Daniel Szmania v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 19, 2023
• Docket: 21-36053
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIEL G. SZMANIA, No. 21-36053

Plaintiff-Appellant, D.C. No. 3:20-cv-06228-MLP

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

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Michelle L. Peterson, Magistrate Judge, Presiding

Submitted September 19, 2023**

Before: D. NELSON, O’SCANNLAIN, and KLEINFELD, Circuit Judges.

Daniel G. Szmania appeals pro se from the district court’s judgment

affirming the Commissioner of Social Security’s decision denying his application

for disability insurance benefits under Title II of the Social Security Act. We have

jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo,

* 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). Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.

We reject Szmania’s contention that the ALJ was not properly appointed

under Article II, Section 2, Clause 2 of the United States Constitution, pursuant to

Lucia v. S.E.C., 138 S. Ct. 2044 (2018), where Szmania does not dispute that the

Commissioner ratified the ALJ’s appointment prior to Szmania’s hearing. See

Carr v. Saul, 141 S. Ct. 1352, 1357 (2021) (establishing that the Commissioner

preemptively resolved any Appointments Clause issues by ratifying the

appointments of all SSA ALJs on July 16, 2018).

Substantial evidence supports the ALJ’s determination that Szmania did not

have a severe impairment or combination of impairments prior to his date last

insured. See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The ALJ did

not ignore impairments, and substantial evidence supports the ALJ’s determination

that several of Szmania’s conditions were not medically determinable impairments

during the period at issue. See Ukolov v. Barnhart, 420 F.3d 1002, 1005–06 (9th

Cir. 2005) (finding that in the absence of objective diagnostic findings, claimant

did not establish a medically determinable impairment).

The ALJ provided clear and convincing reasons to discount Szmania’s

subjective allegations as inconsistent with Szmania’s medical record and work

history. See Ahearn v. Saul, 988 F.3d 1111, 1117 (9th Cir. 2021) (concluding that

claimant’s employment history undermined claim of longstanding impairment);

2 21-36053 Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008)

(“Contradiction with the medical record is a sufficient basis for rejecting the

claimant’s subjective testimony.”); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th

Cir. 2008) (finding that inconsistent symptom reporting undermined claimant’s

testimony).

The ALJ provided specific and legitimate reasons to reject opinions from

treating psychologist Cynthia Parker and several consulting physicians because

they were issued several years after Szmania’s date last insured, they do not

address Szmania’s level of functioning during the relevant period, and the record

lacks evidence of functional impairment during Szmania’s insured period. See

Ford v. Saul, 950 F.3d 1141, 1154, 1156 (9th Cir. 2020) (holding that an ALJ may

reject an opinion as “inadequately supported by clinical findings” or because it

does not “provide useful statements” as to the claimant’s degree of limitation

(citation and internal quotation marks omitted)). The ALJ did not err in evaluating

the opinion of Dr. J.D. Fitterer, a nonexamining medical advisor, where the ALJ

accepted Dr. Fitterer’s assessment of insufficient evidence as consistent with the

record and correctly observed that Dr. Fitterer did not express an opinion as to

Szmania’s functional ability. See id.

The ALJ provided specific, valid reasons to assign little weight to the

Department of Veterans Affairs 2017 disability rating because it did not address

3 21-36053 Szmania’s functional ability during the relevant period; it was based on exams that

began several years after Szmania’s date last insured; and although his conditions’

connection to his military service implied continuity of symptoms, this implication

was inconsistent with Szmania’s lengthy periods of employment after his military

service and with the record evidence from the period at issue. See Berry v. Astrue,

622 F.3d 1228, 1236 (9th Cir. 2010) (concluding that the ALJ properly discounted

VA disability rating as inconsistent with the record).

The ALJ provided a germane reason to discount a lay witness statement

from Szmania’s girlfriend because it lacked information concerning the relevant

period. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.

2009) (establishing that an ALJ must provide germane reasons to discount lay

witness evidence).

The ALJ did not err by failing to develop the record. See Mayes v.

Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001) (explaining that a duty to

develop the record “is triggered only when there is ambiguous evidence or when

the record is inadequate to allow for proper evaluation of the evidence”).

Because the ALJ did not err at step two, and substantial evidence supports the

ALJ’s step two determination, the ALJ did not err by not proceeding to further

steps in the sequential analysis. See Ukolov, 420 F.3d at 1003 (“If a claimant is

found to be disabled or not disabled at any step in the sequence, there is no need to

4 21-36053 consider subsequent steps.” (citation and internal quotation marks omitted)).

Szmania’s request for a refund of monies paid into the Social Security

system is not properly before us. See 42 U.S.C. § 405(g).

AFFIRMED.

5 21-36053