
medical source supports the ALJ’s decision not to accept PTSD as a
17
18
19
20 51 AR 30.
21 52 20 C.F.R. § 416.902(a).
22
53 AR 670, 837, 1111.
23
1 determinable impairment because it was not a diagnosis supported by
2 any acceptable medical source and is therefore not established as a
3
medically determinable impairment. Additionally, the ALJ was
4
allowed to consider the fact that Mr. Brobst was still in training at the
5
time that he rendered his opinions, as the regulations specifically state
6
that the ALJ may consider a medical source’s training and expertise
7
8 when evaluating persuasiveness.54
9 Plaintiff argues that the ALJ erred in reasoning that the opinion
10
was unpersuasive in part because it appeared to have been based upon
11
a single assessment.55 The Commissioner counter-argues that the
12
ALJ’s consideration of that factor was appropriate under the
13
regulations.56 The Court agrees with the Commissioner that the ALJ’s
14
15 consideration of the limited relationship between Mr. Brobst was
16 proper, particularly in light of the fact that it was only one of the many
17
factors upon which the ALJ based his reasoning. The factors for
18
19
20 54 20 C.F.R. § 416.920c.
21 55 ECF No. 13.
22
56 ECF No. 15, citing 20 C.F.R. § 416.920c(3)(i)-(ii).
23
1 evaluating the persuasiveness of medical opinions include, but are not
2 limited to, supportability, consistency, relationship with the claimant,
3
and specialization.57 The ALJ may also consider whether the medical
4
source has familiarity with the other record evidence or an
5
understanding of the disability program’s policies and evidentiary
6
7
requirements.58 Additionally, as noted previously, the ALJ considered
8 that the single examination was made by a source who was not an
9 acceptable medical source and that the source in question was still in
10
training and therefore lacking in experience.
11
There is no question that the ALJ was obliged not only to
12
consider the supportability and consistency factors when assessing
13
Mr. Brobst’s opinions. Supportability and consistency are the most
14
15 important factors.59 The ALJ is to consider the supporting explanation
16
17
18
19
20 57 20 C.F.R. § 416.920c(c)(1)–(5).
21 58 Id.
22
59 Id. § 416.920c(b)(2).
23
1 provided by the medical source and the extent of the relevant objective
2 medical evidence supporting the opinion.60
3
Whether a medical opinion is consistent with the longitudinal
4
record—including Plaintiff’s reported symptoms—and is based on more
5
record review and supporting explanation are factors for the ALJ to
6
consider.61 Yet, an ALJ may reject a treating physician’s opinion if it is
7
8 based ‘to a large extent’ on a claimant’s self-reports that have been
9 properly discounted as incredible.”62 In addition, an ALJ may discount
10
11
60 20 C.F.R. §416.920c. See 20 C.F.R. § 416.920c(c)(1) (“The more
12
13 relevant the objective medical evidence and supporting explanations
14 presented by a medical source are to support his or her medical
15
opinion(s) or prior administrative medical finding(s), the more
16
persuasive the medical opinions or prior administrative medical
17
finding(s) will be.”). See also Bray v. Comm’r of Soc. Sec. Admin., 554
18
F.3d 1219, 1228 (9th Cir. 2009) (recognizing that a medical opinion
19
20 may be rejected if it is conclusory or inadequately supported).
21 61 20 C.F.R. §§ 404.1520c, 416.920c.
22
62 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
23
1 an opinion that is inadequately supported by medical findings and
2 observations.63 Moreover, “[a] physician’s opinion can be discredited
3
based on contradictions between the opinion and the physician's own
4
notes.”64
5
6
7 63 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.
8
2009) (recognizing that a medical opinion may be rejected if it is
9
conclusory or inadequately supported); Lingenfelter, 504 F.3d at 1042
10
(recognizing that a medical opinion is evaluated as to the amount of
11
relevant evidence that supports the opinion, the quality of the
12
13 explanation provided in the opinion, and the consistency of the medical
14 opinion with the record as a whole); Crane v. Shalala, 76 F.3d 251, 253
15
(9th Cir. 1996).
16
64 Buck, 869 F.3d at 1050; see also Baker v. Saul, 836 F. App'x 526, 528
17
(9th Cir. 2020) (unpublished) (noting that the psychologist had only
18
met with the claimant once and “[t]he ALJ compared [the
19
20 psychologist]’s conclusions to the doctor's own notes, which indicated
21 that Baker performed within the normal limits for six of the eight
22
“additional detail” categories on the mental status exam.”).
