Gallagher v. Bisignano

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 10 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TIMOTHY GALLAGHER, No. 25-6801 D.C. No. Plaintiff - Appellant, 2:24-cv-00040-KLD v. MEMORANDUM* FRANK BISIGNANO, Commissioner of Social Security, Defendant - Appellee. Appeal from the United States District Court for the District of Montana Kathleen Louise DeSoto, Magistrate Judge, Presiding Submitted October 15, 2026** Missoula, Montana Before: TALLMAN, BRESS, and FORREST, Circuit Judges; Dissent by Judge BRESS Plaintiff-Appellant Timothy Gallagher suffered a traumatic brain injury that causes seizures and other neurological complications. After his injury, he worked * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). semi-skilled jobs, including as a convenience store clerk from 2015 to 2021. Gallagher appeals the district court’s affirmance of the administrative law judge’s (ALJ) denial of his application for supplemental social security income and social security disability insurance benefits. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We review the agency’s denial of benefits de novo for substantial evidence. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2020). In doing so, we consider the “entire record.” Id. Substantial-evidence review is not a demanding standard; it requires only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019). We must not “reweigh the evidence or substitute our judgment for that of the ALJ.” Ahearn, 988 F.3d at 1115. Gallagher raises four arguments. He first challenges the ALJ’s failure to discuss whether he is per se disabled based on epilepsy at step three of the agency’s “five-step sequential evaluation process” for determining disability. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The rest of Gallagher’s arguments concern the ALJ’s findings related to his residual functional capacity (RFC) at step four. 1. An ALJ need not directly discuss a claimant’s classification for a per se disability under step three so long as the evidence relevant to determining whether the claimant is disabled is discussed and evaluated. See Lewis v. Apfel, 236 F.3d 503, 2 25-6801 512–14 (9th Cir. 2001). Here, the ALJ did not directly discuss Gallagher’s epilepsy symptoms at step three, but the ALJ did discuss Gallagher’s seizure disorder in detail in reaching its decision. And the record does not establish that Gallagher satisfies the requirements for per se disability based on epilepsy. See 20 C.F.R. § Pt. 404. Subpt. P, App. 1 § 11.02. 2. Gallagher argues that the ALJ erred by discounting his subjective testimony about the severity, intensity, and limiting effect of his physical and neuro- cognitive conditions in assessing his RFC. Where objective medical evidence supports the claimant’s asserted symptoms, the ALJ may discount the claimant’s testimony concerning the severity or intensity of those symptoms only for clear and convincing reasons. Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022). The ALJ did so here. The ALJ found inconsistency between Gallagher’s testimony about the extent of his back problems and the objective medical findings, his conservative pain management, and his work history and job duties as a store clerk. This finding is supported by substantial evidence. The ALJ then acknowledged Gallagher’s history of seizures but rejected that seizures prevent him from working. The ALJ noted that Gallagher suffered only four seizures at work during his six years employed as a store clerk, even though 3 25-6801 Gallagher reported suffering “at least three to four [seizures] a year.”1 The ALJ also concluded that the record indicated Gallagher’s “medications have generally been good at controlling his seizures since the alleged onset date.” These findings are supported by evidence that a “reasonable mind might accept as adequate to support [the] conclusion.” Biestek, 587 U.S. at 103. For example, while Gallagher reported to a medical provider in December 2022 that he suffered “3 big seizures since December 2021,” the medical record identifies only two events in that period, one of which the treating provider indicated was likely “syncope and not a seizure” because no seizure activity was observed and Gallagher “woke up right away after being laid down to the floor.” Gallagher also reported during a routine medical appointment in May 2022 that he had not had a seizure for nearly eight months. This evidence reasonably supports the ALJ’s conclusion that the frequency of Gallagher’s seizures had dissipated where the medical records documented three seizures in 2019. Additionally, Gallagher reported to his doctor in December 2022 that he was taking his medications and that they were helping him. Finally, the ALJ found no persuasive evidence that Gallagher’s neurocognitive condition had deteriorated since he worked as a store clerk and 1 The ALJ noted that Gallagher was fired from his store clerk position because of his seizures. However, the evidence in the record is Gallagher’s testimony that he was fired from this position because he took too much time off and did not file the correct paperwork related to a back injury. 