Neifert v. Bisignano

[1] FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [2] Aug 22, 2025 3 SEAN F. MCAVOY, CLERK [4] 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 MELVIN N.,1 No. 1:24-CV-03084-MKD 8 Plaintiff, ORDER AFFIRMING DECISION OF COMMISSIONER 9 v. ECF Nos. 8, 9 10 FRANK BISIGNANO, COMMISSIONER OF SOCIAL 11 SECURITY,2 12 Defendant. [14] 15 1 To protect the privacy of plaintiffs in social security cases, the Court identifies 16 them by only their first names and the initial of their last names. See LCivR 5.2(c). 17 2 Frank Bisignano became the Commissioner of Social Security on May 7, 18 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Frank 19 Bisignano is substituted for Martin O’Malley as the defendant in this suit. No 20 further action need be taken to continue this suit. See 42 U.S.C. § 405 (g). 1 Before the Court are the parties’ briefs. ECF Nos. 8, 9. The Court, having 2 reviewed the administrative record and the parties’ briefing, is fully informed. For 3 the reasons discussed below, the Court affirms the Commissioner’s decision. 4 JURISDICTION 5 Plaintiff filed an application for benefits on April 17, 2020, alleging 6 disability beginning October 1, 2018. Tr. 426-32. The application was denied 7 initially and upon reconsideration. Tr. 204-34. An Administrative Law Judge 8 (ALJ) held a hearing on July 16, 2021. Tr. 62-89. The ALJ issued an unfavorable 9 decision on July 28, 2021. Tr. 235-54. The Appeals Council remanded the matter 10 on November 4, 2022. Tr. 255-61. A different ALJ held a hearing on October 24, 11 2023, Tr. 90-127, and issued an unfavorable decision on November 28, 2023. Tr. 12 18-37. The Appeals Council denied review on April 19, 2024. Tr. 1-7. Plaintiff 13 appealed this final decision of the Commissioner on June 5, 2024. ECF No. 1. 14 The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405 (g). 15 STANDARD OF REVIEW 16 A district court’s review of a final decision of the Commissioner of Social 17 Security is governed by 42 U.S.C. § 405 (g). The scope of review under § 405(g) is 18 limited; the Commissioner’s decision will be disturbed “only if it is not supported 19 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153 , 20 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 1 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 2 (quotation and citation omitted). Stated differently, substantial evidence equates to 3 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 4 citation omitted). In determining whether the standard has been satisfied, a 5 reviewing court must consider the entire record as a whole rather than searching 6 for supporting evidence in isolation. Id. 7 In reviewing a denial of benefits, a district court may not substitute its 8 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152 , 9 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 10 rational interpretation, [the court] must uphold the ALJ’s findings if they are 11 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 12 F.3d 1104, 1111 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 13 404.1502(a). Further, a district court “may not reverse an ALJ’s decision on 14 account of an error that is harmless.” Id. An error is harmless “where it is 15 inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 16 (quotation and citation omitted). The party appealing the ALJ’s decision generally 17 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 18 396, 409-10 (2009). [20] 1 FIVE-STEP EVALUATION PROCESS 2 A claimant must satisfy two conditions to be considered “disabled” within 3 the meaning of the Social Security Act. First, the claimant must be “unable to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which 6 has lasted or can be expected to last for a continuous period of not less than twelve 7 months.” 42 U.S.C. § 423 (d)(1)(A). Second, the claimant’s impairment must be 8 “of such severity that he is not only unable to do his previous work[,] but cannot, 9 considering his age, education, and work experience, engage in any other kind of 10 substantial gainful work which exists in the national economy.” 42 U.S.C. § 11 423(d)(2)(A). 12 The Commissioner has established a five-step sequential analysis to 13 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 14 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 15 work activity. 20 C.F.R. § 404.1520 (a)(4)(i). If the claimant is engaged in 16 “substantial gainful activity,” the Commissioner must find that the claimant is not 17 disabled. 