23
1 Contrary to Plaintiff’s argument, the ALJ adequately articulated
2 that the examination findings were wholly inconsistent with the
3
extreme limitations to which Mr. Brobst, who was both an intern/in-
4
training and not an acceptable medical source, opined. The ALJ’s
5
findings were not vague. The ALJ noted that on examination Plaintiff
6
exhibited appropriate appearance, appropriate behavior, no
7
8 impairment in mood, no impairment in perception, no impairment in
9 intelligence, she was fully oriented, her judgment was intact, her
10
memory was not impaired, and her thinking was not impaired.65 In
11
short, all objective evidence was within normal limits. While a lack of
12
objective evidence supporting mild or moderate limitations might be
13
explained, a complete lack of objective evidence supporting marked and
14
15 extreme limitations is questionable. The Court concludes that the ALJ
16 did not err in his consideration of the lack of supporting findings in
17
Mr. Brobst’s examination and the supportability factor.
18
The ALJ’s articulated reasoning that Mr. Brobst’s opined
19
limitations were exaggerated beyond what the record supported was a
20
21
22
65 AR 677-678.
23
1 proper finding regarding the consistency of the opinions to the
2 longitudinal record. It is notable that Plaintiff did not seek any actual
3
mental health treatment beyond her presenting to Mr. Brobst twice for
4
evaluations and presenting to an ER with a request that they diagnose
5
her with a severe mental illness “to help get benefits.”66 There is no
6
indication that Plaintiff ever followed up on Mr. Brobst’s
7
8 recommendation that she attend individual therapy. Because
9 Mr. Brobst was not a source capable of prescribing medication and
10
Plaintiff disregarded his recommendation to attend counseling, the
11
ALJ did not err in inferring that the purpose of the evaluation was to
12
assist in Plaintiff’s claim for benefits rather than to seek actual
13
treatment.
14
15 While Plaintiff presented for care on numerous occasions at both
16 medical clinics and ER’s for treatment for her physical impairments,
17
the only other time that she presented for mental health issues was the
18
ER visit in which she stated she wanted a diagnosis to aid in her
19
disability claim. During this ER visit, Christopher Sessions, PA,
20
21
22
66 AR 813.
23
1 declined to diagnosis a mental illness and opined that Plaintiff was not
2 a danger to herself or others and, presumably, therefore not in need of
3
emergency care.67
4
The Court additionally concludes that the ALJ’s reasoning that
5
Mr. Brobst’s opinions are inconsistent with Plaintiff’s daily activities is
6
substantially supported by the record. For example, the ALJ noted
7
8 that Plaintiff works/volunteers at state parks, and travels to Colorado
9 and Utah from her normal locations of Nevada and Washington.68
10
There is an inconsistency in the fact that Plaintiff routinely travels
11
between four states over a span of thousands of miles and the fact that
12
Mr. Brobst opined that Plaintiff is “severely limited” in the ability to
13
travel in unfamiliar places and use public transportation.69 Similarly,
14
15 the ALJ noted that Plaintiff has been involved in her medical care,
16 obtained a Master’s degree in non-profit administration and a
17
Bachelor’s degree in psychology, and worked as the executive director
18
19
20 67 Id.
21 68 AR 34.
22
69 AR 837.
23
1 of a non-profit.70 Those activities are inconsistent with Mr. Brobst’s
2 opined “severe limitation” in: carrying out detailed instructions,
3
maintaining attention and concentration, and sustaining an ordinary
4
routine without special supervision.
5
5. Summary
6
7 It is the ALJ’s responsibility to review and evaluate the
8 conflicting evidence and medical opinions.71 The ALJ meaningfully
9
explained why he evaluated Mr. Brobst’s medical opinions as he did,
10
and these reasons are supported by substantial evidence.
11
B. Symptom Reports: Plaintiff fails to establish
12
consequential error
13
14 Plaintiff argues the ALJ failed to properly assess her subjective
15 complaints regarding her postural orthostatic tachycardia syndrome
16
(POTS), mast cell activation syndrome (MCAS), and mental health
17
issues.
18
19
20
21 70 AR 34.
22
71 Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999).
