Joshua Worrell v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 16, 2023
• Docket: 22-35268
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSHUA LEON WORRELL, No. 22-35268

Plaintiff-Appellant, D.C. No. 4:20-cv-00458-CWD

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

Respondent-Appellee.

Appeal from the United States District Court for the District of Idaho Candy W. Dale, Magistrate Judge, Presiding

Submitted February 8, 2023** Portland, Oregon

Before: MURGUIA, Chief Judge, and FORREST and SUNG, Circuit Judges.

Claimant Joshua Leon Worrell appeals from the district court’s ruling

affirming the Commissioner of Social Security’s denial of his application for

disability benefits. We review the district court’s order de novo and reverse only if

* 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). the Administrative Law Judge’s (ALJ) decision was not supported by substantial

evidence or was based on legal error. Larson v. Saul, 967 F.3d 914, 922 (9th Cir.

2020). We affirm.

1. Due Process. Worrell makes a conclusory argument that the ALJ denied

him due process in evaluating his claim. This argument fails because there is no

indication that the Commissioner failed to afford Worrell an opportunity to be heard,

failed to consider the relevant evidence, or failed to explain the basis for the denial

of Worrell’s claim in a reasoned decision. See Klemm v. Astrue, 543 F.3d 1139, 1144

(9th Cir. 2008) (“A mere allegation of a due process violation is not a colorable

constitutional claim.”) (internal citation omitted).

2. Claimant’s Subjective Evidence of Pain. Substantial evidence supports

the ALJ’s decision to discount Worrell’s subjective evidence of pain because the

ALJ gave clear and convincing reasoning. See Trevizo v. Berryhill, 871 F.3d 664,

678–79 (9th Cir. 2017). The record evidence establishes that Worrell’s hip pain

improved after surgery, physical therapy, and weight loss. See 20 C.F.R.

404.1529(c)(2); Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 598–600

(9th Cir. 1999). Similarly, Worrell’s mental health improved with medication. See

Morgan, 169 F.3d at 599. Moreover, despite partially discrediting Worrell’s self-

reported symptoms, the ALJ incorporated multiple non-exertional physical and

2 mental limitations related to those symptoms into her residual-functional-capacity

determination.

3. Evaluation of Medical Evidence. The Commissioner’s revised regulations

regarding evaluating medical evidence apply to Worrell’s June 14, 2018, disability

claim. See 20 C.F.R. § 404.1520c; Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir.

2022). To the extent Worrell relies on the “displace[d]” standard for evaluating

medical evidence, those arguments are foreclosed by Woods. 32 F.4th at 787.

Worrell also argues that the ALJ substituted her opinion of his mental limitations for

the findings of the consultative examiner.

We conclude the ALJ correctly applied the revised regulations when

evaluating consultative examiner Nels Sather, Ph.D.’s findings. The ALJ explained

why she found Dr. Sather’s opinion persuasive but ultimately incomplete because

Dr. Sather relied on Worrell’s subjective complaints to draw his conclusions. The

ALJ took other administrative findings addressing Worrell’s mental limitations—

the opinions of state agency medical reviewers—into account and linked those

findings, along with Dr. Sather’s opinion, to references in the record and to other

objective sources in making her step-five residual-functional-capacity

Additionally, contrary to Worrell’s assertion, the ALJ did not erroneously

dismiss orthopedist Stephen Kenji Aoki, M.D.’s medical opinions about Worrell’s

3 hip pain. The relevant treatment notes reflect statements that Worrell made to Dr.

Aoki about his hip pain, not Dr. Aoki’s assessment of Worrell’s pain or any

functional limitations associated with it. Accordingly, Dr. Aoki’s notes do not

constitute medical opinions under the Commissioner’s revised regulations. See 20

C.F.R. § 404.1513(a)(2).

4. Step-Five Finding. Substantial evidence supports the ALJ’s step-five

finding. First, as noted above, the ALJ considered the persuasiveness of Dr. Sather’s

opinion, but also properly noted its limitations and relied on the opinions of state

agency medical reviewers to translate Worrell’s mental-health symptoms into

functional limitations. Moreover, the ALJ addressed Worrell’s subjective

complaints to Dr. Sather by limiting him to occasional public, co-worker, and

supervisor interaction. She also addressed Dr. Sather’s findings about Worrell’s

memory by limiting him to simple, routine tasks and low stress work.

Second, the functional restrictions in the residual-functional-capacity

determination sufficiently capture Worrell’s functional limitations related to his

mental-health symptoms. The state agency medical reviewers’ findings are the only

medical evidence in the record that translates those symptoms into functional

limitations. And Worrell does not challenge those opinions. Therefore, substantial

evidence supports the ALJ’s determination that Worrell is only moderately impaired

and can perform “simple, unskilled jobs.”

4 Finally, the ALJ did not err under Maxwell v. Saul, 971 F.3d 1128 (9th Cir.

2020), when she concluded that available jobs in two positions—office work and

electronics worker—constituted “significant numbers in the national economy.”

Maxwell interpreted a rule applying only to persons of advanced age—fifty-five

years or older—with limited transferrable skills. See id. at 1131. This rule is not

applicable to Worrell, who was thirty years old at the time of his alleged disability

onset date.

AFFIRMED.