FILED NOT FOR PUBLICATION DEC 6 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GINA S. KLOSTER, No. 23-35035
Plaintiff-Appellant, D.C. No. 3:22-cv-05087-DWC
v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington David W. Christel, Magistrate Judge, Presiding
Submitted December 4, 2023** Seattle, Washington
Before: N.R. SMITH, SANCHEZ, and MENDOZA, Circuit Judges.
* 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).
1 Social security claimant Gina Kloster appeals from the district court=s
decision, affirming the denial of her application for social security disability
insurance benefits. AWe review the district court=s order affirming the ALJ=s
denial of social security benefits de novo and reverse only if the ALJ=s decision
was not supported by substantial evidence in the record as a whole or if the ALJ
applied the wrong legal standard.@ Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th
Cir. 2021) (citations omitted). We have jurisdiction under 28 U.S.C. ' 1291, and
we affirm.
On appeal, Kloster argues that (1) 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017)
(codified at 20 C.F.R. pts. 404 & 416), colloquially known as the 2017 social
security regulations, are inconsistent with our precedent and unlawful; (2) the
ALJ=s residual-function-capacity determination and determination that Kloster was
not disabled is not supported by substantial evidence; and (3) the ALJ erred in
evaluating both the medical and nonmedical evidence, failing to properly consider
Kloster=s physical and mental impairments, symptom testimony, and the testimony
of her husband.
We decline to reach the merits of Kloster’s challenge to the 2017 social
security regulations because she lacks standing to raise this challenge. Kloster
2 does not allege any specific errors stemming from the ALJ=s application of the
revised social security regulations, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017)
(codified at 20 C.F.R. pts. 404 & 416). Kloster does not allege that the ALJ
improperly discounted one of her treating physicians’ opinions or another agency=s
prior medical determinations. Because neither Kloster’s challenge nor the ALJ’s
decision turns on the validity of the 2017 social security regulations, even a
favorable ruling on the merits would not redress Kloster’s alleged injury. See
Cath. League for Religious & C.R. v. City & Cnty. of San Francisco, 624 F.3d
1043, 1053 (9th Cir. 2010) (AStanding . . . requires redressability, that is, that it is
>likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.=@) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992)). She therefore lacks standing to challenge the 2017 regulations. See
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006) (AA plaintiff must
demonstrate standing for each claim he seeks to press.@); see also Jones v. L.A.
Cent. Plaza LLC, 74 F.4th 1053, 1058 (9th Cir. 2023) (“[A] jurisdictional issue
such as Article III standing may be raised sua sponte by the court at any time.@).
We conclude that the ALJ=s residual functional capacity determination that
Kloster was not disabled is supported by substantial evidenceCnamely Kloster=s
3 mobility, medical record from prior to the date of last insured, and the fact that
Kloster had stopped working for a non-impairment reason.
The ALJ noted that Kloster=s claimed mobility limitations were inconsistent
with her daily activities. See Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir.
2007) (considering whether the claimant engages in daily activities inconsistent
with the alleged symptoms). Specifically, Kloster administered insulin shots to
her mother, was on her feet for half the workday, cleaned, fed, shopped, and ran
errands for her mother, and took her mother to doctor=s appointments. In addition,
Kloster testified and indicated that she was able to do the laundry; prepare meals;
take care of her two dogs and two cats (including taking the animals on walks);
work on the computer for an hour daily; and do yardwork such as shoveling,
pulling weeds, pushing wheelbarrows, and watering the yard.
We are not persuaded by Kloster’s argument that the ALJ erred in evaluating
both the medical and nonmedical evidence and failed to properly consider her
physical and mental impairments. The ALJ relied on the medical evidence to
conclude that Kloster only Asporadically@ complained of lower back pain and
received minimal treatment prior to her date of last insured. See 20 C.F.R.
' 404.1529(c)(3)(iv)B(v); Smartt v. Kijakazi, 53 F.4th 489, 500 (9th Cir. 2022)
4 (holding that an ALJ may Aproperly discount[] [a claimant=s] subjective pain
testimony in light of [the claimant=s] generally conservative treatment plan@).
Moreover, Kloster forfeited her argument that the ALJ erred in deciding that
Kloster=s mental health impairments were non-severe, because she did not raise
this argument before the district court. Greger v. Barnhart, 464 F.3d 968, 973
(9th Cir. 2006) (claimant waived argument that ALJ erred in finding his
psychological problems not severe because he did not raise them before the district
court). To the extent Kloster challenges the ALJ=s finding that the testimony of
Dr. Fitterer was Apartially persuasive,@ this challenge was also forfeited because it
was not raised to the district court. Id.
