Bulmaro O. v. Frank Bisignano, Commissioner of Social Security

— 1 — FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Jan 05, 2026 — 3 — SEAN F. MCAVOY, CLERK — 4 — 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 BULMARO O.,1 No. 1:25-CV-03011-MKD 8 Plaintiff, ORDER AFFIRMING DECISION OF THE COMMISSIONER 9 v. ECF Nos. 8, 12 10 FRANK BISIGNANO, COMMISSIONER OF SOCIAL 11 SECURITY, 12 Defendant. 13 Before the Court are the parties’ briefs. ECF Nos. 8, 12. D. James Tree 14 represents Plaintiff. Special Assistant United States Attorney Michael Mullen 15 represents Defendant. The Court, having reviewed the administrative record and 16 the parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 affirms the Commissioner’s decision. — 18 — 19 1 To protect the privacy of plaintiffs in social security cases, the Court identifies 20 them by only their first names and the initial of their last names. See LCivR 5.2(c). — 21 — 1 JURISDICTION 2 On November 19, 2013, Plaintiff applied for Title II disability insurance 3 benefits, alleging a disability onset date of March 23, 2012. Tr. 71, 176-80, 546. 4 The application was denied initially and on reconsideration. Tr. 98-104, 106-10. 5 Plaintiff appeared before an administrative law judge (ALJ) on January 26, 2016. 6 Tr. 42-70. On February 26, 2016, the ALJ denied Plaintiff’s claim. Tr. 19-41. 7 This Court subsequently remanded the matter on February 21, 2018. Tr. 647-48. 8 The ALJ held a second hearing on June 10, 2020. Tr. 568-94. On June 22, 2020, 9 the ALJ denied Plaintiff’s claim. Tr. 540-67. This Court again remanded the 10 matter on February 25, 2022. Tr. 1337-64. The ALJ held hearings on January 2, 11 2024, August 26, 2024, and November 4, 2024. Tr. 1231-96. On November 8, 12 2024, the ALJ denied Plaintiff’s claim. Tr. 1204-30. The ALJ’s decision 13 following this Court’s prior remand became the Commissioner’s final decision for 14 purposes of judicial review. 20 C.F.R. § 416.1484 . Plaintiff appealed this decision 15 on January 29, 2025. ECF No. 1. The Court has jurisdiction over this case 16 pursuant to 42 U.S.C. § 1383 (c)(3). 17 STANDARD OF REVIEW 18 A district court’s review of a final decision of the Commissioner of Social 19 Security is governed by 42 U.S.C. § 405 (g). The scope of review under § 405(g) is 20 limited; the Commissioner’s decision will be disturbed “only if it is not supported — 21 — 1 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153 , 2 1158 (9th Cir. 2012) (citations omitted). “Substantial evidence” means “relevant 3 evidence [that] a reasonable mind might accept as adequate to support a 4 conclusion.” Id. at 1159 (quotation marks and citation omitted). Stated 5 differently, substantial evidence equates to “more than a mere scintilla[,] but less 6 than a preponderance.” Id. (quotation marks and citation omitted). In determining 7 whether the standard has been satisfied, a reviewing court must consider the entire 8 record as a whole rather than searching for supporting evidence in isolation. Id. 9 In reviewing a denial of benefits, a district court may not substitute its 10 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152 , 11 1156 (9th Cir. 2001), as amended on reh’g (Aug. 9, 2001). If the evidence in the 12 record “is susceptible to more than one rational interpretation, [the court] must 13 uphold the ALJ’s findings if they are supported by inferences reasonably drawn 14 from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), 15 superseded on other grounds by 20 C.F.R. §§ 404.1502 (a), 416.902(a) (citation 16 omitted). Further, a district court “may not reverse an ALJ’s decision on account 17 of an error that is harmless.” Id. (citation omitted). An error is harmless “where it 18 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 19 (quotation marks and citation omitted). The party appealing the ALJ’s decision — 20 — — 21 — 1 generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, — 2 — 556 U.S. 396, 409-10 (2009). 