23
1 1. Standard
2 When examining a claimant’s symptoms, the ALJ utilizes a two-
3
step inquiry. “First, the ALJ must determine whether there is objective
4
medical evidence of an underlying impairment which could reasonably
5
be expected to produce the pain or other symptoms alleged.”72 Second,
6
“[i]f the claimant meets the first test and there is no evidence of
7
8 malingering, the ALJ can only reject the claimant’s testimony about
9 the severity of the symptoms if [the ALJ] gives ‘specific, clear and
10
convincing reasons’ for the rejection.”73 General findings are
11
insufficient; rather, the ALJ must identify what symptom claims are
12
being discounted and what evidence undermines these claims.74 “The
13
14
15
72 Molina, 674 F.3d at 1112.
16
73 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting
17
Lingenfelter, 504 F.3d at 1036).
18
74 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), and
19
20 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the
21 ALJ to sufficiently explain why he discounted claimant’s symptom
22
claims)).
23
1 clear and convincing standard is the most demanding required in
2 Social Security cases.”75 Therefore, if an ALJ does not articulate
3
specific, clear, and convincing reasons to reject a claimant’s symptoms,
4
the corresponding limitations must be included in the RFC.76
5
2. Relevant Testimony
6
7 a. Plaintiff’s Testimony
8 On January 11, 2024, Plaintiff appeared with her attorney via
9
telephone for a hearing before the ALJ.77 Plaintiff said that the
10
greatest obstacle to her working was her frequent absences.78 She was
11
let go from her last two jobs after less than 30 days due to frequent
12
13
14 75 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore
15
v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
16
76 Lingenfelter, 504 F.3d at 1035 (“[T]he ALJ failed to provide clear and
17
convincing reasons for finding Lingenfelter’s alleged pain
18
and symptoms not credible, and therefore was required to include these
19
20 limitations in his assessment of Lingenfelter’s RFC.”).
21 77 AR 96-131.
22
78 AR 102-103.
23
1 absence.79 At least eight times the employer sent her home because she
2 was sick and once an employer took her to the ER because of an
3
allergic reaction.80 She was given a 14-day trial of employment but
4
missed 3 days due to symptoms caused by the barometric pressure
5
changing.81 Plaintiff said both times she was working outdoors.82 She
6
said the medication she takes for back pain also knocks her out.83
7
8 When working she has constant anxiety that she will miss work and be
9 fired.84
10
She said that her back hurts from walking and standing and that
11
physical therapy would help but she was homeless.85 She cannot stand
12
13
14
15
79 Id.
16
80 AR 103.
17
81 Id.
18
82 AR 104.
19
20 83 AR 105.
21 84 AR 106.
22
85 Id.
23
1 in one spot or sit for more than 45 minutes and will fall if standing.86
2 She will need to shift her position between standing, walking, sitting,
3
and laying down.87 There are days she stays in bed but most days she
4
will lie down after about an hour and half.88
5
Plaintiff said that if she stands too quickly her blood pressure
6
drops, her heart races, and she will fall.89 She will not faint, but she
7
8 will get dizzy.90 Getting IV fluid helps and she has asked for the doctor
9 to give her IV fluid every other day, but he will not agree.91 She takes
10
walks daily and carries a yoga mat with her so she can sit or lay
11
12
13
14
15
16
86 Id.
17
87 AR 107.
18
88 AR 107.
19
20 89 AR 108.
21 90 Id.
22
91 Id.
23
1 down.92 She reads and writes, and works hard at volunteering so she
2 does not have time for hobbies anymore.93
3
Plaintiff said that she gets drowsy from Benadryl and that her
4
muscle relaxer makes her “stupid.”94 She has asked for cortisone shots,
5
but her doctors won’t give them to her although she has asked.95 She
6
takes Benadryl once or twice a week.96 She has no problems sleeping
7
8 but she is always fatigued.97 Her concentration is good unless she has a
9 bad day and she has no problem getting along with others but can be
10
allergic to perfumes people wear, and she is able to do volunteer work
11
12
13
14
15
16
92 AR 109.
17
93 Id.
18
94 Id.
19
20 95 AR 109-110.
21 96 AR 110.
