Walsh

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

WALSH, Civ No. 3:24-cv-01867-MC

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

MCSHANE, Judge:

Plaintiff asks this Court to review a final decision of the Commissioner of Social Security

that denied her application for disability insurance benefits under Title II. The Court has

jurisdiction to review such determinations under 42 U.S.C. §§ 405(g) and 1383(c)(3).

In seeking judicial review, Plaintiff alleges that the Administrative Law Judge neglected to

account for her persistence problems and erroneously identified jobs she can perform. Pl.’s Soc.

Sec. Br. 1, 5, ECF No. 10. Plaintiff also contends that the ALJ did not properly account for her

non-epileptic seizures in the Residual Functional Capacity. Id. at 1.

Because the ALJ properly incorporated Plaintiff’s persistence limitations into the RFC and

because she reasonably considered the effects of Plaintiff’s non-epileptic seizures, the

Commissioner’s decision is AFFIRMED.

LEGAL STANDARD

i. The five-step disability determination process

At the hearing stage of a Social Security Disability Insurance Benefits application, ALJs

follow a five-step process to determine whether a claimant is disabled and entitled to benefits under

the Social Security Act. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); see also 20 C.F.R.

§ 404.1520. A claimant bears the burden of proof for steps one through four. Tackett, 180 F.3d

at 1098; see also Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (if a claimant shows that

they cannot return to their old job, the burden of proof shifts to the Commissioner to show that

they can perform other kinds of work). If the claimant is found “disabled” or “not disabled” at any

of the five steps, the process terminates. Tackett, 180 F.3d at 1098. Throughout the process, the

ALJ determines credibility, resolves conflicts in the medical testimony, and squares ambiguities.

Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir. 2020).

At step one, the ALJ ascertains whether the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 404.101.1520(a)(4)(i). At step two, the ALJ decides whether a claimant’s

impairment, or combination of impairments, is “severe” within the meaning of the Regulations.

20 C.F.R. § 404.1520(a)(4)(ii). Step two is a baseline “screening device used to dispose of

groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (citation modified). If

a claimant alleges any mental impairments at step two, however, their claim undergoes a special

review process.

During this process, if an ALJ finds that the claimant has a “severe” mental impairment,

they determine the nature and degree of that impairment. 20 C.F.R. §§ 404.1520a(c)(2),

416.920a(c)(2). ALJs rate a claimant’s functionality given their mental impairment using four

factors: (1) a claimant’s ability to understand, remember, or apply information; (2) a claimant’s

ability to interact with others; (3) a claimant’s ability to concentrate, persist, or maintain pace; and

(4) a claimant’s ability to adapt or manage oneself. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3);

see also Hoopai v. Astrue, 499 F.3d 1071, 1077—78 (9th Cir. 2007) (an ALJ must rate the degree

of functional limitations for the four factors but needn’t make more specific findings of the

claimant’s functional limitations). Each of these four factors receives a severity rating: none, mild,

moderate, marked, or extreme. 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). When a claimant

has a severe mental impairment, the ALJ proceeds to step three to identify whether the impairment

meets the criteria of those included in the “Listings of Impairments.” 20 C.F.R. §

404.1520(a)(4)(iii); see also 20 C.F.R. Part 404, Subpart P, App. 1. If a claimant’s impairment

does not meet or equal a listing, the process continues to determine benefits eligibility.

At step four, the ALJ assesses a claimant’s Residual Functional Capacity, which is “a

summary of what the claimant is capable of doing . . . .” Valentine v. Comm’r Soc. Sec. Admin.,

574 F.3d 685, 689 (9th Cir. 2009). The RFC must contemplate all the claimant’s Medically

Determinable Impairments and their related symptoms, such as pain. 20 C.F.R.

§§ 416.945(a)(1)—(4). The ALJ ultimately evaluates whether a claimant can do work they have

done before given their RFC. Ford, 950 F.3d at 1149; see also Tackett, 180 F.3d at 1098—99.

