Marisol Regalado v. Martin O'Malley

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 17, 2024
• Docket: 23-15693
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARISOL REGALADO, No. 23-15693

Plaintiff-Appellant, D.C. No. 2:22-cv-00211-MTL

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

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding

Submitted July 15, 2024** San Francisco, California

Before: M. SMITH, BENNETT, and JOHNSTONE, Circuit Judges.

Marisol Maria Regalado appeals the district court’s judgment affirming the

denial of disability benefits by the Commissioner of the Social Security

Administration. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

* 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). We review the district court’s decision de novo but review the

Commissioner’s final decision only to ensure that it rests on proper legal standards

and is supported by substantial evidence. See 42 U.S.C. § 405(g); Kitchen v.

Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023). Because the parties are familiar with

the facts, we do not recount them here, except as necessary to provide context to our

ruling.

1. Regalado challenges the Administrative Law Judge’s (ALJ) assessment

of her residual functional capacity (RFC). Regalado first argues that the ALJ failed

to meet the high standard required to reject Regalado’s testimony. We disagree.

When there is no evidence of malingering, we require an ALJ to articulate

“clear and convincing reasons” to reject a claimant’s testimony. The ALJ may

discount the claimant’s subjective complaints by providing “clear and convincing

reasons” for doing so. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599

(9th Cir. 1999). The ALJ satisfies this standard if the decision is “sufficiently

specific to allow a reviewing court to conclude the adjudicator rejected the

claimant’s testimony on permissible grounds and did not ‘arbitrarily discredit a

claimant’s testimony regarding pain.’” Bunnell v. Sullivan, 947 F.2d 341, 345–46

(9th Cir. 1991) (en banc) (quoting Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th

Cir. 1991)). We have “made clear that an ALJ is not ‘required to believe every

allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to’ the Social Security Act.” Smartt v. Kijakazi, 53

F.4th 489, 499 (9th Cir. 2022) (quoting Molina v. Astrue, 674 F.3d 1104, 1112 (9th

Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a)).

Substantial evidence supported the ALJ’s reasons for not relying on

Regalado’s testimony and other descriptions related to her RFC. First, the ALJ

properly considered the objective medical evidence. The ALJ summarized

Regalado’s testimony and other RFC-related description. The ALJ then contrasted

those with the medical evidence, finding Regalado’s allegations were “not entirely

consistent with the medical evidence and other evidence in the records for the

reasons explained in this decision.” For example, the ALJ noted Regalado’s

complaints of knee pain, but that a physical examination showed a normal inspection

and normal range of motion. The ALJ addressed Regalado’s back pain, noting mild

X-Ray findings, a normal lumbar spine examination, and negative straight-leg

testing.

The ALJ similarly discussed issues relating to Regalado’s mental state. The

ALJ noted she “reported difficulty following written and spoken instructions”, but

that on examination she had normal memory. Dr. Littlefield, for example, found her

memory and recall were “good,” and assessed no functional limitations in that area.

In contrast to Regalado’s reports that she had problems concentrating, completing

tasks, and following instructions, the ALJ noted that the record demonstrated she

2 had normal attention span and concentration on many occasions. Thus, The ALJ

reasonably declined to rely on Regalado’s symptom testimony based on the

contradictions between her testimony and the medical record.

Second, the ALJ properly considered Regalado’s overall course of treatment.

The ALJ identified a pattern of conservative and successful treatment. The

effectiveness of treatment is a relevant factor in determining the severity of a

claimant’s symptoms, 20 C.F.R. § 404.1529(c)(3), as is a conservative treatment

course, see Parra v. Astrue, 481 F.3d 742, 750–751 (9th Cir. 2007). The ALJ noted

that Regalado had mild to moderate wrist issues that were mainly treated with

splints. Regalado treated her lower back pain with non-opioid medications, such as

meloxicam and ibuprofen, which helped; she had steroid injections, which provided

100% relief at first, though it then declined in effectiveness; and she received

radiofrequency ablation, which provided 80% relief. The ALJ identified that

Regalado’s diabetes was controlled with proper diet. The ALJ thus reasonably

weighed Regalado’s treatment course against her allegedly disabling symptoms.

Third, the ALJ properly considered Regalado’s range of daily activities.

“Even where those activities suggest some difficulty functioning, they may be

grounds for discrediting the claimant’s testimony to the extent that they contradict

claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. The ALJ,

for example, noted Regalado “reported that her impairments affect her ability to get

3 along with others,” including “increased paranoia and anxiety.” But Regalado also

stated she had never been fired from a job for that reason, and she could go out in

public, shop in stores, and interact appropriately with her treatment providers. The

ALJ also noted that Regalado could prepare simple meals, drive, shop, pay bills, and

read as a hobby. The ALJ also noted Dr. Cunningham’s report that, despite shoulder

and back pain, Regalado was functionally independent, including doing housework

and going on walks. The ALJ thus reasonably weighed Regalado’s activities against

her testimony and claims.

2. Regalado next argues that, in the alternative, we should remand the case

under sentence six of 42 U.S.C. § 405(g).1

Regalado alleges the existence of outstanding records based on her “review of

the certified administrative record.” But Regalado does not actually submit any new

evidence for us to review and does not connect the records to any issue on appeal.

Thus, we have no basis to order the Commissioner to take new evidence.2

AFFIRMED.

1 Under sentence six of 42 U.S.C. § 405(g), we “may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 2 We also note that after the ALJ’s decision, the agency repeatedly informed Regalado, and her current attorney, that she could submit additional evidence for consideration by the Appeals Council.