22
97 Id.
23
1 with the homeless because they do not wear perfumes.98 There is no
2 treatment for MCAS so she stays away from people wearing perfume.99
3
Plaintiff testified that half her days are good days and half are
4
bad days.100 She cannot properly schedule anything and has to avoid
5
others.101 She said that she used to drop weight due to digestive issues
6
but since 2021 her weight and digestion have been stable.102 She has a
7
8 master’s degree in nonprofit administration, and she volunteers in the
9 administrative offices of a nonprofit.103
10
Plaintiff said she cannot work as a teacher or substitute teacher
11
because there are too many odors and fumes.104 She said she was
12
currently homeless and that she had been living in a van for six years
13
14
15
98 AR 110-111.
16
99 AR 111.
17
100 AR 112.
18
101 Id.
19
20 102 AR 113.
21 103 AR 114.
22
104 AR 115.
23
1 because she was allergic to Lysol, Pine-Sol, and bleach used at
2 shelters.105
3
Plaintiff said she had been diagnosed with fibromyalgia and that
4
most of her allergies were the result of MCAS.106 She said that she had
5
severe allergies for her entire life, that the first allergy she remembers
6
was to black pepper, and that she did not realize other food allergies as
7
8 a child and only realized as an adult when chopping vegetables.107 She
9 said she was tested for asthma and that she does not have asthma but
10
that she has breathing issues due to allergies.108
11
Plaintiff said she has 9 Epi-Pens she carries in her camper, car,
12
and pocket but that Epi-Pens are not a cure and she has to go to the
13
ER after using one.109 She said she uses an Epi-Pen once a month
14
15
16
17
105 AR 115-116.
18
106 AR 116-117.
19
20 107 AR 117-118.
21 108 AR 118.
22
109 AR 119.
23
1 unless she is in the desert.110 She said she travels between Washington
2 and Nevada because she can no longer regulate her temperature and
3
has to move as the weather changes.111 She said that she was staying
4
at a camp site in her van.112 She has issues with bending, twisting,
5
cooking, and moving things but she follows her physical therapy
6
recommendations.113
7
8 Plaintiff said she stopped taking gabapentin and her anti-anxiety
9 drugs, and that she had become allergic to the medical marijuana that
10
she had been taking.114 She also said that light triggers headaches and
11
she has had problems with migraine medication such as Imitrex and
12
Topomax.115
13
14
15
16
110 AR 120.
17
111 AR 120-121.
18
112 AR 121-122.
19
20 113 AR 122.
21 114 AR 123.
22
115 AR 124.
23
1 Plaintiff said in a typical day she wakes and she will eat, then
2 walk for a mile, study the bible, do online work, make lunch, and read
3
a book.116 She will call Home on Wheels and see if they need any
4
volunteer work done and go in if they do.117 She said she would like to
5
do physical therapy more often but does not have money for gasoline.118
6
b. Relevant Witness Testimony
7
8 Phyllis B., the Assistant Director of Homes on Wheels Alliance,
9 wrote a letter in support of Plaintiff’s claim.119 She wrote that Plaintiff
10
was a good volunteer but had limitations due to chemical
11
sensitivities.120 She wrote that Plaintiff volunteered at an event and
12
that she had always kept an Epi-Pen and had to vacate the area when
13
others had fragrances and other products on their bodies.121 She wrote
14
15
16
116 AR 125.
17
117 Id.
18
118 AR 126
19
20 119 AR 368.
21 120 Id.
22
121 Id.
23
1 that weather conditions made Plaintiff foggy and affect her motor
2 skills.122 She said that once Plaintiff had to lay on the floor to stabilize
3
her pulse and blood flow to her head.123 Ms. Bickford wrote that
4
Plaintiff had a strong work ethic and was trustworthy but that she
5
could not be hired because her health issues made her unreliable.124
6
7 3. The ALJ’s Findings
8 The ALJ found Plaintiff’s statements concerning the intensity,
9
persistence, and limiting effects of the symptoms of her medically
10
determinable impairments not entirely consistent with the medical
11
evidence and other evidence in the record.125
12
With regard to mental illness, the ALJ articulated the following
13
14 reasoning:
15 Outside of the almost duplicative reports from the MFT
intern, the rest of the treatment records document grossly
16
normal mental status findings and observations (see
generally Exhibits B1F, B2F, B3F, B4F, B6F, B7F, B9F,
17
18
122 Id.
19
20 123 Id.
21 124 Id.