Contrary to Kloster=s arguments otherwise, substantial evidence supports the
ALJ’s determination that the May 2019 lumbar MRI findings do not relate back to
before the date of last insured. Even if the 2019 MRI, and related medical history,
shows that Kloster=s back condition was medically determinable, this does not
show that Kloster=s back pain was Asevere@ at that time. Although Kloster argues
that the Aevidence arguably relates back to December 31, 2018,@ the standard of
review does not permit us reweigh evidence. Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012) (AEven when the evidence is susceptible to more than one
5 rational interpretation, we must uphold the ALJ=s findings if they are supported by
inferences reasonably drawn from the record.@) superseded on other grounds by 20
C.F.R. ' 404.1502(a); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (AWhere
Free access — add to your briefcase to read the full text and ask questions with AI
FILED NOT FOR PUBLICATION DEC 6 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GINA S. KLOSTER, No. 23-35035
Plaintiff-Appellant, D.C. No. 3:22-cv-05087-DWC
v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington David W. Christel, Magistrate Judge, Presiding
Submitted December 4, 2023** Seattle, Washington
Before: N.R. SMITH, SANCHEZ, and MENDOZA, Circuit Judges.
* 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).
1 Social security claimant Gina Kloster appeals from the district court=s
decision, affirming the denial of her application for social security disability
insurance benefits. AWe review the district court=s order affirming the ALJ=s
denial of social security benefits de novo and reverse only if the ALJ=s decision
was not supported by substantial evidence in the record as a whole or if the ALJ
applied the wrong legal standard.@ Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th
Cir. 2021) (citations omitted). We have jurisdiction under 28 U.S.C. ' 1291, and
we affirm.
On appeal, Kloster argues that (1) 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017)
(codified at 20 C.F.R. pts. 404 & 416), colloquially known as the 2017 social
security regulations, are inconsistent with our precedent and unlawful; (2) the
ALJ=s residual-function-capacity determination and determination that Kloster was
not disabled is not supported by substantial evidence; and (3) the ALJ erred in
evaluating both the medical and nonmedical evidence, failing to properly consider
Kloster=s physical and mental impairments, symptom testimony, and the testimony
of her husband.
We decline to reach the merits of Kloster’s challenge to the 2017 social
security regulations because she lacks standing to raise this challenge. Kloster
2 does not allege any specific errors stemming from the ALJ=s application of the
revised social security regulations, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017)
(codified at 20 C.F.R. pts. 404 & 416). Kloster does not allege that the ALJ
improperly discounted one of her treating physicians’ opinions or another agency=s
prior medical determinations. Because neither Kloster’s challenge nor the ALJ’s
decision turns on the validity of the 2017 social security regulations, even a
favorable ruling on the merits would not redress Kloster’s alleged injury. See
Cath. League for Religious & C.R. v. City & Cnty. of San Francisco, 624 F.3d
1043, 1053 (9th Cir. 2010) (AStanding . . . requires redressability, that is, that it is
>likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.=@) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992)). She therefore lacks standing to challenge the 2017 regulations. See
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006) (AA plaintiff must
demonstrate standing for each claim he seeks to press.@); see also Jones v. L.A.
Cent. Plaza LLC, 74 F.4th 1053, 1058 (9th Cir. 2023) (“[A] jurisdictional issue
such as Article III standing may be raised sua sponte by the court at any time.@).
We conclude that the ALJ=s residual functional capacity determination that
Kloster was not disabled is supported by substantial evidenceCnamely Kloster=s
3 mobility, medical record from prior to the date of last insured, and the fact that
Kloster had stopped working for a non-impairment reason.
The ALJ noted that Kloster=s claimed mobility limitations were inconsistent
with her daily activities. See Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir.
2007) (considering whether the claimant engages in daily activities inconsistent
with the alleged symptoms). Specifically, Kloster administered insulin shots to
her mother, was on her feet for half the workday, cleaned, fed, shopped, and ran
errands for her mother, and took her mother to doctor=s appointments. In addition,
Kloster testified and indicated that she was able to do the laundry; prepare meals;
take care of her two dogs and two cats (including taking the animals on walks);
work on the computer for an hour daily; and do yardwork such as shoveling,
pulling weeds, pushing wheelbarrows, and watering the yard.
