Jay Howell v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2023
• Docket: 22-35435
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 19 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAY L. HOWELL, No. 22-35435

Plaintiff-Appellant, D.C. No. 3:21-cv-05589-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

Argued and Submitted March 30, 2023 Seattle, Washington

Before: NGUYEN and HURWITZ, Circuit Judges, and PREGERSON,** District Judge.

Jay Howell appeals a district court judgment affirming the denial of his

application for Social Security disability benefits. We have jurisdiction under 28

U.S.C. § 1291 and affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. 1. An ALJ should normally give “great weight” to a Department of

Veteran Affairs (“VA”) disability rating, but may give it less weight upon providing

“persuasive, specific, [and] valid reasons for doing so.” McCartey v. Massanari,

298 F.3d 1072, 1076 (9th Cir. 2002). Although some of the ALJ’s reasons for

rejecting the VA rating were not persuasive, he provided at least one valid reason:

Howell’s continued employment after the effective date of the VA rating. See

Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692–93 (9th Cir. 2009). Any

error, moreover, was harmless because the ALJ incorporated the VA’s findings

about Howell’s back and shoulder limitations into the residual functioning capacity

(“RFC”) determination and the hypothetical to the vocational expert (“VE”). Molina

v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).

2. The ALJ’s rejection of Nurse Practitioner Maria Wilder’s opinion was

supported by “germane” reasons. Id. at 1111. The medical evidence supports the

ALJ’s conclusion that Howell’s knee and hip pain and carpal tunnel syndrome were

managed by conservative treatment. Records indicating that Howell consistently

presented without a walking-assistive device, and denied gastrointestinal symptoms,

contradicted Wilder’s opinion.

3. The ALJ did not err by giving only partial weight to Dr. Derek

Leinenbach’s opinion. Dr. Leinenbach noted that Howell offered “suboptimal effort

during strength testing” and that the results of his examination were therefore not “a

2 reliable representation” of Howell’s motor strength capabilities. See Chaudhry v.

Astrue, 688 F.3d 661, 671 (9th Cir. 2012).

4. Howell was not prejudiced by the ALJ’s evaluation of the opinions of

Drs. Louis Martin and Alnoor Virji. The ALJ found more limitations than did both

physicians based on “updated medical evidence.”

5. The ALJ gave sufficient reasons for weighing Dr. Jack Lebeau’s

opinions favorably, noting that they were consistent with the medical evidence.

Moreover, the ALJ considered Dr. Lebeau’s testimony about Howell’s back pain,

which stated that Howell’s pain was “a very, very common problem” and that

“almost all” of those who experience it “are able to work” with treatment.1

6. Although the ALJ did not directly discuss other treating physicians’

observations of back and shoulder limitations, he clearly considered this evidence.

The ALJ cited the records of treatment in the summary of evidence and incorporated

back and shoulder impairments into Howell’s RFC.

7. The ALJ’s rejection of Howell’s testimony was supported by “specific,

clear and convincing reasons.” Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir.

2014). Howell stopped working because he was laid off and sought work thereafter,

which undermines his claim that he was unable to work. See Bruton v. Massanari,

1 Because Howell did not challenge Lebeau’s credentials before the ALJ, his argument on that issue is waived. Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999).

3 268 F.3d 824, 828 (9th Cir. 2001). Substantial evidence also supported the rejection

of Howell’s testimony about his knee, hip, and carpal tunnel symptoms. Howell had

a normal ambulation during many of his treatment visits, inconsistently reported

about the need for assistance with daily activities, never reported to providers that

he spent four to five hours a day in a recliner, and elected conservative treatment

over surgery to treat his carpal tunnel syndrome. And as to Howell’s back and

shoulder impairments, any error was harmless because the ALJ incorporated the

relevant impairments into the RFC and hypothetical.

8. Because the RFC was properly presented to the VE in the ALJ’s

hypothetical, Howell’s challenge to the VE’s testimony fails.

AFFIRMED.