Manuel Vasquez, III v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 9, 2023
• Docket: 22-55827
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 9 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MANUEL VASQUEZ III, No. 22-55827 D.C. No. 2:21-cv-03757-FMO- Plaintiff-Appellant, MAA v. U.S. District Court for Central District of California KILOLO KIJAKAZI, Acting Commissioner of Social Security, MEMORANDUM* Defendant-Appellee.

Appeal from the U.S. District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted October 18, 2023** San Francisco, California

Before: W. FLETCHER, NGUYEN, and R. NELSON, Circuit Judges.

Manuel Vasquez III appeals the district court’s order affirming the denial of

his application for disability benefits under Title XVI of the Social Security Act. We

review the district court’s order de novo and reverse only if the Administrative Law

* 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). Judge’s (“ALJ”) decision was “not supported by substantial evidence in the record

as a whole or” if the ALJ “applied improper legal standards.” Stone v. Heckler, 761

F.2d 530, 531 (9th Cir. 1985). We have jurisdiction under 28 U.S.C. § 1291 and

affirm.

1. The ALJ did not err in determining that Mr. Vasquez does not suffer

from primary headache disorder as a medically determinable impairment, a

threshold requirement to receiving disability benefits. 42 U.S.C. § 1382c(a)(3)(A)

(“[A]n individual shall be considered to be disabled” if he or she has a “medically

determinable physical or mental impairment[.]”). The ALJ found that Mr. Vasquez

suffered from several medically determinable impairments, including head trauma,

asthma, and obesity, but Mr. Vasquez argues that he also suffers from primary

headache disorder because of his migraines.

The ALJ found that no physician ruled out other potential causes of Mr.

Vasquez’s headaches. See also Social Security Ruling (SSR) 19-4P, 2019 WL

4169635, at *4 (Aug. 26, 2019) (“[P]hysicians diagnose a primary headache disorder

only after excluding alternative medical and psychiatric causes of a person’s

symptoms.”). To refute this finding, Mr. Vasquez points to evidence that his

physicians diagnosed him with migraines, but the regulations state that a diagnosis

or medical opinion is insufficient in the absence of “objective medical evidence.”

20 C.F.R. § 416.921. One of his physicians theorized his migraines could be caused

2 by sinusitis. The ALJ also correctly noted that no physicians recorded observations

of his typical headache. See also SSR 19-4P, 2019 WL 4169635, at *6 (discussing

how observations could be objective medical evidence). The ALJ also concluded

that Mr. Vasquez’s headache journal did not include the required level of detail, and

he did not follow through on potentially helpful treatment. See also SSR 19-4P,

2019 WL 4169635, at *4. Substantial evidence supports the ALJ’s finding that Mr.

Vasquez does not suffer from primary headache disorder.1

2. Mr. Vasquez argues that the ALJ erred in discounting Mr. Vasquez’s

testimony about the severity of his symptoms. Mr. Vasquez likely forfeited his

challenge by failing to raise this specific issue below. See Vasquez v. Kijakazi, No.

2:21-cv-03757-FMO-MAA (C.D. Cal.), ECF No. 19; One Indus., LLC v. Jim O’Neal

Distrib., Inc., 578 F.3d 1154, 1158 (9th Cir. 2009). Even so, the ALJ did not err.

The ALJ reasoned that Mr. Vasquez’s activities contradicted the reported severity

of his symptoms and the effects of his conditions, and that he did not receive a

tailored medication regime. These are valid reasons for discounting claimant

testimony. See Smartt v. Kijakazi, 53 F.4th 489, 497–99 (9th Cir. 2022); Ahearn v.

Saul, 988 F.3d 1111, 1117 (9th Cir. 2021).

3. The ALJ did not err in concluding that Mr. Vasquez’s headaches were

1 Contrary to the Acting Commissioner’s argument, Mr. Vasquez raised the issue at the district court level and did not forfeit this argument. See Vasquez v. Kijakazi, No. 2:21-cv-03757-FMO-MAA (C.D. Cal.), ECF No. 19.

3 not medically equivalent to Listing 11.02. If a claimant’s impairment is not a listed

impairment, the claimant can still establish a disability by showing that his or her

“impairment is medically equivalent to a listed impairment.” 20 C.F.R.

§ 416.926(a). The claimant “must present medical findings equal in severity to all

the criteria for the one most similar listed impairment.” Sullivan v. Zebley, 493 U.S.

521, 531 (1990) (emphasis in original).

The ALJ reasonably discounted the only relevant testimony. The physician

stated that Mr. Vasquez’s migraines were equivalent to Listing 11.02A, for more

serious tonic-clonic seizures, rather than Listing 11.02B or D, for dyscognitive

seizures, and the physician did not provide a reason for using the listing that is less

analogous to primary headache disorder. See also SSR 19-4P, 2019 WL 4169635,

at *7. Further, the physician’s testimony was appropriately discounted because he

could not describe which requirements for the equivalency finding were or were not

met, he did not provide evidence for ruling out alternative causes of the headaches,

and he did not sufficiently consider other medications or treatments.

AFFIRMED.