Anschell v. Commissioner of Social Security

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — UNITED STATES DISTRICT COURT — 8 — WESTERN DISTRICT OF WASHINGTON AT TACOMA — 9 — 10 MICHELLE J. A., CASE NO. 3:25-CV-5172-DWC 11 Plaintiff, v. ORDER RE: SOCIAL SECURITY 12 DISABILITY APPEAL COMMISSIONER OF SOCIAL 13 SECURITY, 14 Defendant. 15 Plaintiff filed this action, pursuant to 42 U.S.C. § 405 (g), for judicial review of the denial 16 of her application for Disability Insurance Benefits (DIB). Pursuant to 28 U.S.C. § 636 (c), Fed. 17 R. Civ. P. 73, and Local Rule MJR 13, the parties have consented to proceed before the 18 undersigned. After considering the record, the Court finds no reversible error and affirms the 19 Commissioner’s decision to deny benefits. 20 I. BACKGROUND 21 Plaintiff applied for DIB on June 8, 2021. Administrative Record (AR) 18. Her alleged 22 date of disability onset is July 24, 2020. Id. An Administrative Law Judge (ALJ) held hearings 23 on Plaintiff’s claim on September 7, 2023 (AR 42–77), and April 3, 2024 (AR 78–126). On April — 24 — 1 29, 2024, the ALJ issued a written decision finding Plaintiff not disabled. AR 15–41. The 2 Appeals Council declined Plaintiff’s timely request for review, making the ALJ’s decision the 3 final agency action subject to judicial review. AR 1–7. On March 2, 2025, Plaintiff filed a 4 Complaint in this Court seeking judicial review of the ALJ’s decision. Dkt. 1. 5 II. STANDARD 6 Pursuant to 42 U.S.C. § 405 (g), this Court may set aside the Commissioner’s denial of 7 benefits if, and only if, the ALJ’s findings are based on legal error or not supported by 8 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211 , 1214 n.1 (9th 9 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 10 III. DISCUSSION 11 In her opening brief, Plaintiff argues (1) the transcript of her proceedings is deficient, (2) 12 the ALJ was biased, (3) the ALJ failed to properly develop the record, (4) the ALJ failed to 13 properly consider the medical opinions of Phyong Nguyen, MD, and (5) the ALJ failed to 14 properly consider her subjective symptom testimony. 15 A. Transcript 16 Plaintiff contends the record lacks a complete recording of the September 2023 hearing 17 held in this matter. Dkt. 7 at 4–5. At that hearing, after nearly an hour of testimony (AR 44–75), 18 the ALJ indicated she was having difficulties with her internet connection. See AR 75. The ALJ 19 indicated she did not hear Plaintiff’s response to one question (how long she could walk at one 20 time), asked Plaintiff to repeat that response, and then asked a follow-up question to Plaintiff’s 21 response. See AR 74–75. After Plaintiff responded, the ALJ indicated she “lost access” and that 22 the matter would require a supplemental hearing. See AR 75. That supplemental hearing was 23 held in April 2024. AR 78–126. — 24 — 1 Plaintiff argues the ALJ erred because the hearing transcript was purportedly incomplete 2 (contravening 20 C.F.R. § 404.951 (a)(1)) and because the ALJ referenced Plaintiff’s testimony at 3 the September 2023 hearing in the subsequent hearing and her decision. Dkt. 7 at 4–5. But 4 Plaintiff points to no specific deficiency in the September 2023 hearing transcript. There is no 5 indication the ALJ’s internet issues affected the audio recording or hearing transcript. Although 6 the ALJ indicated she could not hear two or three of Plaintiff’s responses, the transcript 7 nevertheless contains those responses. Further, there is no indication that the ALJ’s internet 8 issues affected the remaining thirty-two pages of testimony preceding those issues, so the ALJ 9 was free to reference that testimony at later hearings. 10 B. Duty to Develop Record 11 Plaintiff argues the ALJ failed to meet his burden of developing the record. Dkt. 17 at 2. 12 The ALJ “has an independent duty to fully and fairly develop the record,” Tonapetyan v. Halter, — 13 — 242 F.3d 1144, 1150 (9th Cir. 2001) (cleaned up), which “is triggered only when there is 14 ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 15 evidence,” Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (quoting Mayes v. Massanari, 276 16 F.3d 453 , 459–60 (9th Cir. 2001)). The duty to develop the record cannot shift the burden of 17 proving disability onto the ALJ, see Mayes, 276 F.3d at 460, and the Court generally cannot 18 impose procedural requirements beyond those reflected in the Commissioner’s regulations and 19 the relevant statutes, see Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 20 U.S. 519, 524 , 541–48 (1978). 