22
125 AR 24-31.
23
1 B11F, B12F, B13F, B15F, B16F, B17F, B18F, B19F). On
December 21, 2021, when the claimant established with a
2 new physician’s assistant in Nevada, she reported that had
a history of PTSD, was not currently medicated for it, and
3
did not want to discuss PTSD at the visit. The mental
4 findings on that date indicate that she was fully oriented,
had appropriate mood/affect, normal insight/judgment, and
5 had pressured speech. Subsequent treatment visits
conducted via telehealth continued to indicate the generally
6
normal findings and she had clear speech and did not have
pressured speech again (Exhibit B9F). It does not appear
7
that PTSD, anxiety, or depression were discussed at any
8 other subsequent visit or that the claimant sought
treatment for her PTSD symptoms. Furthermore, the
9 claimant’s Patient Health Questionnaire subjective
assessment, the PHQ-2, was consistently negative (see
10
Exhibits B9F/10, 12, 21, 23; B18F/2, 5-6). She also
11 consistently denied suicidal ideations (Exhibits B1F, B4F,
B11F, B18F, B19F).126
12
13
The ALJ went on to further articulate:
14
Accordingly, given the absence of any specific or specialized
15 treatment for the claimant’s allegedly disabling mental
impairments for which she sought but never received a
16 diagnosis of severe mental illness, the longitudinal record
simply fails to document abnormalities, findings, signs, or
17
complaints to corroborate the claimant’s allegations. She
18 has essentially received no treatment for any mental
impairment since the application date and there is no
19 evidence that this caused the claimant to decompensate,
require emergency treatment and interventions, or required
20
an inpatient hospitalization since the application date.
21
22
126 AR 31.
23
1 Overall, the longitudinal record is inconsistent with a level
of severity that would preclude the claimant from
2 sustaining any work activity. However, in giving the
claimant the benefit of every due consideration, and
3
accounting for the effects of her other severe impairments, I
4 have reduced the mental functioning in the above residual
functional capacity to routine work involving only occasional
5 decision making and occasional changes in the work setting;
can maintain persistence or pace for 90% of an average
6
workday; no tandem tasks or more than occasional
interaction with co-workers; and no more than brief and
7
superficial interaction with the public.127
8
9 The Court references its finding above in its analysis of
10
Mr. Brobst’s opinions. As noted by the Court, the longitudinal record
11
reflects no support of Plaintiff’s allegations beyond the internally
12
inconsistent opinions of Mr. Brobst, who was both an intern and not an
13
acceptable medical source. Notably, on examination Mr. Brobst found
14
15 all Plaintiff’s mental status tests to be entirely within normal limits.128
16 The only time that Plaintiff sought mental health treatment was
17
the two visits made to Mr. Brobst for the purpose of receiving an
18
assessment, and the ER visit in which she asked to be diagnosed solely
19
20
21 127 Id.
22
128 AR 677-678.
23
1 to assist her in obtaining disability benefits. Plaintiff’s arguments that
2 her failure to seek medical treatment was a result of a lack of resources
3
or a lack of insight is unavailing. Plaintiff found the resources to
4
attend those three appointments. She ignored the recommendations
5
made by Mr. Brobst and sought no further treatment beyond that
6
which would help her disability claim. Similarly, when Plaintiff
7
8 presented to the ER for a mental health assessment she did not ask for
9 medication or treatment of any kind, but rather solely for a document
10
to support her disability claim. The Court concludes that the ALJ’s
11
consideration of those facts and his reasoning that the longitudinal
12
record does not support Plaintiff’s allegations of mental illness is
13
reasonable and supported by substantial evidence.
14
15 With regard to Plaintiff’s physical illnesses of POTS, MCAS, and
16 degenerative disease of the spine, she argues that the ALJ erred in his
17
finding that Plaintiff’s subjective complaints were not consistent with
18
the longitudinal record.129 The Commissioner argues that the ALJ
19
properly considered that the Plaintiff appeared to exaggerate her
20
21
22
129 ECF No. 13.
23
1 symptoms and made a number of inconsistent statements, that
2 Plaintiff’s symptoms of POTS and MCAS were well-managed when she
3
was compliant with medication, that Plaintiff made a number of
4
incorrect reports to her medical sources, and that Plaintiff’s allegations
5
were not consistent with her daily activities.130 The Court agrees with
6
the Commissioner.