Past relevant work is substantial gainful activity performed long enough for the claimant to have

meaningfully learned how to do it. Ford, 950 F.3d at 1149; see also 20 C.F.R. § 404.1560(b)(1).

If a claimant is found unable to perform past relevant work, the ALJ moves to the final

step. At step five, where the burden shifts to the Commissioner, the ALJ considers the applicant’s

background and RFC to decide whether they can work in the national economy. Gutierrez v.

Colvin, 844 F.3d 804, 806 (9th Cir. 2016); see also Lockwood v. Comm’r Soc. Sec. Admin., 616

F.3d 1068, 1071 (9th Cir. 2010) (once a claimant shows that they cannot perform past relevant

work, the Commissioner bears the burden of showing that the claimant can do some other kind of

work existing “in significant numbers” in the national economy).

To meet their burden at step five, ALJs can pose a hypothetical to a vocational expert that

incorporates the claimant’s RFC. Valentine, 574 F.3d at 689. The vocational expert then “opines

on what kind of work someone with the limitations of the claimant could hypothetically do.” Id.

An ALJ’s hypothetical to the expert must accurately describe the claimant’s true limitations, in

which case the ALJ can rely on the expert’s testimony. Leach v. Kijakazi, 70 F.4th 1251, 1254—

55 (9th Cir. 2023).

After the vocational expert testifies, the ALJ must finally determine whether the claimant

can find work in the national economy that accommodates their age, education, work experience,

and RFC. Valentine, 574 F.3d at 689—90; see also Tackett, 180 F.3d at 1100—01 (the

Commissioner bears the burden at step five to show that the claimant can perform some other work

considering RFC, age, education, and prior employment). If the ALJ concludes that there is

suitable work in significant numbers in the national economy, they will deny the claimant’s

application for disability benefits.

ii. A district court’s jurisdiction to review an ALJ’s decision

At the conclusion of the hearing, the ALJ issues a written decision. 20 C.F.R.

§§ 404.900(a)(3), 404.929—61, 416.1400(a), 416.1429—61. After a finding of non-disability, a

claimant can request review from the Administration’s Appeals Council. 20 C.F.R.

§ 404.900(a)(4). If the Appeals Council declines the request for review, it becomes the

Commissioner’s final decision. Sims v. Apfel, 530 U.S. 103, 106—07 (2003) (should the Appeals

Council deny a claimant’s request for review, then the ALJ’s opinion becomes the final, appealable

decision). A claimant can then seek judicial review because they will have exhausted the

administrative procedures prescribed by the Social Security Act. 42 U.S.C. § 405(g); see also Bass

v. Soc. Sec. Admin., 872 F.2d 832, 833 (9th Cir. 1989) (a claimant’s failure to exhaust the

prescribed administrative procedures deprives the district court of jurisdiction). In reviewing an

ALJ’s decision, federal courts may: (1) affirm the ALJ’s finding of non-disability; (2) remand the

case for further administrative proceedings, including another hearing; or (3) remand the case for

an immediate award of benefits. 42 U.S.C. § 405(g).

On appeal, a district court reviews whether the ALJ’s findings are based on legal error or

“not supported by substantial evidence in the record as a whole.” Tackett 180 F.3d at 1097; see

also Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993) (the Commissioner’s denial of benefits is

“disturbed only if it is not supported by substantial evidence on the record as a whole or it is based

on legal error.”). Substantial evidence is “more than a mere scintilla but less than a

preponderance.” Tackett, 180 F.3d at 1098 (citation modified). It is enough evidence for a

reasonable person to accept as “adequate to support a conclusion.” Smolen v. Chater, 80 F.3d

1273, 1279 (9th Cir. 1996) (citation modified). If the evidence is in equipoise, “the court may not

substitute its judgment for that of the ALJ.” Tackett, 180 F.3d at 1098 (citation modified).

A district court considers the record as a whole, “weighing both the evidence that supports

and detracts from” the Commissioner’s decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.