21 Plaintiff bases her argument on a statement made by the ALJ at her second hearing: 22 I think I’m going to send [Plaintiff] out for a consultative examination. . . . This is such a different file. You’re so young, you know, to put you on benefits without 23 these things would be, I think, ill-advise[d] on my part particularly with your — 24 — 1 education level and your past work. So to have a fair assessment, I think that’s what we need. — 2 — AR 105. The ALJ wrote in her decision that “upon review of the entire file, and consideration of — 3 — the claimant's testimony at the hearing, the undersigned finds that the evidence is well developed — 4 — and any additional development of the case is unnecessary.” AR 18. — 5 — “[T]he decision to order a consultative examination in the first instance is itself — 6 — discretionary.” Kevin C. v. Comm’r of Soc. Sec., No. 2:24-CV-992, 2024 WL 5263719 , at *3, *3 — 7 — n.2 (W.D. Wash. Dec. 31, 2024) (citing 20 C.F.R. § 404 .1519a(b); Reed v. Massanari, 270 F.3d 8 838, 841 (9th Cir. 2001)). There is no requirement that the ALJ decide whether to order an — 9 — examination at the hearing, and Plaintiff identifies no legal source suggesting the ALJ’s — 10 — assessment of the adequacy of the evidence at that time is binding upon her. The ALJ admitted — 11 — nine exhibits at the second hearing (see AR 82) and received additional testimony. Under such — 12 — circumstances, the ALJ could rationally change her mind regarding the necessity of a — 13 — consultative examination. — 14 — Plaintiff has not identified any other deficiency in the record. To the contrary, the record — 15 — contained nearly three thousand pages of medical records and medical opinions from treating — 16 — sources and state agency adjudicators. Under such circumstances, there was no additional duty to — 17 — develop the record. See Ford, 950 F.3d at 1156 (“Given that the ALJ had years of Ford’s mental — 18 — health records and multiple opinions from non-examining psychiatrists to inform her decision, — 19 — this duty was not triggered.”). — 20 — C. ALJ Bias — 21 — Plaintiff argues the ALJ, in the stating Plaintiff was “so young” (AR 105, quoted in full in — 22 — the preceding section), displayed bias depriving her of due process and requiring assignment to a — 23 — different ALJ. Dkt. 7 at 5, 6. — 24 — 1 “[A]ctual bias must be shown to disqualify an [ALJ].” Bunnell v. Barnhart, 336 F.3d 2 1112, 1115 (9th Cir. 2003). Actual bias is a high bar—Plaintiff must show “the ALJ’s behavior, 3 in the context of the whole case, was ‘so extreme as to display clear inability to render fair 4 judgment.’” Rollins v. Massanari, 261 F.3d 853, 858 (9th Cir. 2001) (quoting Liteky v. United 5 States, 510 U.S. 540, 551 (1994)). “[O]pinions formed by the judge on the basis of facts 6 introduced or events occurring in the course of the current proceedings, or of prior proceedings, 7 do not constitute a basis for a bias or partiality motion unless they display a deep-seated 8 favoritism or antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555 . 9 Thus, a judicial predisposition only shows bias and prejudice if it goes “beyond what is normal 10 and acceptable” or is “wrongful or inappropriate.” Id. at 552 . The ALJ is presumed to have acted 11 in an unbiased manner. See Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). 12 The ALJ’s statement that Plaintiff was “so young” did not display a judicial 13 predisposition beyond that which is normal and acceptable. The ALJ is required to consider a 14 claimant’s age in determining whether there is work Plaintiff can perform. 20 C.F.R. §§ 15 404.1520(a)(4)(v), 404.1560(c)(1), 404.1563(a). Other regulations confirm the commonsense 16 intuition that age often provides important context in assessing medical evidence and vocational 17 ability. See, e.g., 20 C.F.R. §§ 404.1568 (d)(4) (different transferability of skills rules for persons 18 over 55); 404.1583(b) and 404.1584(b) (different rules for determining disability based on 19 blindness for different ages); 404.1594(b)(4)(ii) (“age is one key factor” in certain continuing 20 disability reviews); App. 1 to Subpart P, § 3.02(A)–(B) (different criteria for considering 21 respiratory disorders based on age); 4.00(G)(4)(a) (lymphedema appears “usually after age 35”); 22 12.00(H)(4) (intellectual disorder must develop before age 22). — 23 — — 24 — 1 These regulations, considered together, show age is a valid contextual consideration in 2 the disability process. Hence, a single remark at one hearing about Plaintiff’s age—which did not 3 appear to form any basis for the ultimate determination—does not reveal “a wrongful or 4 inappropriate” judicial predisposition going beyond that which is “normal and acceptable.” See 5 Liteky, 510 U.S. at 552 . Plaintiff has thus not rebutted the presumption that the ALJ was 6 unbiased. 