20 C.F.R. § 404.1520 (b). 18 If the claimant is not engaged in substantial gainful activity, the analysis 19 proceeds to step two. At this step, the Commissioner considers the severity of the 20 claimant’s impairment. 20 C.F.R. § 404.1520 (a)(4)(ii). If the claimant suffers 1 from “any impairment or combination of impairments which significantly limits 2 [his or her] physical or mental ability to do basic work activities,” the analysis 3 proceeds to step three. 20 C.F.R. § 404.1520 (c). If the claimant’s impairment 4 does not satisfy this severity threshold, however, the Commissioner must find that 5 the claimant is not disabled. Id. 6 At step three, the Commissioner compares the claimant’s impairment to 7 severe impairments recognized by the Commissioner to be so severe as to preclude 8 a person from engaging in substantial gainful activity. 20 C.F.R. § 9 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 10 enumerated impairments, the Commissioner must find the claimant disabled and 11 award benefits. 20 C.F.R. § 404.1520 (d). 12 If the severity of the claimant’s impairment does not meet or exceed the 13 severity of the enumerated impairments, the Commissioner must pause to assess 14 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 15 defined generally as the claimant’s ability to perform physical and mental work 16 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 17 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 18 At step four, the Commissioner considers whether, in view of the claimant’s 19 RFC, the claimant is capable of performing work that he or she has performed in 20 the past (past relevant work). 20 C.F.R. § 404.1520 (a)(4)(iv). If the claimant is 1 capable of performing past relevant work, the Commissioner must find that the 2 claimant is not disabled. 20 C.F.R. § 404.1520 (f). If the claimant is incapable of 3 performing such work, the analysis proceeds to step five. 4 At step five, the Commissioner considers whether, in view of the claimant’s 5 RFC, the claimant is capable of performing other work in the national economy. [6] 20 C.F.R. § 404.1520 (a)(4)(v). In making this determination, the Commissioner 7 must also consider vocational factors such as the claimant’s age, education, and 8 past work experience. Id. If the claimant is capable of adjusting to other work, the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 10 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the 11 analysis concludes with a finding that the claimant is disabled and is therefore 12 entitled to benefits. Id. 13 The claimant bears the burden of proof at steps one through four above. 14 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 15 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 16 capable of performing other work; and 2) such work “exists in significant numbers 17 in the national economy.” 20 C.F.R. § 404.1560 (c)(2); Beltran v. Astrue, 700 F.3d 18 386, 389 (9th Cir. 2012). [20] 1 ALJ’S FINDINGS 2 At step one, the ALJ found Plaintiff, who met the insured status 3 requirements through June 30, 2019, had not engaged in substantial gainful activity 4 from the alleged onset date of October 1, 2018, through June 30, 2019. Tr. 24. At 5 step two, the ALJ found that Plaintiff had the following severe impairments: 6 depressive disorder; bipolar disorder; and posttraumatic stress disorder. Tr. 24. 7 At step three, the ALJ found Plaintiff did not have an impairment or 8 combination of impairments that meets or medically equals the severity of a listed 9 impairment. Tr. 24-25. The ALJ then concluded that Plaintiff had the RFC to 10 perform a full range of work with the following limitations: 11 [H]e was limited to simple routine task work; he could have superficial and occasional interaction with the general public; he could work in the same 12 room with coworkers but he should not work in coordination with coworkers; he could have interacted occasionally with supervisors; and he 13 could adapt to simple, occasional workplace changes. 14 Tr. 26. 15 At step four, the ALJ found Plaintiff could have performed his past relevant 16 work as a sorter, agricultural produce. Tr. 31. Alternatively, at step five, the ALJ 17 found that, considering Plaintiff’s age, education, work experience, RFC, and 18 testimony from the vocational expert, there were jobs that existed in significant 19 numbers in the national economy that Plaintiff could perform, such as janitor and 20 dry cleaner helper. Tr. 32. Therefore, the ALJ concluded Plaintiff was not under a 1 disability, as defined in the Social Security Act, from the alleged onset date of 2 October 1, 2018, through June 30, 2019. Tr. 32. 