3 FIVE-STEP EVALUATION PROCESS 4 A claimant must satisfy two conditions to be considered “disabled” within 5 the meaning of the Social Security Act. First, the claimant must be “unable to 6 engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which 8 has lasted or can be expected to last for a continuous period of not less than twelve 9 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 10 “of such severity that he is not only unable to do his previous work[,] but cannot, 11 considering his age, education, and work experience, engage in any other kind of 12 substantial gainful work which exists in the national economy.” 42 U.S.C. § 13 1382c(a)(3)(B). 14 The Commissioner has established a five-step sequential analysis to 15 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 16 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 17 activity. 20 C.F.R. § 416.920 (a)(4)(i). If the claimant is engaged in “substantial 18 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 19 C.F.R. § 416.920 (b). — 20 — — 21 — 1 If the claimant is not engaged in substantial gainful activity, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. § 416.920 (a)(4)(ii). If the claimant suffers from 4 “any impairment or combination of impairments which significantly limits [his or 5 her] physical or mental ability to do basic work activities,” the analysis proceeds to 6 step three. 20 C.F.R. § 416.920 (c). If the claimant’s impairment does not satisfy 7 this severity threshold, however, the Commissioner must find that the claimant is 8 not disabled. Id. 9 At step three, the Commissioner compares the claimant’s impairment to 10 severe impairments recognized by the Commissioner to be so severe as to preclude 11 a person from engaging in substantial gainful activity. 20 C.F.R. § 12 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 13 enumerated impairments, the Commissioner must find the claimant disabled and 14 award benefits. 20 C.F.R. § 416.920 (d). 15 If the severity of the claimant’s impairment does not meet or exceed the 16 severity of the enumerated impairments, the Commissioner must pause to assess 17 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 18 defined generally as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 20 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. — 21 — 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in 3 the past (past relevant work). 20 C.F.R. § 416.920 (a)(4)(iv). If the claimant is 4 capable of performing past relevant work, the Commissioner must find that the 5 claimant is not disabled. 20 C.F.R. § 416.920 (f). If the claimant is incapable of 6 performing such work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. — 9 — 20 C.F.R. § 416.920 (a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 past work experience. Id. If the claimant is capable of adjusting to other work, the 12 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 13 416.920(g)(1). If the claimant is not capable of adjusting to other work, the 14 analysis concludes with a finding that the claimant is disabled and is therefore 15 entitled to benefits. Id. 16 The claimant bears the burden of proof at steps one through four above. 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 18 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 19 capable of performing other work; and (2) such work “exists in significant — 20 — — 21 — 1 numbers in the national economy.” 20 C.F.R. § 416.960 (c)(2); Beltran v. Astrue, — 2 — 700 F.3d 386, 389 (9th Cir. 2012). 3 ALJ’S FINDINGS 4 At step one of the sequential evaluation process, the ALJ found Plaintiff had 5 not engaged in substantial gainful activity during the period from March 23, 2012, 6 the alleged onset date, through September 30, 2013, his date last insured. Tr. 1213. 7 At step two, the ALJ found that, through the date last insured, Plaintiff had 8 the following severe impairment: chronic myelogenous leukemia. Tr. 1213. 9 At step three, the ALJ found that, through the date last insured, Plaintiff did 10 have an impairment or combination of impairments that meets or medically equals 11 the severity of a listed impairment. Tr. 1214. 12 The ALJ then concluded that Plaintiff had, through the date last insured, the 13 RFC to perform light work with the following limitations: “[H]e could frequently 14 stoop, kneel, crouch, crawl, and climb ramps or stairs. He could occasionally climb 15 ladders, ropes, or scaffolds. He should avoid concentrated exposure to extreme 16 temperatures, and hazards such as unprotected heights.” Tr. 1214. 