7 D. Dr. Nguyen’s Medical Opinion 8 Dr. Nguyen submitted several statements in connection with Plaintiff’s claim. First, Dr. 9 Nguyen completed a form in March 2023 opining Plaintiff could not work for a 32-month period 10 but thereafter could work in a low-light environment. See AR 3142. Second, Dr. Nguyen opined 11 in January 2024 that Plaintiff could do no lifting for eight weeks. See AR 2750. Finally, in March 12 2024, Dr. Nguyen opined Plaintiff could lift less than 10 pounds and stand or walk less than two 13 hours, and that Plaintiff had several other environmental and postural limitations. See AR 2509– 14 11. 15 As the ALJ noted, the portion of Dr. Nguyen’s first statement opining Plaintiff could not 16 work is a statement on an issue reserved to the Commissioner for which the ALJ was not 17 required to articulate his analysis. See AR 30; 20 C.F.R. § 404 .1520b(c)(3)(i) (“[S]tatements that 18 [a claimant is or is] not disabled . . . or able to perform regular or continuing work” are 19 “statements on issues reserved to the Commissioner,” which the ALJ “will not provide any 20 analysis about.”). 21 Because Dr. Nguyen’s second statement about no lifting for eight months opined only a 22 short-term limitation, it has no bearing upon the ALJ’s RFC determination. See SSR 23-1p 23 (“[W]e will not include limitations in the RFC assessment that completely resolve, or that we — 24 — 1 expect to completely resolve, within 12 months.”). For that reason, any error in considering the 2 second statement is harmless, as a different assessment of that statement would not require a 3 different RFC formulation. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (error 4 harmless if “there remains substantial evidence supporting the ALJ’s decision and the error does 5 not negate the validity of the ALJ’s ultimate conclusion”). 6 Thus, Dr. Nguyen’s third statement opining limitations in walking, standing, lifting, and 7 environmental and postural areas and the portion of her first statement opining Plaintiff required 8 a low-light environment was the only medical opinion proffered by Dr. Nguyen that the ALJ was 9 required to consider and of which the ALJ’s improper consideration might constitute reversible 10 error. 11 For applications, like Plaintiff's, filed after March 27, 2017, ALJs need not “defer or give 12 any specific evidentiary weight, including controlling weight, to” particular medical opinions, 13 including those of treating or examining sources. See 20 C.F.R. §§ 404 .1520c(a), 416.920c(a). 14 Rather, ALJs must consider every medical opinion in the record and evaluate each opinion’s 15 persuasiveness, considering each opinion’s “supportability” and “consistency,” and, under some 16 circumstances, other factors. Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022); 20 C.F.R. §§ 17 404.1520c(b)–(c), 416.920c(b)–(c). Supportability concerns how a medical source supports a 18 medical opinion with relevant evidence, while consistency concerns how a medical opinion is 19 consistent with other evidence from medical and nonmedical sources. 20 C.F.R. §§ 20 404.1520c(c)(1), (c)(2); 416.920c(c)(1), (c)(2).1 — 21 — — 22 — 1 Plaintiff asserts that, because Dr. Nguyen was a treating source, her opinion must be given controlling weight if 23 supported and consistent with the objective medical evidence. Dkt. 7 at 8 (citing 20 C.F.R. § 404.1527 (d). But this argument relies upon the old regulations for considering medical opinions, which are inapplicable to her claim. See — 24 — 20 C.F.R. § 404 .1520c. 1 The ALJ considered Dr. Nguyen’s third statement, along with her statement that Plaintiff 2 would require a low-light environment, and found the opinions unpersuasive. See AR 30–31. 3 With respect to supportability, the ALJ noted Dr. Nguyen’s examinations of Plaintiff revealed no 4 mental or physical abnormalities. See AR 30. As the ALJ noted, Plaintiff was in no distress and 5 had a normal mood and thought process, and Dr. Nguyen had no objective findings related to 6 migraines or physical difficulties. Id. (citing AR 2589, 3149). The ALJ properly found Dr. 7 Nguyen’s opinion unsupported on this basis. See Stiffler v. O’Malley, 102 F.4th 1102, 1107 (9th 8 Cir. 2024) (affirming rejection of medical opinion that “included only conclusions regarding 9 functional limitations without any rationale for those conclusions” along with largely normal 10 mental status findings). 