Marcellina MacArthur v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 8, 2023
• Docket: 23-35050
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARCELLINA M. MACARTHUR, No. 23-35050

Plaintiff-Appellant, D.C. No. 3:22-cv-05282-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

Submitted December 6, 2023** Seattle, Washington

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

Appellant Marcellina M. MacArthur seeks review of a district court order

affirming a decision by an Administrative Law Judge (“ALJ”) denying MacArthur

for a Period of Disability and Disability Insurance Benefits, and for Supplemental

* 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). Security Income (“SSI”). We have jurisdiction under 28 U.S.C. § 1291. We

review the district court’s order affirming the ALJ’s denial of benefits de novo, and

will not overturn the denial “unless it is either not supported by substantial

evidence or is based upon legal error.” Luther v. Berryhill, 891 F.3d 872, 875 (9th

Cir. 2018). We affirm.

When determining eligibility for benefits, an “ALJ must consider all medical

opinion evidence.”1 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)

(citing 20 C.F.R. § 404.1527(b)). An ALJ is not required to take all medical

opinions at face value, and may properly reject a contradicted medical opinion by

setting forth “specific and legitimate reasons supported by substantial evidence in

the record.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended)

(internal quotation marks omitted). “The ALJ can meet this burden by setting out a

detailed and thorough summary of the facts and conflicting clinical evidence,

stating his interpretation thereof, and making findings.” 2 Magallanes v. Bowen,

881 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks and citation omitted).

1 Because MacArthur applied for benefits prior to March 27, 2017, the revised regulations regarding the evaluation of medical opinions do not apply. See Woods v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022). 2 MacArthur’s bare contention that the ALJ did not properly evaluate the findings and opinion of Dr. Nagaraj is not supported by argument. We therefore deem the contention forfeited. See Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986).

2 1. The ALJ gave specific and legitimate reasons for discounting Dr.

Morgan’s mental health opinion from September 2015. The ALJ found Dr.

Morgan’s observations of marked limitations, depressed mood and limited recall

were inconsistent with the opinions of other mental health examiners, Dr. Alvord

and Dr. Ryan, who noted unimpaired memory and concentration, normal affect,

and appropriate interactions. The ALJ also noted MacArthur’s normal presentation

in many other medical appointments, and her ability to take college classes and

keep a regular schedule. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d

595, 600–02 (9th Cir.1999) (inconsistencies between a physician’s opinion and a

claimant’s daily activities can be a specific and legitimate reason to discount the

treating physician’s opinion). The ALJ found that Dr. Morgan’s opinion was also

inconsistent with evidence of MacArthur’s improvement under a routine and

conservative course of mental health treatment. Substantial evidence in the record

supports the ALJ’s specific findings.

2. The ALJ gave specific and legitimate reasons for its partial rejection

of Dr. Alvord’s mental health opinion of “mild-moderate impairment in adaptive

functioning,” finding this conclusion internally inconsistent with the observation

that MacArthur had no mental health treatment, normal concentration and memory,

and only mild difficulties with activities of daily living. See id. at 603 (internal

inconsistencies within a physician’s report are relevant evidence in determining the

3 weight of a medical opinion). The ALJ also found Dr. Alvord’s opinion

inconsistent with other observations of normal memory and concentration, a

routine and conservative course of treatment, and her ability to maintain a daily

schedule.

3. The ALJ’s decision to give Dr. Ryan’s mental health opinion “some

but less than great weight” is supported by specific and legitimate reasons based on

substantial evidence in the record. The ALJ’s decision to discount Dr. Ryan’s

functional adaptive limitation as vague is supported by clear and legitimate reasons

found in the record. See 20 C.F.R. § 404.1520b(b) (ambiguous evidence is

considered inconsistent). The ALJ found Dr. Ryan’s schedule limitation

inconsistent with MacArthur’s “report of getting good grades in college classes,

and her work activity in 2016-2021, which suggest that her mental symptoms cause

little interference in maintaining a daily or weekly schedule.” See Morgan, 169

F.3d at 600-02. The ALJ did not err in finding that MacArthur’s ability to engage

in activities like school and work was inconsistent with Dr. Ryan’s schedule

limitation.

4. The ALJ did not err in not addressing Dr. Brzusek’s June 2010

evaluation of MacArthur’s workplace compensation claim. Dr. Brzusek’s findings

are consistent with the ALJ’s residual functional capacity (“RFC”) determination

that MacArthur was limited to slower-pace, sedentary work. Nor did the ALJ err

4 in discounting the opinion of vocational rehabilitation counselor Ms. Smith. An

ALJ may discount lay witness opinion evidence by providing “reasons germane to

each witness for doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)

(internal quotation marks and citation omitted). The ALJ provided germane

reasons for discounting Ms. Smith’s opinion based on inconsistencies with record

evidence of limited pain behavior observations, largely normal strength, improved

headache and migraine symptoms, conservative treatment, lack of behavioral

difficulties, and ability to take college classes and work.

5. The ALJ provided clear and convincing reasons for discounting

MacArthur’s subjective testimony regarding the intensity, persistence, and limiting

effects of her alleged debilitating pain related to her fibromyalgia and neuropathy.

The ALJ found that the objective medical evidence did not support MacArthur’s

claims and was inconsistent with allegations of disabling limitations. MacArthur’s

conditions improved with a routine and conservative course of treatment, and her

ability to maintain a college schedule and daily activities were inconsistent with

her alleged limitations. 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”).

The ALJ carefully reviewed MacArthur’s treatment history post-surgeries

and her overall improvement and pain management. Although MacArthur did not

5 seek a referral to a fibromyalgia specialist until 2013, Dr. Pfeiffer found in 2011

that she had only mild to moderate issues with this impairment, even without

medication. MacArthur also noted improvement in her condition when she did

take medication after 2013. While this improvement was not uniform, she was

able to maintain a regular work and class schedule during the period of claimed

disability. Further, the ALJ did not discount MacArthur’s testimony in full, and

accounted for her physical and mental limitations in the RFC. See id. at 1163.

AFFIRMED.