17 At step four, the ALJ found Plaintiff was unable to perform past relevant 18 work through the date last insured. Tr. 1218. At step five, the ALJ found that, 19 through the date last insured, considering Plaintiff’s age, education, work 20 experience, RFC, and testimony from the vocational expert, there were jobs that — 21 — 1 existed in significant numbers in the national economy that Plaintiff could perform, 2 to include marking clerk, cafeteria attendant, and housekeeper. Tr. 1219. 3 Therefore, the ALJ concluded Plaintiff was not under a disability at any time from 4 March 23, 2012, through September 30, 2013. Tr. 1219. 5 ISSUES 6 Plaintiff seeks judicial review of the Commissioner’s final decision denying 7 him disability insurance benefits under Title II of the Social Security Act. Plaintiff 8 raises the following issues for review: 9 1. Whether the ALJ properly assed the medical opinion evidence; and 10 2. Whether the ALJ properly assessed Plaintiff’s testimony. 11 ECF No. 8 at 2. 12 DISCUSSION 13 A. Medical Opinion Evidence 14 Because Plaintiff filed his application before March 27, 2017, the ALJ was 15 required to generally give a treating doctor’s opinion greater weight than an 16 examining doctor’s opinion, and an examining doctor’s opinion greater weight 17 than a non-examining doctor’s opinion. Garrison v. Colvin, 759 F.3d 995 , 1012 18 (9th Cir. 2014). The ALJ may only reject the contradicted opinion of a treating or 19 examining doctor by giving “specific and legitimate” reasons. Revels v. Berryhill, — 20 — 874 F.3d 648, 654 (9th Cir. 2017). — 21 — 1 Plaintiff argues the ALJ improperly assessed two sets of medical opinions. 2 ECF No. 8 at 7-12. 3 1. Dr. Kojouri 4 On July 19, 2013, Dr. Kojouri opined that Plaintiff’s condition limited his 5 ability to work, look for work, or prepare for work, and described any specific 6 limitations as “unable to lift heavy objects/work long hours.” Tr. 866. As to 7 limitations with lifting and carrying, Dr. Kojouri opined that Plaintiff was limited 8 to sedentary work. Tr. 867. On August 6, 2013, Dr. Kojouri again opined that 9 Plaintiff’s condition limited his ability to work, look for work, or prepare for work, 10 and in the section of the form where he was asked to describe any specific limits in 11 ability to work, Dr. Kojouri wrote Plaintiff should “avoid lifting heavy objects, 12 standing for long periods of time”; and he indicated Plaintiff should be limited to 13 zero hours of work, defined on the form as “inability to participate.” Tr. 862. As 14 to limitations with lifting and carrying, Dr. Kojouri opined that Plaintiff was 15 limited to light work. Tr. 863. The ALJ gave “little weight” to these opinions. Tr. 16 1216. 17 The ALJ first discounted the opinions on the ground “they appear to suggest 18 significantly different level of functioning in just a period of one month.” Tr. 19 1216. This finding is legally sound, see Morgan v. Comm’r of Soc. Sec. Admin., — 20 — 169 F.3d 595, 603 (9th Cir. 1999) (noting “internal inconsistencies within … and — 21 — 1 between” doctors’ opinions “constitute relevant evidence”), and supported by 2 substantial evidence, compare Tr. 867 (limiting Plaintiff to sedentary work in July 3 2013), with Tr. 863 (limiting Plaintiff to light work in August 2013). 4 The ALJ next discounted the opinions on the ground they “use terms, such 5 as ‘heavy objects, long hours, long periods, and regular work,’ which are not 6 defined in the regulations or by policy.” Tr. 1216. This finding is also legally 7 sound, as the ALJ may discount opinions that are vague. See Ford v. Saul, 950 8 F.3d 1141, 1156 (9th Cir. 2020) (“Here, the ALJ found that Dr. Zipperman’s 9 descriptions of Ford’s ability to perform in the workplace as ‘limited’ or ‘fair’ were 10 not useful because they failed to specify Ford’s functional limits. Therefore, the 11 ALJ could reasonably conclude these characterizations were inadequate for 12 determining RFC.”). 13 Because the ALJ gave at least two valid reasons for discounting these 14 opinions, the Court need not address the balance of the ALJ’s stated reasons for 15 discounting them. Any inclusion of erroneous reasons was inconsequential and 16 therefore harmless. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155 , 1162 17 (9th Cir. 2008). 18 Plaintiff also argues the ALJ erred by discounting Dr. Kojouri’s October 19 2015 opinion. ECF No. 8 at 10-11. The ALJ discounted this and later opinions on 20 the ground they were offered “after the expiration of the date last insured” and — 21 — 1 consequently “do not reflect [Plaintiff’s] level of functioning during the period 2 under review.” Tr. 1216. Although the ALJ may consider medical opinions 3 generated after the date last insured, see Smith v. Bowen, 849 F.2d 1222 , 1225-26 4 (9th Cir. 1988), such opinions are entitled to less weight than opinions rendered 5 during the period at issue, see Macri v. Chater, 93 F.3d 540 , 545 (9th Cir. 1996) 6 (“The opinion of a psychiatrist who examines the claimant after the expiration of 7 his disability insured status, however, is entitled to less weight than the opinion of 8 a psychiatrist who completed a contemporaneous exam.”). 9 The ALJ accordingly did not err by discounting Dr. Kojouri’s opinions. 10 2. LMHC Pietsch 11 Mr. Pietsch, Plaintiff’s treating mental health counselor, opined, among 12 other things, that Plaintiff had a series of severe and marked limitations, would be 13 off-task over 30% of the time during a 40-hour workweek, and would miss at least 14 four days per month if attempting to work a 40-hour workweek. Tr. 409-11. The 15 ALJ gave this opinion “little weight.” Tr. 1217. 16 The ALJ discounted this opinion “for the reasons stated above.” Tr. 1217. 17 Plaintiff contends “it is not clear what ‘reasons’ he is referring to, nor how any 18 previously-given reasons applied to Mr. Pietsch’s opinion specifically.” ECF No. 19 8 at 12. However, in the two paragraphs immediately preceding the ALJ’s 20 discussion of Mr. Pietsch’s opinion, the ALJ evaluated the opinions of a — 21 — 1 psychological examiner and the state agency psychological consultants, who, like 2 Mr. Pietsch, assessed Plaintiff’s psychological impairments. Tr. 1217. 3 In crediting the opinion of the psychological examiner, the ALJ noted that 4 the opinion was “consistent with [Plaintiff’s] application for disability at the time, 5 which did not include any allegation of a mental impairment.” Tr. 1217. In 6 crediting the state agency psychological consultants, who opined that Plaintiff did 7 not have a severe mental health impairment during the period at issue, the ALJ 8 found that evidence reviewed “showed normal mood and effect [sic], normal 9 cognitive function, inappropriate insight and judgment upon mental status 10 evaluations save for reports of anxiety in the context of his cancer diagnosis, and 11 no allegation of a disabling mental impairment during the relevant period.” Tr. 12 1217. The ALJ noted that “Plaintiff’s first report of any problems with his mental 13 health to a treating provider appears to have been in August 2015, and his primary 14 care provider prescribed him Trazodone for sleep.” Tr. 1217. The Court thus 15 “reasonably” may “discern[],” Molina, 674 F.3d at 1121 (quotation marks and 16 citation omitted), that “for the reasons stated above” refers to these preceding two 17 paragraphs. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (“As a 18 reviewing court, we are not deprived of our faculties for drawing specific and 19 legitimate inferences from the ALJ’s opinion.”). Plaintiff offers no further 20 argument and thus fails to show the ALJ committed harmful legal error. See — 21 — 1 Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (citing Shinseki v. Sanders, — 2 — 556 U.S. 396, 407-09 (2009)) (holding that the party challenging an administrative 3 decision bears the burden of proving harmful error). 4 B. Plaintiff’s Testimony 5 Plaintiff faults the ALJ for failing to rely on reasons that were clear and 6 convincing in discrediting his symptom claims. ECF No. 8 at 12-14. An ALJ 7 engages in a two-step analysis to determine whether to discount a claimant’s 8 testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 1119029 , at *2 9 (Mar. 16, 2016). “First, the ALJ must determine whether there is objective 10 medical evidence of an underlying impairment which could reasonably be 11 expected to produce the pain or other symptoms alleged.” Molina, 674 F.3d at 12 1112 (quotation marks and citation omitted). “The claimant is not required to 13 show that [the claimant’s] impairment could reasonably be expected to cause the 14 severity of the symptom [the claimant] has alleged; [the claimant] need only show 15 that it could reasonably have caused some degree of the symptom.” Vasquez v. 16 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quotation marks and citation omitted). 