Homa Davary v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2023
• Docket: 20-16750
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HOMA DAVARY, No. 20-16750

Plaintiff-Appellant, D.C. No. 4:18-cv-01050-JSW

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

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Submitted February 21, 2023**

Before: D. NELSON, SILVERMAN, and GRABER, Circuit Judges.

Homa Davary appeals pro se the district court’s affirmance of the

Commissioner of Social Security’s denial of her application for disability

insurance benefits under Title II of the Social Security Act (Act). We have

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

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

Because Davary did not object and because she is bound by the actions of

her counsel, the Administrative Law Judge (ALJ) did not commit legal error by

using the amended alleged onset date. See Casey v. Albertson’s Inc., 362 F.3d

1254, 1260 (9th Cir. 2004) (“As a general rule, parties are bound by the actions of

their lawyers[.]”).

The ALJ did not err at step two when she found that Davary did not have a

severe impairment during the relevant period. The objective medical evidence did

not support Davary’s allegations that her anxiety and depression, diabetes, and

degenerative joint disease in her knees should have been considered additional

medically determinable impairments during the relevant period. See Ukolov v.

Banhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (quoting SSR 96–4p). Further, the

objective medical evidence did not support Davary’s allegations of severity with

respect to her medically determinable impairments of obesity, lumbar degenerative

disc disease, and umbilical hernia during the relevant period. See id.

The ALJ provided specific, clear, and convincing reasons to discount

Davary’s symptom testimony by citing to record evidence that contradicted

Davary’s assertions and undermined the severity of the limitations alleged. See

Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (Where the ALJ has

2 rationally construed the evidence, the reviewing court “must uphold the ALJ’s

findings.”); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (An ALJ

may discredit a claimant’s testimony based on “prior inconsistent statements

concerning the symptoms, and other testimony by the claimant that appears less

than candid.”) (internal citations omitted); Burch v. Barnhart, 400 F.3d 676, 681

(9th Cir. 2005) (An ALJ may consider a lack of objective medical evidence as one

factor in a claimant’s credibility determination.). Any error in the ALJ’s additional

reasons for discounting Davary’s testimony was harmless. See Molina, 674 F.3d at

1115 (An error is harmless where it is “inconsequential to the ultimate

nondisability determination.”). Furthermore, the ALJ provided germane reasons to

discount the weight afforded to the third-party function report, statements, and

declarations submitted by Haleh, Davary’s sister. See Bayliss v. Barnhart, 427

F.3d 1211, 1218 (9th Cir. 2005) (“Inconsistency with medical evidence” is a

germane reason for discounting testimony of a lay witness.).

Because Davary’s limited medical records did not contain objective medical

evidence supporting a finding of disability prior to her date last insured, the ALJ

could reasonably conclude that no reasonable medical advisor could infer that

Davary’s disability began during the period for which she lacked medical

documentation. Therefore, the ALJ was not required to call upon a medical expert

to determine an onset date. See Wellington v. Berryhill, 878 F.3d 867, 875–76 (9th

3 Cir. 2017) (Evidence presented did not demonstrate the claimant’s mental

impairments at issue were continuously disabling and, therefore, a “medical expert

could not reasonably infer” the claimant became disabled before the date she first

saw a mental health professional.).

AFFIRMED.