1986). A reviewing court cannot affirm the Commissioner’s decision “on a ground that the

[Administration] did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 454

F.3d 1050, 1054 (9th Cir. 2006) (citation modified). But the Commissioner’s findings stand if

supported by substantial evidence and not based on legal error.

FACTS AND PRIOR PROCEEDINGS

Plaintiff applied for disability insurance benefits on April 11, 2022, alleging disability

beginning on January 15, 2022. Tr. 169—175. Approximately a year later, on May 6, 2023, the

Commissioner denied her benefits application. Tr. 69—75. In July, Plaintiff filed a request for

reconsideration that was denied on November 6, 2023. Tr. 74—75, 85—88. Plaintiff then

requested a hearing by an Administrative Law Judge, which occurred in front of the Honorable

Paula M. Martin on June 12, 2024. Tr. 15—30. The ALJ denied Plaintiff’s request for disability

insurance benefits and the Appeals Council declined to review that decision. Tr. 1—6. At that

time, Plaintiff’s application for benefits became ripe for judicial review.

The core issue is whether Plaintiff is disabled under §§ 216(i) and 223(d) of the Social

Security Act as determined by the five-step process. Tr. 25; Pl.’s Soc. Sec. Br. 1. At step one, the

ALJ found that Plaintiff has not engaged in substantial gainful activity since January 15, 2022, the

alleged disability onset date. Tr. 17. At step two, the ALJ determined that Plaintiff has the

following severe impairments: non-epileptic seizure, depressive disorder, generalized anxiety

disorder, post-traumatic stress disorder, and attention deficit hyperactivity disorder. Id. These

impairments “significantly limit the ability to perform basic work activities . . . .” Id. At step

three, the ALJ ascertained that none of Plaintiff’s impairments, or combination of impairments,

meets or equals the severity of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1.

Tr. 18.

Regarding the “Paragraph B” criteria for mental impairments—relevant at steps two and

three—the ALJ concluded that Plaintiff has no more than a moderate limitation in any of the

domains. Tr. 19. The ALJ found that “because the claimant’s mental impairments do not cause

at least two ‘marked’ limitations or one ‘extreme’ limitation, the ‘Paragraph B’ criteria are not

satisfied.” Id. The ALJ also noted that Plaintiff failed to establish the presence of “Paragraph C”

criteria because their mental disorder in this listing category is not “serious and persistent.” Id.

Before step four, the ALJ crafted Plaintiff’s Residual Functional Capacity. The RFC

provides:

After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform light work as defined in 20

C.F.R. 404.1567(b) except they can never climb ladders, ropes, or scaffolds; can

frequently climb ramps and stairs, balance as defined in the SCO, stoop, kneel,

crouch, and crawl; can tolerate no exposure to hazards such as unprotected heights

and heavy machinery; can do no driving as part of the job duties; can understand,

remember and carry out simple instructions; can deal with occasional changes in a

work setting; can use judgment to make simple work related decisions; cannot

perform work requiring a specific production rate (such as assembly line work);

and is able to tolerate frequent contact with supervisors, occasional contact with co-

workers, and no direct contact with the general public.

Tr. 20. The ALJ found that Plaintiff does not have past relevant work, which advances the

evaluation process to the fifth and final step. Tr. 17, 23. Here, the ALJ adjudged that “there are

jobs that exist in significant numbers in the national economy that the claimant can perform.” Tr.

24. Thus, “the claimant has not been under a disability, as defined in the Social Security Act, from

January 15, 2022, through the date of this decision.” Tr. 25. It is “this decision”—a finding of

non-disability—that Plaintiff appeals now.

DISCUSSION

i. First, the ALJ properly accounted for Plaintiff’s persistence limitations in the

RFC.

Contrary to Plaintiff’s allegations, there is sufficient evidence that the ALJ properly

considered Plaintiff’s “moderate difficulty with persistence in attention” in formulating the RFC.