3 ISSUES 4 Plaintiff seeks judicial review of the Commissioner’s final decision denying 5 him disability insurance benefits under Title II of the Social Security Act. Plaintiff 6 raises the following issues for review: 7 1. Whether the ALJ properly evaluated the medical opinion evidence; 8 2. Whether the ALJ properly evaluated Plaintiff’s testimony; 9 3. Whether the ALJ properly evaluated lay witness evidence; 10 4. Whether the ALJ erred at step four; and 11 5. Whether the ALJ conducted a proper step five analysis. 12 ECF No. 8 at 2. 13 DISCUSSION 14 A. Medical Opinion Evidence 15 For claims filed on or after March 27, 2017, new regulations apply that 16 change the framework for how an ALJ must evaluate medical opinion evidence. 17 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 18 168819, 82 Fed. Reg. 5844 -01 (Jan. 18, 2017); 20 C.F.R. §§ 404 .1520c, 416.920c. 19 The new regulations provide that the ALJ will no longer “give any specific 20 evidentiary weight . . . to any medical opinion(s) . . . .” Revisions to Rules, 2017 1 WL 168819 , 82 Fed. Reg. 5844 , at 5867-68; see 20 C.F.R. §§ 404 .1520c(a), 2 416.920c(a). Instead, an ALJ must consider and evaluate the persuasiveness of all 3 medical opinions or prior administrative medical findings from medical sources. [4] 20 C.F.R. §§ 404 .1520c(a)-(b), 416.920c(a)-(b). 5 The factors for evaluating the persuasiveness of medical opinions and prior 6 administrative medical findings include supportability, consistency, relationship 7 with the claimant (including length of the treatment, frequency of examinations, 8 purpose of the treatment, extent of the treatment, and the existence of an 9 examination), specialization, and “other factors that tend to support or contradict a 10 medical opinion or prior administrative medical finding” (including, but not 11 limited to, “evidence showing a medical source has familiarity with the other 12 evidence in the claim or an understanding of our disability program’s policies and 13 evidentiary requirements”). 20 C.F.R. §§ 404 .1520c(c)(1)-(5), 416.920c(c)(1)-(5). 14 Supportability and consistency are the most important factors, and therefore the 15 ALJ is required to explain how both factors were considered. 20 C.F.R. §§ 16 404.1520c(b)(2), 416.920c(b)(2). Supportability and consistency are explained in 17 the regulations: 18 Supportability. The more relevant the objective medical evidence and 19 supporting explanations presented by a medical source are to support his or 20 her medical opinion(s) or prior administrative medical finding(s), the more 1 persuasive the medical opinions or prior administrative medical finding(s) 2 will be. 3 Consistency. The more consistent a medical opinion(s) or prior 4 administrative medical finding(s) is with the evidence from other medical 5 sources and nonmedical sources in the claim, the more persuasive the 6 medical opinion(s) or prior administrative medical finding(s) will be. [7] 20 C.F.R. §§ 404 .1520c(c)(1)-(2), 416.920c(c)(1)-(2). The ALJ may, but is not 8 required to, explain how the other factors were considered. 20 C.F.R. §§ 9 404.1520c(b)(2), 416.920c(b)(2). However, when two or more medical opinions 10 or prior administrative findings “about the same issue are both equally well11 supported . . . and consistent with the record . . . but are not exactly the same,” the 12 ALJ is required to explain how “the other most persuasive factors in paragraphs 13 (c)(3) through (c)(5)” were considered. 20 C.F.R. §§ 404 .1520c(b)(3), 14 416.920c(b)(3). 15 The Ninth Circuit addressed the issue of whether the changes to the 16 regulations displace the longstanding case law requiring an ALJ to provide specific 17 and legitimate reasons to reject an examining provider’s opinion. Woods v. 18 Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). The Court held that the new 19 regulations eliminate any hierarchy of medical opinions, and the specific and 20 legitimate standard no longer applies. Id. The Court reasoned the “relationship 1 factors” remain relevant under the new regulations, and thus the ALJ can still 2 consider the length and purpose of the treatment relationship, the frequency of 3 examinations, the kinds and extent of examinations that the medical source has 4 performed or ordered from specialists, and whether the medical source has 5 examined the claimant or merely reviewed the claimant's records. Id. at 792 . 