7
8 The ALJ articulated:
9 After careful consideration of the evidence and testimony, it
is unclear why the claimant alleges she would miss so much
10
work and that her impairments are not well-controlled. As
11 described herein, the allegations and testimony of the
claimant are highly disproportionate to the objective
12 medical signs and findings as well as her treatment history
and her reported daily activities and living conditions.131
13
The ALJ went on to note that Plaintiff had alleged a number of
14
15 conditions from which she did not suffer, such as fibromyalgia, asthma,
16 Crohn’s disease, and rheumatoid arthritis.132 As the ALJ noted,
17
18
19
20 130 ECF No. 15.
21 131 AR 25.
22
132 Id.
23
1 Plaintiff admitted in her testimony that she did not have asthma.133
2 She also admitted in her testimony that she had not been diagnosed
3
with rheumatoid arthritis, connective tissue disorder, or any
4
autoimmune disorder.134
5
The ALJ considered that in addition to allegations of symptoms
6
and conditions that were not properly diagnosed and supported by
7
8 objective evidence, Plaintiff reported similar incorrect medical history
9 to her medical sources. For instance, on December 21, 2021, Plaintiff
10
presented to Brittney Blazich, PA-C, of Amargosa Valley Medical Clinic
11
and reported to her that she had “3 crushed vertebrae in her back.”135
12
PA-C Blazich noted that further investigation indicated that numerous
13
advanced imaging scan such as MRI and CT-Scan revealed no fracture
14
15 and only mild to moderate degenerative changes.136 In the same office
16 visit, Plaintiff reported a history of rheumatoid arthritis and Raynaud’s
17
18
133 AR 25, citing to AR 118.
19
20 134 AR 116.
21 135 AR 846.
22
136 Id.
23
1 as well as PTSD, although she admitted at the hearing that she did not
2 have rheumatoid arthritis or Raynaud’s and there is no evidence of any
3
diagnosis of PTSD, as noted above.
4
The Court notes that when Plaintiff presented to PA Sessions of
5
the Mt. Grant Hospital ER on November 4, 2020, requesting a mental
6
health diagnosis, she reported similarly that she had a history of
7
8 PTSD, although the record supports no such diagnosis.137
9 An ALJ may discount a claimant’s symptom reports if they are
10
inconsistent with her prior statements as that indicates a lack of
11
candor.138 The tendency to exaggerate or engage in manipulative
12
conduct during the process is a permissible reason to discount the
13
14
15
16
137 AR 813.
17
138 20 C.F.R. § 416.929(c)(4). See Smolen v. Chater, 80 F.3d 1273, 1284
18
(9th Cir. 1996) (The ALJ may consider “ordinary techniques of
19
20 credibility evaluation,” such as reputation for lying, prior inconsistent
21 statements concerning symptoms, and other testimony that “appears
22
less than candid.”).
23
1 claimant’s reported symptoms.139 Here, the ALJ has pointed to not
2 only inconsistent statements by Plaintiff but to conduct that appears
3
manipulative in nature.
4
In addition to his consideration of Plaintiff’s inconsistent claims
5
and attempts to obtain documentation of disability by supplying
6
medical sources with false information or diagnoses, the ALJ noted
7
8 that when she was compliant with medication Plaintiff suffered few if
9 any exacerbations of her POTS or MCAS.140
10
A claimant’s course of treatment, including whether symptoms
11
improved with treatment, is a relevant factor for the ALJ to consider
12
when assessing the claimant’s symptom reports.141 While Plaintiff
13
alleges that her MCAS was not controlled with treatment, the ALJ
14
15 noted that this is inconsistent with the record. In December 2021,
16
17
139 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).
18
140 AR 25-28.
19
20 141 20 C.F.R. § 404.1529(c)(3). See Morgan v. Comm’r of Social Sec.
21 Admin., 169 F.3d 595, 599–600 (9th Cir. 1999) (considering evidence of
22
improvement).
23
1 Plaintiff reported to PA-C Blazich that she had an allergic reaction in
2 May 2021 but did not use her Epi-Pen.142 Plaintiff advised PA-C
3
Blazich that she had never had to actually use her Epi-Pen and that
4
they were “just for in case.”143 Plaintiff had clearly not used but rather
5
retained and collected her prescribed Epi-Pens, as she reported having
6
9 of them on hand at the time of her hearing.