Tr. 22, 790. It is true that the RFC must account for all a claimant’s Medically Determinable

Impairments, both severe and non-severe. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). Plaintiff

claims that the ALJ erroneously omitted persistence-based restrictions in the RFC, though she

found that Plaintiff has a moderate limitation in that area. Pl.’s Soc. Sec. Br. 4—5; Tr. 19. “The

ALJ’s failure to establish persistence-related limitations is demonstrated by the ALJ’s actual RFC

that has no correlation to persistence deficiencies.” Pl.’s Soc. Sec. Br. 5. Plaintiff does not

challenge the moderate degree of limitation that the ALJ assigned to her ability to “concentrate,

persist, or maintain pace.” Id. at 3—9; Tr. 18. But Plaintiff alleges that her RFC is inaccurate,

which constitutes harmful error. Pl.’s Soc. Sec. Br. 9.

Plaintiff reasons that, since the ALJ “formulated an RFC that materially deviated” from the

expert’s credited opinion, the RFC is in error. Pl.’s Soc. Sec. Br. 6—7. Plaintiff argues that “a

restriction [in the RFC] to understanding, remembering, and carrying out ‘simple instructions’

addresses the complexity of instructions involved, and has no relationship to whether Walsh is

capable of sustaining her attention to carry out instructions or tasks.” Id. at 5. Plaintiff maintains

that her ability to persist is unrelated to whether a task is simple or complex. Id. Plaintiff offers

that the RFC’s restriction to “occasional” changes in a work setting does not adequately account

for Plaintiff’s “deficiencies in persistence.” Id. Prescribing work without a specific production

rate “has no relationship to whether Plaintiff is able to [be] persistent in finishing tasks.” Id. This

instruction “only addresses the speed in which tasks are performed and does not mitigate Walsh’s

inability to perform tasks without significant delays . . . .” Id. In sum, Plaintiff argues that the

ALJ should have formulated a work restriction in the RFC that uniquely accommodates her

persistence problems and “mitigate[s] the effects of this deficit entirely . . . .” Id. at 5—6.

This Court finds that the ALJ reasonably assessed Plaintiff’s persistence limitations and

accounted for them in the RFC. At the heart of Plaintiff’s claim that the ALJ committed harmful

error is the question of whether a restriction to simple tasks sufficiently addresses her persistence

limitations. The Court holds that it does.

The ALJ determined that Plaintiff can handle “occasional” changes in a work setting, can

make simple work-related decisions, and cannot perform work requiring “a specific production

rate”, including assembly line jobs. Tr. 20. This portion of the RFC relates to Plaintiff’s moderate

limitation “with regard to concentrating, persisting or maintaining pace . . . .” Id. at 19.

Importantly, “an ALJ’s assessment of a claimant adequately captures restrictions related to

concentration, persistence, or pace” when the assessment is “consistent with restrictions identified

in the medical testimony.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). In

Stubbs-Danielson, the ALJ considered multiple consultative assessments stating that the claimant

was “moderately limited” in her ability “to perform at a consistent pace without an unreasonable

number and length of rest periods . . . .” Id. at 1173—74. The ALJ translated the claimant’s pace

limitation “into the only concrete restriction[] available to him . . .”: a restriction to “simple tasks”

recommended by an examiner. Id. at 1174. The court confirmed that a hypothetical describing

someone who can do “simple, routine, repetitive work” properly captures “deficiencies in

concentration, persistence, or pace.” Id.

Like in Stubbs-Danielson, the ALJ incorporated Plaintiff’s moderate limitations regarding

pace and persistence into the RFC using a restriction to simple tasks. Tr. 20, 790. The ALJ went

beyond the adjudicator in Stubbs-Danielson by also restricting Plaintiff from “work requiring a

specific production rate . . . .” Tr. 20. Plaintiff points to no evidence that her RFC falls short of

mitigating persistence limitations according to the law. See Pl.’s Soc. Sec. Br. 3—9. Plaintiff

simply states that her “persistence-related difficulties were improperly disregarded.” Id. at 6.