6 However, the ALJ is not required to make specific findings regarding the 7 relationship factors. Id. Even under the new regulations, an ALJ must provide an 8 explanation supported by substantial evidence when rejecting an examining or 9 treating doctor’s opinion as unsupported or inconsistent. Id. 10 Plaintiff argues the ALJ improperly discounted two medical opinions. ECF 11 No. 8 at 12-18 12 1. Brett Wenger, LMHC 13 Mr. Wenger, Plaintiff’s treating mental health counselor, authored a mental 14 source statement dated June 15, 2021, opining, in relevant part, that Plaintiff would 15 be off-task at least 30% during a 40-hour workweek and would miss at least four 16 days per month if attempting to work a 40-hour workweek. Tr. 971. The ALJ 17 found Mr. Wenger’s opinion not persuasive. Tr. 28. 18 Among other reasons, the ALJ discounted Mr. Wenger’s opinion as 19 internally inconsistent: “[H]is opinion that [Plaintiff] would have marked 20 limitations with significant difficulty remaining on task or maintaining attendance 1 is not entirely consistent with his own treatment notes that frequently show 2 appropriate behavior; intact cognition with normal memory and concentration; and 3 do not suggest that [Plaintiff] had difficulty attending his appointments[.]” Tr. 28 4 (citations omitted). This finding is legally sound, see Tommasetti v. Astrue, 533 5 F.3d 1035, 1041 (9th Cir. 2008) (an ALJ may discount a doctor’s opinion when it 6 is inconsistent with or unsupported by the doctor’s own clinical findings), and 7 substantial evidence supports it, see, e.g., Tr. 691 (October 18, 2018, treatment 8 note indicating, among other things, unremarkable mood/affect, thought 9 process/orientation, behavior/functioning, and medical condition); Tr. 695-96 10 (October 25, 2018, mental status examination indicating, among other things, 11 Plaintiff’s attention span and concentration, and thought process/content and 12 cognition were within normal limits); Tr. 741-72 (January 28, 2019, mental status 13 examination indicating the same); Tr. 869-70 (January 9, 2020, treatment note 14 indicating, among other things, unremarkable mood/affect, thought 15 process/orientation, behavior/functioning, and medical condition, and that Plaintiff 16 was “fully oriented in all spheres; with logical thought process and normal 17 associations”); Tr. 880 (March 12, 2020, mental status examination indicating, 18 among other things, “alert” and “oriented” and “[m]emory, cognition, fund of 19 knowledge grossly intact”); Tr. 910 (May 18, 2020, mental status examination [20] 1 indicating the same). The ALJ thus did not err by discounting the opinion on this 2 ground. 3 Because the ALJ gave a valid reason, supported by substantial evidence, to 4 discount the opinion, the Court need not address the balance of the ALJ’s 5 remaining reasons for discounting the opinion. Any inclusion of erroneous reasons 6 was inconsequential and therefore harmless. See Carmickle v. Comm’r, Soc. Sec. 7 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). 8 2. Tasmyn Bowes, Ph.D. 9 Dr. Bowes examined Plaintiff on February 23, 2018, conducting a clinical 10 interview and performing a mental status evaluation. Tr. 615-28. Dr. Bowes 11 assessed the severity of Plaintiff’s mental impairments as “marked” and opined, 12 among other things, Plaintiff was markedly limited in communicating and 13 performing effectively in a work setting, maintaining appropriate behavior in a 14 work setting, completing a normal workday and workweek without interruptions 15 from psychologically based symptoms, and setting realistic goals and planning 16 independently. Tr. 619. The ALJ found the opinion not persuasive. Tr. 29. 17 Among other reasons, the ALJ discounted the opinion on the same ground 18 used to discount Mr. Wenger’s opinion, as discussed above. Tr. 28-29; see Tr. 28. 19 For the reasons discussed above, the ALJ did not err by discounting the opinion on 20 this ground. The ALJ also properly discounted the opinion on the ground it “relates 1 to an administratively final previously adjudicated period and is therefore of 2 limited relevance[.]” Tr. 29. See, e.g., Carmickle, 533 F.3d at 1165 (“Medical 3 opinions that predate the alleged onset of disability are of limited relevance.”) 4 (citation omitted). 