Marcie Higgins v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 2, 2023
• Docket: 22-35966
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARCIE HIGGINS, No. 22-35966

Plaintiff-Appellant, D.C. No. 1:21-cv-00933-MC

v.

KILOLO KIJAKAZI, Acting Commissioner MEMORANDUM* of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon U.S. District Judge Michael J. McShane

Submitted October 18, 2023** Portland, Oregon

Before: KOH and SUNG, Circuit Judges, and EZRA,*** District Judge.

Appellant Marcie Higgins (“Appellant”) applied for Title II disability and

* 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 Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. disability insurance benefits on January 4, 2019. She applied for Title XVI

supplemental security income on April 3, 2019. In both applications, Appellant

alleged inability to work beginning on September 1, 2014 based on fibromyalgia,

degenerative disc disease, hip pain, arthritis, right torn rotator cuff, diabetes,

chronic migraine, bilateral plantar fibroma, depression/anxiety, and chronic pain.

Appellant’s claims were first denied on March 12, 2019. Her claims were denied

upon reconsideration on July 23, 2019.

Before this Panel is a decision of an Administrative Law Judge (“ALJ”),

dated November 4, 2020, finding Appellant disabled for part of the alleged period

of disability. The district court affirmed the ALJ’s decision on September 28,

2022. Appellant subsequently filed the present appeal. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we review the decision affirming the ALJ’s

denial of benefits de novo. See Webb v. Barnhart, 433 F.3d 683, 685–86 (9th Cir.

2005).

Appellant contends the ALJ erred by excluding her subjective symptom

testimony without supporting his decision with substantial evidence from the

record. Appellant also argues her case should be remanded for an award of

benefits, or alternatively, for further proceedings. We hold that the ALJ did not

commit reversible error on the grounds Appellant asserts, and we affirm the district

court’s judgment.

2 The ALJ needed to provide “specific, clear[,] and convincing reasons for”

rejecting Appellant’s subjective symptom testimony. Garrison v. Colvin, 759 F.3d

995, 1014–15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th

Cir. 1996)). Appellant argues that the ALJ did not point to specific evidence that

undermined her claims. She claims the ALJ only summarized her medical record

and cherry-picked through it, rather than providing specific reasons for finding her

less than credible. Appellant is correct that “general findings are insufficient,” and

that “the ALJ must identify what testimony is not credible and what evidence

undermines the claimant’s complaints” to properly exclude symptom testimony.

Lester v. Charter, 81 F.3d 821, 834 (9th Cir. 1995). However, Appellant

incorrectly asserts that the ALJ did not point to specific evidence in the record

supporting the ALJ’s decision to exclude Appellant’s subjective symptom

testimony.

In the ALJ’s decision, the ALJ cited multiple instances where Appellant’s

testimony conflicted with objective medical evidence and her medical records.

This Circuit considers inconsistency with medical evidence to be a germane reason

for rejecting nonmedical opinion testimony. Bayliss v. Barnhart, 427 F.3d 1211,

1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). For

instance, Appellant provided no medical assessment of her migraine-related

restrictions, and as the ALJ pointed out, her medical records lack reference to

3 ongoing headache symptoms or specialized attempts to treat them. In fact, the only

note in Appellant’s medical record referencing migraine pain in 2014 stated that

Appellant had migraine type pain when she pushed herself up from her recliner,

and this pain lasted about 30 seconds. This contradicts Appellant’s testimony that

in 2014, her migraines occurred once or twice a week and lasted for a few hours or

a few days.

The ALJ also cited contradictions about Appellant’s shoulder pain when

rejecting her testimony. Appellant complained of a 17-year history of right

shoulder pain. Despite the shoulder pain, she stated that she “has not had much

done in the way of treatment other than physical therapy.” Records also show that

she was unwilling to accept any of the dates and times offered to her for physical

therapy to treat the injury causing her severe pain. The ALJ further noted that

objective imaging results of Appellant’s shoulder during that time were

unremarkable, indicating no discernable injury. Appellant’s testimony about the

severity of her pain does not correspond with the medical treatment she pursued.

Similarly, the ALJ explained that Appellant complained of severe six-month

foot pain that impaired her ability to walk. When diagnosed with plantar fibromas

and referred to surgery to correct the issue, Appellant declined both the surgery

and custom orthotics. Appellant’s medical records do not support her testimony on

the severity and extent of her ailments.

4 Appellant also asserts the ALJ failed to take the severity of her limitations

into account. Appellant correctly asserts that the ALJ must consider subjective

experiences of pain in the residual functional capacity assessment (“RFC”).

Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (quoting

20 C.F.R. § 416.945(a)(3)). Crucially, however, the ALJ need only consider

“symptoms . . . [to] the extent to which [these] symptoms can reasonably be

accepted as consistent with the objective medical evidence.”

20 C.F.R. § 404.1529(a). An ALJ need not adopt allegations that the record does

not support. Osenbrock v. Apfel, 240 F.3d 1157, 1164–65 (9th Cir. 2001). As

discussed above, the ALJ made a reasonable finding that the level of impairment

Appellant alleged was not supported by the medical record. Therefore, her alleged

subjective pain did not need to be included in the RFC assessment. The ALJ did

include a high level of impairment in Appellant’s RFC, taking into the account the

severity of her disabilities as supported by the record. The ALJ did not have to

impute either in the RFC or in his hypotheticals to the vocational expert (“VE”) the

subjective severity to which Appellant testified, only the severity the record

supported. Id. at 1165 (“It is . . . proper for an ALJ to limit a hypothetical to

those impairments that are supported by substantial evidence in the record.”); see

also Magallanes v. Brown, 881 F.2d 747, 756–57 (9th Cir. 1989). Because we find

no error in the ALJ’s exclusion of Appellant’s subjective symptom testimony, we

5 also hold that the ALJ did not err by excluding limitations not supported by the

record, like severe migraines, from the RFC and hypotheticals posed to the VE.

AFFIRMED.