7
8 The ALJ considered that when Plaintiff had a bug bite in
9 September 2022 she was treated with Benadryl alone and did not use
10
an Epi-Pen.144 He also considered that when Plaintiff had an
11
exacerbation in April 2023 it was because she did not take her
12
prophylactic drug, hydroxyzine, and that she responded well to
13
Benadryl and improved without needing an Epi-Pen.145
14
15 The ALJ’s reasoning describes specific instances in which he
16 found Plaintiff’s subjective allegations to be at odds with the record.
17
18
142 AR 846.
19
20 143 Id.
21 144 AR 26-27, citing AR 1122-1126.
22
145 AR 26, citing AR 1127-1129.
23
1 The ALJ considered that Plaintiff’s activities and abilities were
2 inconsistent with her symptom reports.146 If a claimant can spend a
3
substantial part of the day engaged in pursuits involving the
4
performance of work-related functions, the ALJ may find these
5
activities inconsistent with the reported disabling symptoms.147 Here,
6
the ALJ highlighted that Plaintiff’s activities were quite numerous and
7
8 in large part inconsistent with her claims of disabling limitations.148
9 In light of the totality of evidence, the Court finds that
10
substantial evidence in the record supports the ALJ’s findings. While
11
the medical record might be interpreted in a different manner, it is not
12
the duty of the Court to reweigh the evidence, but instead to determine
13
whether substantial evidence supports the ALJ’s decision. The Court
14
15 concludes that the ALJ has adequately explained his reasoning. The
16 Court declines to remand as to this issue.
17
18
146 AR 26-27.
19
20 147 Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (superseded in
21 part on other grounds by statute).
22
148 AR 25-26.
23
1 C. Third-party witness statements: Plaintiff fails to establish
2 consequential error.
3
Plaintiff argues that the ALJ erred in his consideration of the
4
third-party witness statement. The Court disagrees.
5
The regulations provide that [a]n ALJ is “not required to
6
articulate how [he] considered evidence from nonmedical sources using
7
8 the [medical-opinion] requirements . . . .”149 But while the ALJ need not
9 utilize the medical-opinion articulation requirements when considering
10
evidence from nonmedical sources, the regulations do not state that the
11
ALJ is not required to consider lay statements. Instead, the regulations
12
specify that—except for some specifically excluded items not
13
encompassing lay statements about the nature, frequency, or intensity
14
15 of a claimant’s symptoms— the ALJ “will consider all evidence in [the]
16
17
149 20 C.F.R. § 416.920c(b)(2) (“[W]e will explain how we considered the
18
supportability and consistency factors for a medical source’s medical
19
20 opinions or prior administrative medical findings in your
21 determination or decision.”). See also 20 C.F.R. §§ 416.920(a)(3),
22
416.913(a)(4).
23
1 case record when [making] a determination or decision” as to
2 disability.150
3
4 The ALJ “must give reasons that are germane to each witness”
5 and supported by substantial evidence with reasoning clear enough to
6
permit meaningful review.151
7
The ALJ addressed the third-party statement in some detail
8
reasoning as follows:
9
On January 26, 2023, the assistant director of Homes on
10
Wheels Alliance, an organization that the claimant has
11 volunteered for, provided a statement that the claimant was
a good volunteer but had severe limitations in environment
12 and chemical sensitivities as well as common products like
personal hygiene and fragrances seriously triggered her and
13
would incapacitate her. This individual further noted
observing over several weeks that they worked together, the
14
claimant had to vacate areas multiple times to avoid severe
15 physical reactions when others were in proximity due to
foods and chemicals. She said the claimant always had her
16 EpiPen in her pocket, but as described above, the records do
not document that the claimant has actually had to use the
17
EpiPen despite the claimant’s sworn testimony. Lastly, she
18 described a situation where the claimant had to lay
completely flat on the floor to stabilize her pulse and blood
19 flow, which frightened staff that were present. She
20
21 150 20 C.F.R. § 416.920c(b)(2)).