4 25-6801 correctly noted that Gallagher had “not sought any additional treatment” for this condition. The ALJ noted that Gallagher was not terminated from his store clerk job due to his neurological condition and that his reported daily activities were inconsistent with the claim that he cannot perform any work. Again, these conclusions are supported by evidence in the record. Therefore, we do not disturb the ALJ’s treatment of Gallagher’s symptom testimony. 3. Gallagher also challenges the ALJ’s rejection of three medical opinions to the extent they concluded that Gallagher is limited to performing unskilled work. In assessing the persuasiveness of a medical opinion, the agency must primarily focus on how well the opinion is supported by objective medical findings and how consistent the opinion is with the other medical and nonmedical evidence in the record. Woods v. Kijakazi, 32 F.4th 785, 791–92 (9th Cir. 2022). The ALJ found problems on both metrics because evidence showed that Gallagher was able to perform semi-skilled work for many years despite his seizure disorder and related neurological symptoms and the medical evidence did not indicate that Gallagher’s condition had declined since he worked as a store clerk. Indeed, one of the relevant medical sources reported that Gallagher did “surprising well” on cognitive testing “in view of what he described” and noted that Gallagher’s “history would seem to imply that he is capable of gainful activity.” Again, we find no basis to disrupt the ALJ’s assessment of the evidence. 5 25-6801  4. Finally, Gallagher challenges the ALJ’s conclusion that he remains capable of working as a store clerk. For reasons already discussed, this argument fails. While Gallagher’s conditions warrant limiting his RFC in both exertion and skill, substantial evidence, including his prior work history, supports the ALJ’s conclusion that Gallagher remains capable of working as a store clerk. AFFIRMED. 6 25-6801  FILED Gallagher v. Bisignano, 25-6801 NOV 10 2026 MOLLY C. DWYER, CLERK BRESS, Circuit Judge, dissenting: U.S. COURT OF APPEALS I would have remanded this matter to the ALJ because I cannot discern sufficient support for the ALJ’s reasoning as to Gallagher’s seizures, which affects the ALJ’s residual functional capacity (RFC) determination. I do not read the ALJ to be discounting Gallagher’s self-reports about the frequency of his seizures. Instead, the ALJ appeared to base his findings on the fact that (1) Gallagher’s seizures have not regularly occurred at work, and (2) Gallagher’s “seizure occurrence has decreased significantly since the alleged onset date.” The first basis appears unsupported because the record does not establish the trigger for Gallagher’s seizures. Absent a more verifiable cause for Gallagher’s seizures, it is not clear that the place where the seizures occurred (at work versus elsewhere) should have a bearing on Gallagher’s RFC. Adding to the confusion is the ALJ’s unelaborated acknowledgment that, according to Gallagher, he was asked to resign as a store clerk in part because of his seizures. The majority cites Gallagher’s testimony that he was fired from the store clerk position because he did not file correct paperwork. But it is not apparent the ALJ relied on this testimony about paperwork, instead noting that Gallagher “was asked to resign due to his back pain and seizure issues.” And if we are considering Gallagher’s testimony, he also 1 testified that he was asked to leave his prior job at a hair salon because of his seizures. Gallagher’s testimony thus does not clear up issues. As to the decrease in seizures, it is again unclear if this is supported in the record. If the ALJ did not discount Gallagher’s self-report of three to five seizures per year, it is not apparent they would be decreasing over time. Further, the record provides examples of at least seven documented seizures (possibly eight since the October 2022 incident was not ruled out as a seizure) spanning June 2019 to October 2022. With two (possibly three) seizures occurring after the alleged onset date (July 2021), this does not seem like a meaningful reduction in the frequency of seizures. At the very least, I have difficulty seeing how the record reflects a “significant[]” decrease in seizure occurrence, as the ALJ found. Although there is some evidence that medication may help Gallagher’s seizures, it is not apparent that the medical records support the ALJ’s finding that the “medications have generally been good at controlling his seizures since the alleged onset date.” Due to these uncertainties in the ALJ’s decision and my difficulty discerning the basis for the ALJ’s reasoning, I would have remanded for further proceedings before the ALJ, so that the RFC determination can be made based on a firmer assessment of the nature and extent of Gallagher’s seizures. 2