5 Because the ALJ gave valid reasons, supported by substantial evidence, to 6 discount the opinion, the Court need not address the balance of the ALJ’s 7 remaining reasons for discounting the opinion. Any inclusion of erroneous reasons 8 was inconsequential and therefore harmless. See Carmickle, 533 F.3d at 1162 . 9 B. Plaintiff’s Testimony 10 Plaintiff faults the ALJ for failing to rely on reasons that were clear and 11 convincing in discrediting his symptom claims. ECF No. 8 at 8-11. An ALJ 12 engages in a two-step analysis to determine whether to discount a claimant’s 13 testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 1119029 , at *2. 14 “First, the ALJ must determine whether there is objective medical evidence of an 15 underlying impairment which could reasonably be expected to produce the pain or 16 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 17 “The claimant is not required to show that [the claimant’s] impairment could 18 reasonably be expected to cause the severity of the symptom [the claimant] has 19 alleged; [the claimant] need only show that it could reasonably have caused some 20 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 1 Second, “[i]f the claimant meets the first test and there is no evidence of 2 malingering, the ALJ can only reject the claimant’s testimony about the severity of 3 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 4 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 5 omitted). General findings are insufficient; rather, the ALJ must identify what 6 symptom claims are being discounted and what evidence undermines these claims. [7] Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 8 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 9 explain why it discounted claimant’s symptom claims)). “The clear and 10 convincing [evidence] standard is the most demanding required in Social Security 11 cases.” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. Sec. 12 Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 13 Factors to be considered in evaluating the intensity, persistence, and limiting 14 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 15 duration, frequency, and intensity of pain or other symptoms; 3) factors that 16 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 17 side effects of any medication an individual takes or has taken to alleviate pain or 18 other symptoms; 5) treatment, other than medication, an individual receives or has 19 received for relief of pain or other symptoms; 6) any measures other than treatment 20 an individual uses or has used to relieve pain or other symptoms; and 7) any other 1 factors concerning an individual’s functional limitations and restrictions due to 2 pain or other symptoms. SSR 16-3p, 2016 WL 1119029 , at *7; 20 C.F.R. § 3 416.929(c). The ALJ is instructed to “consider all of the evidence in an 4 individual’s record,” to “determine how symptoms limit ability to perform work5 related activities.” SSR 16-3p, 2016 WL 1119029 , at *2. 6 The ALJ indicated, among other things, Plaintiff “testified that he was 7 unable to work due to medication side effects to include severe tremors; anxiety 8 with panic attacks; difficulty interacting with others to include family members; 9 irritability toward others; difficulty with activities of daily living; and suicidal 10 thoughts.” Tr. 26-27. The ALJ found that Plaintiff’s medically determinable 11 impairments could reasonably be expected to cause some of the alleged symptoms, 12 but that Plaintiff’s statements concerning the intensity, persistence, and limiting 13 effects of his symptoms were not entirely consistent with the evidence. Tr. 27. 14 Among other reasons, the ALJ discounted Plaintiff’s testimony as 15 inconsistent with the medical evidence. Tr. 27. Paralleling the reasoning provided 16 to discount the medical opinions discussed above, the ALJ found that “the severity 17 and frequency of [Plaintiff’s] reported mental symptoms is not corroborated by the 18 often normal findings and observations during routine mental health appointments 19 to include a frequently normal mood and affect; normal thought process with full 20 orientation; intact cognition with normal memory and concentration; and normal 1 behavior and functioning.” Tr. 27. “Contradiction with the medical record is a 2 sufficient basis for rejecting the claimant’s subjective testimony.” Carmickle, 533 3 F.3d at 1161 (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). And 4 as discussed above, substantial evidence supports this finding. As noted in detail 5 above, Plaintiff’s treatment notes reflect largely normal findings with respect to 6 Plaintiff’s attention span and concentration, cognition, thought process, memory, 7 and concentration. The ALJ thus reasonably found the medical evidence was 8 inconsistent with Plaintiff’s testimony that, among other things, “his conditions 9 affect his memory, understanding, [and] concentration … and that he is easily 10 confused.” Tr. 26. 