We are not persuaded by Kloster’s argument that the ALJ erred in evaluating
both the medical and nonmedical evidence and failed to properly consider her
physical and mental impairments. The ALJ relied on the medical evidence to
conclude that Kloster only Asporadically@ complained of lower back pain and
received minimal treatment prior to her date of last insured. See 20 C.F.R.
' 404.1529(c)(3)(iv)B(v); Smartt v. Kijakazi, 53 F.4th 489, 500 (9th Cir. 2022)
4 (holding that an ALJ may Aproperly discount[] [a claimant=s] subjective pain
testimony in light of [the claimant=s] generally conservative treatment plan@).
Moreover, Kloster forfeited her argument that the ALJ erred in deciding that
Kloster=s mental health impairments were non-severe, because she did not raise
this argument before the district court. Greger v. Barnhart, 464 F.3d 968, 973
(9th Cir. 2006) (claimant waived argument that ALJ erred in finding his
psychological problems not severe because he did not raise them before the district
court). To the extent Kloster challenges the ALJ=s finding that the testimony of
Dr. Fitterer was Apartially persuasive,@ this challenge was also forfeited because it
was not raised to the district court. Id.
Contrary to Kloster=s arguments otherwise, substantial evidence supports the
ALJ’s determination that the May 2019 lumbar MRI findings do not relate back to
before the date of last insured. Even if the 2019 MRI, and related medical history,
shows that Kloster=s back condition was medically determinable, this does not
show that Kloster=s back pain was Asevere@ at that time. Although Kloster argues
that the Aevidence arguably relates back to December 31, 2018,@ the standard of
review does not permit us reweigh evidence. Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012) (AEven when the evidence is susceptible to more than one
5 rational interpretation, we must uphold the ALJ=s findings if they are supported by
inferences reasonably drawn from the record.@) superseded on other grounds by 20
C.F.R. ' 404.1502(a); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (AWhere
the evidence can reasonably support either affirming or reversing the decision, we
may not substitute our judgment for that of the Commissioner.@).
We reject Kloster’s argument that the ALJ erred by discounting her
testimony and failing to consider her husband’s testimony. Substantial evidence
supports the ALJ’s determination that Kloster=s testimony was inconsistent with
her medical treatment, ability to perform a variety of physical tasks, and her stated
reason for quitting her job. The ALJ=s failure to explain whether and to what
extent it considered Kloster=s husband=s testimony was Ainconsequential to the
ultimate nondisability determination in the context of the record as a whole.@
Molina, 674 F.3d at 1122 (internal quotation marks omitted). Because Kloster=s
husband Adid not describe any limitations beyond those [Kloster] herself described,
which the ALJ discussed at length and rejected based on well-supported, clear and
convincing reasons,@ to the extent the ALJ erred, it was harmless. Id.
Finally, Kloster’s argument that the ALJ erred in relying on the medical-
vocational grids fails. This argument is premised on the existence of the
6 non-exertional limitations Kloster testified to. But, as explained, the ALJ properly
discounted Kloster=s testimony. The ALJ also found that Kloster=s mental health
impairments Adid not cause more than minimal limitation in the claimant=s ability
to perform basic mental work activities and was therefore nonsevere.@ Therefore,
the ALJ=s reliance on the medical-vocational grids was proper. See Barnes v.
Berryhill, 895 F.3d 702, 706 (9th Cir. 2018) (stating that reliance on the medical-
vocational grids is inappropriate only when significant non-exertional limitations
exist); Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) (upholding an ALJ
decision that excluded from the residual-functional capacity determination a
claimant=s depression because it was Aa mild impairment, which presented no
significant interference with the ability to perform basic work-related activities@).
In sum, substantial evidence supports the ALJ=s determination that Kloster=s
back condition was not Asevere@ prior to the date of last insured, and the ALJ
properly discounted Kloster=s testimony using objective medical evidence and
giving clear and convincing reasons. 20 C.F.R. ' 404.1529(c)(2); see Ghanim v.
Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (holding that an ALJ may discount a
claimant=s testimony when the claimant=s Aactivities . . . are incompatible with the
severity of symptoms alleged@); Molina, 674 F.3d at 1113 (affirming ALJ=s finding
7 that claimant=s activities were Ainconsistent with her daily activities throughout the
disability period@); Parra, 481 F.3d at 750B51 (observing that Ainconsistencies@
between a claimant=s subjective complaints and objective medical evidence
Aconstitute significant and substantial reasons to find [the claimant=s] testimony
less than completely credible.@).
AFFIRMED.