Margaret Scott v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 2022
• Docket: 21-35503
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 12 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARGARET E. SCOTT, No. 21-35503

Plaintiff-Appellant, D.C. No. 3:20-cv-05833-BAT

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

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Brian Tsuchida, Magistrate Judge, Presiding

Submitted July 8, 2022** Seattle, Washington

Before: HAWKINS and BUMATAY, Circuit Judges, and MOSKOWITZ,*** District Judge.

* 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 Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. Margaret Scott (“Scott”) appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of benefits. The Administrative Law

Judge (“ALJ”) accepted her diagnosis of fibromyalgia as a severe impairment but

found a residual functional capacity to perform light work with some limitations on

lifting, sitting, standing, and walking for six hours in an eight-hour workday, and

therefore concluded she was not disabled within the meaning of the Social Security

Act.

On appeal, Scott contends the ALJ improperly discounted her testimony

regarding her symptoms and residual abilities. The ALJ, however, provided clear

and convincing reasons for discounting portions of her testimony. Ahearn v. Saul,

988 F.3d 1111, 1116 (9th Cir. 2021). The ALJ cited evidence including Scott’s own

statements to medical providers that she participated in activities such as two

quarter-mile walks daily, two 90-minute yoga classes weekly, pool therapy, and was

learning how to quilt. The ALJ also noted Scott had sought relatively conservative

treatment including acupuncture, yoga and massage and reported being “happy with

this” pain regimen. 20 C.F.R. § 404.1529(c)(3) (amount of treatment and its

effectiveness is an important indicator of intensity and presence of symptoms); Cf.

Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (describing significant variety

of treatment methods tried by applicant).

2 Scott also contends the ALJ improperly discounted the opinion of her treating

acupuncturist Dr. Soprani, but again the ALJ proffered sufficient reasons. Pursuant

to this court’s decision in Woods v. Kijakazi, the new regulations which pertain to

Scott’s claim replace this court’s case law requiring different levels of deference to

a hierarchy of medical sources. 32 F.4th 785, 790‒92 (9th Cir. 2022).

As the Commissioner concedes, the ALJ did improperly state that Dr. Soprani

was not a valid medical source, which was incorrect under regulations that apply to

Scott’s claim. See 20 C.F.R. § 404.1513(a)(2). However, the ALJ gave several other

valid reasons for discounting Dr. Soprani’s opinion, including that the opinion is

undated, and it is thus not clear that the opinion applies to the relevant time frame

(2010-2015). Dr. Soprani continued to treat her for several years after this period

and her pain or physical limitations could have increased in the three years after the

last date insured (especially since the opinion states Scott’s condition has

“deteriorated steadily”). See Lombardo v. Schweiker, 749 F.2d 565, 567 (9th Cir.

1984). In addition, although Dr. Soprani treated Scott for pain, there is no indication

that he conducted any testing regarding her residual functional capacity, or that it is

within his area of expertise to determine issues such as her ability to lift, stand, or sit

for periods of time. The ALJ could properly take the lack of objective medical

evidence of functional limitations and the doctor’s limitations in expertise into

account as a reason to discount the opinion. 20 C.F.R. § 404.1520c(c)(4) (opinion

3 of a specialist less persuasive about medical issues outside relevant area of

expertise).1

AFFIRMED.

1 To the extent Scott argues that the ALJ erred at Step 2 by finding that other conditions from which she suffered, including rheumatoid arthritis and Sjogren’s syndrome, were non-severe, she has forfeited this claim by failing to raise it before the district court, Edmund v. Massanari, 253 F.3d 1152, 1158 n.7 (9th Cir. 2001), and by failing to adequately develop this argument in her opening brief, Carmickle v. Comm’r, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008).