11 Because the ALJ gave a valid reason, supported by substantial evidence, to 12 discount Plaintiff’s testimony, the Court need not address the balance of the ALJ’s 13 remaining reasons for discounting Plaintiff’s testimony. Any inclusion of 14 erroneous reasons was inconsequential and therefore harmless. See Carmickle, [15] 533 F.3d at 1162 . 16 C. Lay Witness Evidence 17 Plaintiff argues the ALJ erred by discounting the opinion of his partner. 18 ECF No. 8 at 18-20; see Tr. 467-74. The ALJ discounted the opinion on the same 19 ground used to discount the opinions of Mr. Wenger and Dr. Bowes. Citation. For [20] 1 the reasons discussed above, the ALJ necessarily did not err by discounting the 2 opinion on this ground. 3 D. Step Four 4 Plaintiff argues the ALJ erred by finding, at step four, that Plaintiff could 5 perform past relevant work. ECF No. 8 at 4. Defendant agrees the finding was 6 “not supported.” ECF No. 9 at 12. The error is harmless, however, as the ALJ 7 proceeded to step five and did not err in making findings at step five, as discussed 8 below. 9 E. Step Five 10 Plaintiff argues the ALJ erred at step five by relying on an “unreliable” 11 methodology employed by the vocational expert and by “failing to consider 12 contrary job numbers” submitted by Plaintiff after the hearing. ECF No. 8 at 5-6. 13 Neither argument is persuasive. 14 First, “[i]n accordance with Social Security Act regulations, an ALJ is 15 entitled to rely on a VE’s testimony to support a finding that the claimant can 16 perform occupations that exist in significant numbers in the national economy.” 17 Kilpatrick v. Kijakazi, 35 F.4th 1187, 1192 (9th Cir. 2022) (cleaned up). “Given 18 its inherent reliability, a qualified vocational expert’s testimony as to the number of 19 jobs existing in the national economy that a claimant can perform is ordinarily 20 sufficient by itself to support an ALJ’s step-five finding.” Ford v. Saul, 950 F.3d 1 1141, 1160 (9th Cir. 2020) (citation omitted). Because Plaintiff “does not identify 2 any evidence undermining the vocational expert’s testimony,” id., the Court rejects 3 Plaintiff’s first argument. 4 Second, Ninth Circuit precedent forecloses Plaintiff’s argument that the ALJ 5 erred by “refusing to consider claimant-supplied probative and significant evidence 6 showing the job numbers [provided by the VE] were inadequate.” ECF No. 8 at 8. 7 In Kilpatrick v. Kijakazii, the Ninth Circuit declined to mandate a “categorical 8 obligation” for ALJs to “consider the conflicting information about job numbers 9 and resolve any conflicts.” 35 F.4th 1187, 1193 (9th Cir. 2022). Kilpatrick 10 clarified that while “an ALJ may not ignore significant probative evidence that 11 bears on the disability analysis,” competing job numbers are not per se significant 12 probative evidence. Id. 13 As in Kilpatrick, Plaintiff’s counsel submitted competing job numbers to the 14 ALJ after the hearing. Tr. 38-47. Yet “[Plaintiff’s] attorney did not replicate the 15 VE’s same methodology. It is thus not surprising that [Plaintiff’s] different 16 approach led to different results. And there is no basis to conclude that these 17 results qualified as significant probative evidence that the ALJ was required 18 specifically to address.” Kilpatrick, 35 F.4th at 1194 . As Defendant correctly 19 argues, see ECF No. 9 at 12 (arguing Plaintiff’s attorney “provides no evidence 20 that his alternative methods used to find job numbers are more reliable than the 1 expert’s), Plaintiff’s attorney has “no identified expertise in calculating job figures 2 in the national economy.” Kilpatrick, 35 F.4th at 1194 . 3 The ALJ thus did not err at step five. 4 CONCLUSION 5 Having reviewed the record and the ALJ’s findings, the Court concludes the 6 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. Plaintiff’s Brief, ECF No. 8, is DENIED. 9 2. Defendant’s Brief, ECF No. 9, is GRANTED. 10 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 11 The District Court Executive is directed to file this Order, provide copies to 12 counsel, and CLOSE THE FILE. 13 DATED August 22, 2025. 14 s/Mary K. Dimke MARY K. DIMKE 15 UNITED STATES DISTRICT JUDGE