Brock Peters v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 24, 2022
• Docket: 21-35277
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BROCK A. PETERS, No. 21-35277

Plaintiff-Appellant, D.C. No. 3:20-cv-05620-BAT

v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Brian Tsuchida, Magistrate Judge, Presiding

Submitted March 11, 2022** Portland, Oregon

Before: GRABER, BEA, and M. SMITH, Circuit Judges.

Brock Peters (“Peters”) appeals the district court’s affirmance of the final

decision of the Commissioner of the Social Security Administration

(“Commissioner”), which denied Peters’s application for supplemental security

* 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). income (“SSI”). For the following reasons, we affirm.

1. Peters first argues that the ALJ erred in evaluating the medical opinions of

his examining psychologist and a certified physician assistant. Concerning the

opinion of the examining psychologist, the ALJ gave “some weight” to this opinion

“as far as the limits to simple, routine tasks” but concluded that the opinion was

“otherwise vague, and extends little beyond [Peters’] self-reporting.” These are

specific and legitimate reasons to discount an examining physician’s opinion. See

Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Morgan v. Comm’r of Soc.

Sec. Admin., 169 F.3d 595, 602 (9th Cir. 2002). Concerning the opinion of the

certified physician assistant, under the pre-March 2017 version of 20 C.F.R. §

404.1513 that applied to Peters’s application, a certified physician assistant was not

an “acceptable medical source.” Therefore, the ALJ need only give germane reasons

for discounting this testimony. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.

2012). The ALJ discounted the certified physician assistant’s testimony, because it

was a check-off report that lacked explanation, was inconsistent with Peters’s self-

reporting to the certified physician assistant, and was inconsistent with Peters’s other

testimony of work. These are permissible “germane reasons” to discount the

opinion. Id. at 1111–12; Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (per

curiam).

2. Peters next argues that the ALJ erred in discounting his subjective

2 complaints in light of his activity level and medical records. An ALJ is permitted to

rely on daily activities that contradict a claimant’s testimony in discounting

testimony by a claimant of his subjective complaints. Smith v. Kijakazi, 14 F.4th

1108, 1114 (9th Cir. 2021). The ALJ permissibly relied on evidence in the record

that Peters reported doing “odd jobs” in January 2017 and performing work on the

property where he lived in exchange for rent in September 2017. Moreover, the ALJ

properly cited medical records demonstrating that, when Peters sought medical

treatment for his claimed ailments, he responded well to treatment. “[E]vidence of

medical treatment successfully relieving symptoms can undermine a claim of

disability.” Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017).

3. Peters also argues that the ALJ erred in discounting the lay testimony of

his partner of ten years, and in failing to discuss the lay testimony of three social

workers. To discount lay testimony, an ALJ must cite germane reasons for doing

so. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Concerning Peters’s

partner’s testimony, the ALJ noted that “the severity of the symptoms alleged is not

entirely consistent with the medical evidence of record.” This is an acceptable

reason to discount lay testimony, Lewis v. Apfel, 236 F.3d 503, 511–12 (9th Cir.

2001), and this reason is supported by substantial evidence. Concerning the lay

testimony of the three social workers that the ALJ did not discuss, each social worker

interacted with Peters on only a single occasion in helping Peters complete his

3 disability applications. Any error in failing to discuss the social workers’

observations is harmless because their very limited observations are consistent with

the ALJ’s finding as to Peters’s residual functional capacity (“RFC”). See Molina,

674 F.3d at 1122 (concluding that the ALJ’s error in rejecting lay testimony was

harmless).

4. Finally, Peters argues that because the ALJ erred in evaluating the medical

evidence, discrediting Peters’s testimony, and discrediting lay testimony, the ALJ

necessarily committed error in determining Peters’s RFC. However, for all the

reasons noted above, because the ALJ permissibly evaluated all of the evidence in

the record in determining Peters’s RFC, Peters’s derivative challenge fails.

AFFIRMED