22
151 AR 878-879.
23
1 concluded stating that the claimant has a “strong work ethic
and is trustworthy [but] the unreliability of her
2 performance because of her chemical sensitivities and other
health issues were a major factor in preventing us from”
3
hiring the claimant as a staff member (Exhibit B11E). I
4 have considered this statement from the assistant director,
a nonmedical source, among all of the other medical and
5 nonmedical evidence. The statement is vague as it fails to
indicate specifics and speaks in generalizations, such as
6
“multiple times” “in several weeks” and “food and chemicals,
products, and environment.” She stated that the claimant
7
always had her EpiPen on her, but she does not mention if
8 the claimant had ever used it or whether the claimant ever
actually experienced severe physical reactions to triggers.152
9
The ALJ went on to further articulate:
10
11 She did not describe how the claimant would be
“incapacitated” or “seriously triggered” and how often she
12 witnessed this happen to the claimant. This statement
overall does not offer new or otherwise undescribed insight
13
to the longitudinal record and for that reason as well as it
being vague and too general to support the assistant
14
director’s decision to ultimately not hire the claimant
15 because of “unreliability of her performance.” The statement
fails to indicate if the claimant was frequently absent from
16 her volunteer work trial, would be out of commission for
several hours when she showed up, that they attempted to
17
provide reasonable accommodations so that the claimant
18 would not be exposed to chemicals, products, fragrances, or
other triggers. It is understandable that people could be
19 frightened and concerned about the claimant’s well-bring,
but there is no indication that the claimant was provided
20
with a private location in which she could lie down if needed
21
22
152 AR 34.
23
1 or if the claimant’s only choice was to lay down amongst a
large group of people. Instead of this statement providing
2 support and credence to the claimant’s allegations of
disability, the assistant director’s statement actually seems
3
to suggest that the organization made discriminatory
4 judgments about the claimant’s functioning in spite of her
“chemical sensitivities and other health issues,” as those
5 were a “major factor” in preventing the hire of the claimant
as a staff member for the organization. Moreover, this
6
statement is not seen as very persuasive in light of the fact
that the claimant has continuously exposed herself to
7
possible triggers such as living outdoors in nature in a tent
8 without filtered or conditioned air, working amongst wildlife
such as cattle and horses, gardening, tilling soil, growing
9 her own vegetables, working in gardens/bushes, hiking,
camping near bodies of water and mines, catching fish in
10
rivers or streams, and continuing to smoke cigarettes
11 despite fragrances and other scents/smoke potentially
triggering her MCAS. The overall preponderance of the
12 evidence does not support that the claimant is unable to
perform work within the residual functional capacity
13
above.153
14
The ALJ articulated that the third-party statement was vague
15
and too general to offer substantive evidence. The Court finds the
16
ALJ’s reasoning to be sound and supported by the record. As the ALJ
17
18 noted, there was no dispute that Plaintiff had been prescribed an
19 EpiPen for possible anaphylaxis. Plaintiff testified at the hearing that
20
21
22
153 AR 35.
23
1 she had been prescribed and collected at least 9 of them. But the record
2 reflected that Plaintiff by her own admission had never actually had to
3
use one of those pens.
4
The ALJ clearly articulated that the third-party gave no specific
5
details as to Plaintiff having any reaction to any chemical or fragrance.
6
Additionally, the ALJ explained that the statement that Plaintiff was
7
8 triggered by fumes or perfumes is at odds with the fact that she
9 smoked cigarettes daily. Given the record before the Court, including
10
the ALJ’s articulated reasoning for given limited weight to the third-
11
party opinions, the Court concludes that Plaintiff has not met her
12
burden to show consequential error. Because the Court finds that
13
substantial evidence supports the ALJ’s reasoning, the Court declines
14
15 to remand as to this issue.
16 D. Step Five/RFC: Plaintiff fails to establish consequential
17
error.
18
Plaintiff argues the ALJ failed to properly include all her
19
limitations into the RFC and the hypothetical presented to the
20
vocational expert. However, this argument depends on her contentions
21
22 that the ALJ erred in evaluating her symptom reports and the medical
23
1 ||opinions described above. Because there was no error, this final
2 argument necessarily fails.154
° IV. Conclusion
Accordingly, IT IS HEREBY ORDERED:
6 1. The ALJ’s nondisability decision is AFFIRMED.
7 2. The Clerk’s Office shall TERM the parties’ briefs, ECF
8 Nos. 13 and 15, enter JUDGMENT in favor of the
9 Commissioner, and CLOSE the case.
IT IS SO ORDERED. The Clerk’s Office is directed to file this
order and provide copies to all counsel.
3 DATED this 14* day of October, 2025.
14 hued Thee.
15 EDWARD F.SHEA
Senior United States District Judge
17
18
19
20
21
22 154 See Magallanes v. Bowen, 881 F.2d 747, 756
23
DISPOSITIVE ORDER - 53