Juanita Cross v. Martin O'Malley

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUANITA L. CROSS, No. 23-35096

Plaintiff-Appellant, D.C. No. 3:22-cv-05205-SKV

v. MEMORANDUM* MARTIN J. O'MALLEY, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Sarah Kate Vaughan, Magistrate Judge, Presiding

Argued and Submitted December 4, 2023 Seattle, Washington

Before: N.R. SMITH, SANCHEZ, and MENDOZA, Circuit Judges.

Claimant Juanita L. Cross appeals the district court’s decision affirming the

Commissioner of the Social Security Administration’s denial of her application for

supplemental security income under Title XVI of the Social Security Act. Cross

alleges disability due to a history of seizure activity, polycystic ovarian syndrome

(“PCOS”), major depressive disorder, bipolar disorder, post-traumatic stress

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. disorder, and personality disorder in the context of stimulant-use disorder, alcohol-

use disorder, and cannabis-use disorder. The administrative law judge (“ALJ”)

determined that Cross has the residual functional capacity to perform jobs that

exist in significant numbers in the national economy and therefore denied social

security benefits. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

1. Cross argues that the ALJ erred by failing to reopen prior claims

denied in 2017 and 2018 in order to consider Dr. Kimberly Wheeler’s December

2017 medical opinion. Under the Social Security Act, an ALJ’s denial of a request

to reopen a prior determination or decision is not a final decision subject to judicial

review. See 42 U.S.C. § 405(g); 20 C.F.R. § 416.1403(a)(5) (“Denial of a request

to reopen a determination or a decision” is “not subject to judicial review.”). The

ALJ’s decision not to reopen Cross’s prior denied claims—which she did not

appeal at the time—is therefore not reviewable on appeal.

Cross’s contention that the ALJ never considered Dr. Wheeler’s opinion is

belied by the record. In his review, the ALJ indicated that the agency had already

considered Dr. Wheeler’s opinion as part of an administratively final prior denial.

Moreover, the ALJ noted that “[e]vidence from the previously determined periods

was admitted for historical understanding and so an informed decision about

1 Cross also challenges the validity of the Social Security Administration’s 2017 medical-evidence regulations. We address that claim in a separate published opinion filed concurrently with this memorandum disposition.

2 reopening could be made.” The ALJ’s consideration and ultimate rejection of Dr.

Wheeler’s opinion, to the extent we can review such a determination, is supported

by substantial evidence. See Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022)

(“[A]n ALJ cannot reject an examining or treating doctor’s opinion as unsupported

or inconsistent without providing an explanation supported by substantial

evidence.”).

2. Substantial evidence also supports the partial weight given by the ALJ

to Dr. Loreli Thompson’s opinion. The ALJ found Dr. Thompson’s opinion

“somewhat persuasive” but noted under the supportability factor that she did not

quantify the degree of Cross’s limitations in her medical opinion. See 20 C.F.R.

§ 416.920c(c)(1). Moreover, Dr. Thompson added in her report that the limited

quantified results “must be viewed with caution.” The ALJ found that the doctor’s

apparent “variable and questionable test results” could be due to Cross’s past

trauma and drug use or because, as Dr. Thompson noted, Cross did “not want[] to

be present” and “g[a]ve up quickly” in testing. The ALJ also found significant

inconsistencies between Dr. Thompson’s opinion and the medical records. The

ALJ’s explanation for discounting Dr. Thompson’s opinion in part is supported by

substantial evidence. Woods, 32 F.4th at 792.

3. Cross also contends that the ALJ erred in failing to find that her PCOS

was a severe impairment, causing him to disregard associated limitations. The

3 step-two inquiry requires that the ALJ “consider the combined effect of all of the

claimant’s impairments on her ability to function.” Smolen v. Chater, 80 F.3d

1273, 1290 (9th Cir. 1996). Cross progressed beyond step two because the ALJ

found that Cross had severe impairments based on the totality of her conditions.

At oral argument, Cross’s counsel conceded that the administrative record did not

demonstrate any significant workplace limitations caused by the PCOS over the

adjudicated period, instead asking the Court to infer such limitations from her

repeated emergency room visits. Cross’s medical record, however, fails to provide

sufficient evidence of functional limitations due to the non-severe PCOS

impairment that would have altered the ALJ’s analysis. See Burch v. Barnhart,

400 F.3d 676, 682–83 (9th Cir. 2005).

4. Next, Cross asserts that the ALJ improperly rejected her testimony

that supports a disability finding. Rejection of a claimant’s testimony requires

clear and convincing reasons. Garrison v. Colvin, 759 F.3d 995, 1015 n.18 (9th

Cir. 2014). The ALJ provided such reasons for rejecting some of Cross’s

inconsistent symptom reports, including discrepancies as to whether she

experienced seizures, her need for daytime sleep, her ability to drive, her ability to

travel, and her reported daily activities. The ALJ thus provided clear and

convincing bases to doubt that Cross’s impairments were as limiting as she alleged.

4 5. Finally, substantial evidence supports the ALJ’s residual functional

capacity and step-five findings, which included all credible limitations. An ALJ is

required to consider the effects of a claimant’s symptoms on her ability to work.

20 C.F.R. § 416.929. The ALJ concluded that Cross possesses the residual

functional capacity to conduct work with simple and routine tasks, away from the

public, without climbing or exposure to hazards, and with set responsibilities. The

ALJ found that Cross was unable to perform any past relevant work based on her

limitations. Relying on testimony from a vocational expert, the ALJ then properly

concluded that Cross could make a successful adjustment to other work in several

jobs that exists in significant numbers in the national economy, and that she was

not disabled under the Social Security Act.

AFFIRMED.