Plaintiff cites the ALJ’s explanation for the mental RFC, specifically that “limits on workplace

task complexity, decision-making, work setting changes, production rate pacing, and interaction

with others” accommodate Plaintiff’s limitations. Id.; Tr. 21—22. Plaintiff reasons that the ALJ’s

justification lacks specific mention of her “persistence-based impediments to work.” Pl.’s Soc.

Sec. Br. 6. This omission means to Plaintiff that “the ALJ found [her] unlimited in terms of her

ability to persist when performing tasks.” Id. Despite Plaintiff’s argument, both the relative

complexity of a task or instruction and whether Plaintiff would be required to produce a specified

output relate to her moderate persistence limitation. See Stubbs-Danielson, 539 F.3d at 1174 (an

ALJ’s hypothetical describing the ability to do simple, routine work captures deficiencies in

persistence).

The ALJ is charged with “translating and incorporating clinical findings into a succinct

RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). Plaintiff correctly

identifies, “when posing a hypothetical question to the [vocational expert], the ALJ must include

all of the claimant’s impairments in the hypothetical.” Pl.’s Soc. Sec. Br. 9; see also Tackett 180

F.3d at 1101. However, Plaintiff fails to establish that the hypotheticals used in her case are

incomplete and therefore legally deficient. She instead concludes that “significant restrictions

were improperly excluded from the RFC and the vocational hypotheticals . . . thereby creating

error.” Pl.’s Soc. Sec. Br. 8. Plaintiff even agrees that, in delivering a hypothetical, “an ALJ need

not explicitly include the doctors’ findings or narrative explanations verbatim . . . .” Id. Yet here,

the hypotheticals posed to the vocational expert match Plaintiff’s RFC almost verbatim. See Tr.

20, 43—46.

Despite Plaintiff’s allegations, there is substantial evidence that the ALJ’s hypotheticals

are complete because she incorporated Plaintiff’s persistence limitations through restrictions

regarding task complexity and output rate. The Court finds no error in the ALJ’s formulation of

Plaintiff’s RFC.

ii. Second, the ALJ properly considered the effect of Plaintiff’s seizures in a finding

of non-disability.

The ALJ reasonably evaluated the effects of Plaintiff’s non-epileptic seizures in her final

disability determination. First, the ALJ found that Plaintiff’s only severe physical impairment is

non-epileptic seizures. See Pl.’s Soc. Sec. Br. 9; Tr. 17. Second, the ALJ placed non-epileptic

seizure precautions into Plaintiff’s RFC and included them in the hypothetical presented to the

vocational expert. Tr. 20—22; 43—45. However, Plaintiff argues that the ALJ erred by ignoring

her “true residual difficulties caused by seizures that undermine her capacity to work for

considerable periods of time . . . .” Pl.’s Soc. Sec. Br. 10. Plaintiff further contends that the ALJ

improperly discounted Plaintiff’s testimony that she experiences three to four seizures daily and

that each one could incapacitate her for up to 15 minutes. Id. at 11—12; Tr. 37—38. “Despite the

significance of Plaintiff’s testimony regarding seizures, the ALJ disregarded how long seizures

last and the preictal and postictal effects from seizures when forming the RFC . . . .” Pl.’s Soc.

Sec. Br. 16. Plaintiff maintains that the ALJ erroneously dismissed her testimony about the non-

epileptic seizures and how they affect her life. Id.

ALJs weigh a claimant’s subjective testimony using a two-step analysis. See, e.g.,

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). ALJs first determine whether a claimant

has a Medically Determinable Impairment that could reasonably be expected to result in the

symptoms to which a claimant testifies. Lingenfelter v. Astrue, 504 F.3d 1028, 1035—36 (9th Cir.

2007). In this case, the ALJ found that Plaintiff’s “medically determinable impairments could

reasonably be expected to cause the alleged symptoms . . . .” Tr. 20. However, the ALJ declared

that Plaintiff’s testimony about her non-epileptic seizures contradicts medical evidence in the

record. Id. at 20—21.