11 Further, the ALJ found the opinion inconsistent with normal physical examination results 12 in the record, which included findings of full strength, normal range of motion, intact sensation, 13 normal gait, and no focal neurological deficits. AR 30 (citing AR 411–12, 418, 436, 453, 636, 14 948, 962, 976, 1081, 1100–01, 1113, 2034, 2728, 3282). Such evidence is reasonably found 15 inconsistent with the severe physical limitations opined by Dr. Nguyen. Similarly, the ALJ cited 16 to numerous appointments where Plaintiff was in no apparent distress and noted a paucity of 17 objective evidence suggesting a need for a low-light environment. AR 30 (citations omitted). 18 This, too, was a reasonable basis on which the ALJ could find Dr. Nguyen’s opinion inconsistent 19 with the evidence of record. 20 In sum, the ALJ provided proper reasons for finding unpersuasive those portions of Dr. 21 Nguyen’s that she was required to address. — 22 — — 23 — — 24 — 1 E. Subjective Symptom Testimony 2 Plaintiff contends the ALJ erred in considering her testimony regarding her migraines, 3 depression, and anxiety. Dkt. 7 at 9–10. Where (as is the case here, see AR 26) the ALJ finds 4 Plaintiff has presented evidence of one or more impairments that could be reasonably expected to 5 cause her alleged symptoms and there is no affirmative evidence of malingering, the ALJ must 6 give specific, clear, and convincing reasons for discounting Plaintiff’s testimony. See Garrison v. 7 Colvin, 759 F.3d 995 , 1014–15 (9th Cir. 2014) (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th 8 Cir. 1996)). 9 With respect to Plaintiff’s migraines, Plaintiff testified her migraines prevented her from 10 attending work regularly, but the ALJ found this inconsistent with her course of treatment for her 11 migraines. See AR 26, 28. As the ALJ noted, Plaintiff indicated at appointments that her Nurtec 12 medication was effective and reduced the intensity and frequency of her migraines by more than 13 50%, and Plaintiff also indicated her prism glasses reduced the frequency of her migraines. See 14 AR 28 (citing AR 1657, 2054, 2067). The ALJ reasonably found such a course of treatment 15 inconsistent with allegations of persistent, debilitating migraines. See Wellington v. Berryhill, — 16 — 878 F.3d 867, 876 (9th Cir. 2017) (ALJ can consider improvement in discounting subjective 17 testimony); Smartt v. Kijakazi, 53 F.4th 489 , 498 (9th Cir. 2022) (“When objective medical 18 evidence in the record is inconsistent with the claimant’s subjective testimony, the ALJ may 19 indeed weigh it as undercutting such testimony.”) (emphasis in original). 20 With respect to Plaintiff’s depression and anxiety, the ALJ’s description of Plaintiff’s 21 testimony does not suggest she described specific symptoms related to these impairments except 22 that Plaintiff would struggle with conflict. See AR 26. Plaintiff similarly identifies no such 23 testimony, describing only some related test results. See Dkt. 7 at 9–10. — 24 — 1 Nevertheless, to the extent Plaintiff’s testimony regarding these impairments was 2 inconsistent with the RFC, the ALJ adequately considered such allegations. The ALJ found the 3 allegations inconsistent with “unremarkable findings, such as being alert, cooperative, and in no 4 acute distress with normal behavior, speech, dress, thought process, age-appropriate or grossly 5 intact memory, and good insight and judgment.” AR 26 (citations omitted). The ALJ could 6 reasonably find such evidence inconsistent with allegations of debilitating depression and 7 anxiety, as such evidence suggests that, whatever the extent of her impairments demonstrated by 8 the testing Plaintiff relies upon, the impairments did not have a significant effect on her 9 functioning. Plaintiff argues the ALJ improperly relied upon appointments where she “was not 10 suffering from severe symptoms” (Dkt. 7 at 9), but she cites no evidence demonstrating the 11 evidence relied upon by the ALJ was not reflective of her normal functioning, nor can the Court 12 find significant abnormal evidence demonstrating a significant effect on her functioning. 13 In sum, the ALJ provided specific, clear, and convincing reasons for rejecting Plaintiff’s 14 testimony regarding her migraines, depression, and anxiety. 15 IV. CONCLUSION 16 For the foregoing reasons, the Court hereby AFFIRMS Defendant’s decision denying 17 benefits. 18 Dated this 30th day of September, 2025. — 19 — A — 20 — David W. Christel United States Magistrate Judge — 21 — — 22 — — 23 — — 24 —