17 Second, “[i]f the claimant meets the first test and there is no evidence of 18 malingering, the ALJ can only reject the claimant’s testimony about the severity of 19 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 20 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation and — 21 — 1 footnote omitted). General findings are insufficient; rather, the ALJ must identify 2 what symptom claims are being discounted and what evidence undermines these 3 claims. Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as 4 amended (Apr. 9, 1996)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) 5 (requiring the ALJ to sufficiently explain why it discounted claimant’s symptom 6 claims). “The clear and convincing [evidence] standard is the most demanding 7 required in Social Security cases.” Garrison, 759 F.3d at 1015 (quoting Moore v. 8 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 9 Factors to be considered in evaluating the intensity, persistence, and limiting 10 effects of a claimant’s symptoms include: (1) daily activities; (2) the location, 11 duration, frequency, and intensity of pain or other symptoms; (3) factors that 12 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 13 side effects of any medication an individual takes or has taken to alleviate pain or 14 other symptoms; (5) treatment, other than medication, an individual receives or has 15 received for relief of pain or other symptoms; (6) any measures other than 16 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 17 any other factors concerning an individual’s functional limitations and restrictions 18 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029 , at *7; 20 C.F.R. § 19 416.929(c). The ALJ is instructed to “consider all of the evidence in an — 20 — — 21 — 1 individual’s record,” to “determine how symptoms limit ability to perform work2 related activities.” SSR 16-3p, 2016 WL 1119029 , at *2. 3 The ALJ found that Plaintiff’s medically determinable impairments could 4 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 5 statements concerning the intensity, persistence, and limiting effects of her 6 symptoms were not entirely consistent with the evidence. Tr. 1215. 7 The ALJ discounted Plaintiff’s testimony as inconsistent with Plaintiff’s 8 reports of “doing well with treatment during the relevant period” and the overall 9 medical record. Tr. 1215. These are legally valid reasons to discount Plaintiff’s 10 testimony. See Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) 11 (“[E]vidence of medical treatment successfully relieving symptoms can undermine 12 a claim of disability.”) (citing 20 C.F.R. §§ 404 .1520a(c)(1), 416.920a(c)(1)); 13 Carmickle, 533 F.3d at 1161 (“Contradiction with the medical record is a sufficient 14 basis for rejecting the claimant’s subjective testimony.”) (citing Johnson v. 15 Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)). Substantial evidence supports both 16 grounds. See, e.g., Tr. 321 (November 25, 2013, treatment note indicating Plaintiff 17 is “doing very well and denies any complaints. He is tolerating Sprycel very well, 18 with no side effects, and is very compliant with it.”); Tr. 319 (February 24, 2014, 19 treatment note indicating “[t]oday reveals a healthy and strong middle-aged man, 20 in no discomfort.”); Tr. 402 (September 25, 2015, treatment note indicating — 21 — 1 Plaintiff was “treated with dasatinib 100 mg daily from Januay 2013 through June 2 2015” and “maintained molecular remission on desatinib”). The ALJ thus 3 reasonably relied on these grounds to discount Plaintiff’s testimony. 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. 12, 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 January 5, 2026. 14 s/Mary K. Dimke MARY K. DIMKE 15 UNITED STATES DISTRICT JUDGE — 16 — — 17 — — 18 — — 19 — — 20 — — 21 —