Plaintiff accuses the ALJ of generically stating, in boilerplate language, that her testimony

is “not entirely consistent with medical evidence and other evidence in the record for the reasons

explained in this decision.” Pl.’s Soc. Sec. Br. 16; Tr. 20—21. In Treichler v. Comm’r of Soc.

Sec. Admin., the court found this same language insufficient to discredit the claimant’s testimony

but only because “the ALJ stopped after this introductory remark.” 775 F.3d 1090, 1103 (9th Cir.

2014). Courts should “specifically identify the testimony she or he finds not to be credible

and . . . explain what evidence undermines that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277

(9th Cir. 2020) (citation modified). In so doing, ALJs are not required to “perform a line-by-line

exegesis of the claimant’s testimony,” but they must identify medical evidence that conflicts with

Plaintiff’s testimony. Id. Unlike the ALJ in Treichler, the ALJ in this case did just that.

Notably, the ALJ identified contradictions between Plaintiff’s testimony about her non-

epileptic seizures and statements to medical providers. See, e.g., Tr. 21 (citing Tr. 464) (initial

psychiatric evaluation notes include Plaintiff’s statements that her seizures are considered pseudo

seizures and that she is not in acute need of any medications); Tr. 21 (citing Tr. 1640) (ER visit

notes include Plaintiff’s statements that she had seven seizures in a row without postictal periods).

Even when a claimant’s subjective complaints appear in a provider’s treatment notes, an ALJ can

discredit them if the notes do not contain objective medical evidence of the same. See, e.g., Batson

v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195 n.3 (9th Cir. 2004) (if a provider’s treatment

notes do not include objective medical evidence in addition to a claimant’s subjective descriptions

of pain, then an ALJ may reasonably discredit them).

Substantial evidence supports the ALJ’s formulation of the RFC based on medical evidence

in the record that Plaintiff’s symptoms are mild or moderate. Tr. 21; see also Kitchen v. Kijakazi,

82 F.4th 732, 739 (9th Cir. 2023) (distinguishing “mild” or “moderate” impairments from

disabling ones). The ALJ reasoned, “consistent with medical evidence, [Plaintiff’s] mental

impairments are found to result [in] limitations to seizure precautions” and stress reduction. Tr.

21. The ALJ further justified the RFC by explaining that Plaintiff’s treatment had been

conservative. Tr. 21—22 (citing Tr. 1195, 1632). Evidence of conservative treatment “is

sufficient to discount a claimant’s testimony” about the severity of an impairment. Parra v. Astrue,

481 F.3d 742, 751 (9th Cir. 2007) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)).

Thus, the ALJ did more than provide a detailed overview of Plaintiff’s medical history; instead,

she offered “clear and convincing reasons” for how she formulated Plaintiff’s RFC. Brown-

Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)1.

This Court also disagrees with Plaintiff’s assertion that the ALJ failed to include all seizure-

based limitations in her hypothetical to the vocational expert. Pl.’s Soc. Sec. Br. 18. As explained,

the ALJ reasonably found that seizure precautions and stress reduction are consistent with medical

evidence in the record. Tr. 21. Because the ALJ’s hypothetical to the vocational expert included

these restrictions, the hypothetical is not incomplete. Tr. 43—45; Pl.’s Soc. Sec. Br. 18.

Substantial evidence supports that the ALJ reasonably concluded that Plaintiff is “not limited to a

debilitating degree.” Def.’s Br. 9, ECF No. 14.

CONCLUSION

Because substantial evidence supports a finding of non-disability, the Commissioner’s

decision is AFFIRMED.

IT IS SO ORDERED.

DATED this 30th day of October 2025.

_s/Michael J. McShane____________

Michael McShane

United States District Judge

1 The Commissioner maintains that the Ninth Circuit’s “clear and convincing” standard conflicts

with the “substantial evidence” standard applied to Social Security cases. Def.’s Br. 7 n. 3, ECF

No. 14; see also 42 U.S.C. § 405(g). Defendant asserts that the ALJ’s findings pass both

evidentiary standards. Def.’s Br. 7 n. 3. The Court agrees.