John Walker v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 20, 2023
• Docket: 22-35351
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOHN HARVEY WALKER, No. 22-35351

Plaintiff-Appellant, D.C. No. 2:20-cv-01821-HL

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

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Andrew D. Hallman, Magistrate Judge, Presiding

Submitted April 18, 2023** Portland, Oregon

Before: RAWLINSON, BEA, and SUNG, Circuit Judges.

Appellant John Harvey Walker timely appeals the district court’s judgment

affirming the Commissioner of Social Security’s denial of disability benefits. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. The parties are

* 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). familiar with the facts of the case, so we do not recite them here. We review the

district court decision de novo and review the decision of the Administrative Law

Judge (ALJ) for substantial evidence. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

2005). Even if the ALJ errs, the court must affirm the decision if the error is

harmless. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), superseded on

other grounds by 20 C.F.R. § 404.1502(a).

1. The ALJ provided “specific, clear and convincing reasons” for discounting

Walker’s subjective symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028,

1036 (9th Cir. 2007) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)).

Contrary to Walker’s assertion, the ALJ properly identified the portions of Walker’s

testimony he disbelieved and provided specific record evidence in support of his

findings. For example, the ALJ discounted Walker’s testimony about the severity of

his knee and back pain because treatment records from multiple providers showed

that: (1) Plaintiff had only mild swelling or tenderness in his knees and good range

of motion, (2) MRI images did not reveal severe conditions in Walker’s back, and

(3) an examining physician noted that Walker’s back pain “remained somewhat out

of proportion to physical exam/radiographic findings.” See 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.”). Similarly, although Walker complained about difficulty using his

2 hands, exams showed that Walker had intact sensation, had no significant swelling,

and had no difficulty with pinching, grasping, or fingering. Substantial evidence in

the record also showed that Walker’s pain improved after treatment and medication.

See 20 C.F.R. § 416.929(c)(3)(iv)–(v); Wellington v. Berryhill, 878 F.3d 867, 876

(9th Cir. 2017).

2. Walker argues that the ALJ improperly rejected medical opinion evidence:

Dr. Joseph McCoy opined that Walker could not stand or walk for more than about

2/3 of the workday (or about 5.3 hours of an 8-hour workday), but the ALJ found

that Walker could stand or walk for up to 6 hours of the workday. Walker argues

that the ALJ erred in rejecting Dr. McCoy’s medical opinion without evaluating the

persuasiveness of the opinion as required by 20 C.F.R. §§ 404.1520c, 416.920c.

But any such error was harmless because a finding that Walker could not stand

or walk for more than 5.3 hours a day would not disturb the ALJ’s conclusion that

Walker was capable of performing the jobs of counter clerk, garment sorter, and

small parts assembler. At Walker’s hearing, the vocational expert explained that

none of these three jobs has a requirement for time spent standing or walking in a

given day, and that these jobs “have much more apt ability to provide an individual

to sit and stand at [his] workstation.” The ALJ credited this testimony and concluded

that Walker could perform these jobs even if he were further limited in his capacity

to sit or stand. Thus, “the ALJ’s error, if any indeed existed, was inconsequential to

3 the ultimate nondisability determination,” and was therefore harmless. Stout v.

Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).

3. Finally, Walker’s argument that the ALJ’s vocational hypothetical was

incomplete merely repackages his arguments that the ALJ erred in discounting his

subjective symptom testimony and the medical opinion evidence. 533 F.3d 1155See

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008). As discussed

above, the ALJ did not err in discounting Walker’s testimony, and any error

regarding the medical opinion evidence was harmless.

AFFIRMED.