Nellie Peebles v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 29, 2023
• Docket: 22-35841
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NELLIE J. PEEBLES, No. 22-35841

Plaintiff-Appellant, D.C. No. 3:21-cv-05892-SKV

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

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Sarah Kate Vaughan, Magistrate Judge, Presiding

Submitted August 25, 2023** Portland, Oregon

Before: BENNETT, VANDYKE, and H.A. THOMAS, Circuit Judges.

Nellie Peebles appeals the district court’s order affirming an Administrative

Law Judge’s (ALJ) denial of her claim for Social Security disability benefits. We

have jurisdiction under 28 U.S.C. § 1291. We review the district court’s decision

* 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). de novo and may only overturn the ALJ’s decision if it is not supported by

substantial evidence or based on legal error. See Luther v. Berryhill, 891 F.3d 872,

875 (9th Cir. 2018).

1. The ALJ found persuasive the opinions of Dr. Linda Lindman and Dr.

Sushil Sethi and found not persuasive the medical findings from state agency

consultants Dr. Eugene Kester and Dr. Howard Platter. Under the applicable

regulations, the agency is only required to articulate “how persuasive it finds all of

the medical opinions from each doctor or other source, and explain how it

considered the supportability and consistency factors in reaching th[o]se findings.”

Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (cleaned up); see 20 C.F.R.

§ 404.1520c(b). Substantial evidence supports the ALJ’s conclusion that the

opinions of Dr. Lindman and Dr. Sethi were “consistent with the majority of the

medical record, which did not reflect significant limitations in functioning.”1

Peebles provides a list of medical providers whose clinical findings she argues are

inconsistent with the opinions of Dr. Lindman and Dr. Sethi. But she does not

explain what portions of the findings are inconsistent, and we do not identify any

inconsistencies.

1 Peebles argues for the first time in her reply brief that the opinions lacked supportability, but arguments raised for the first time in a reply brief are forfeited. Vasquez v. Rackauckas, 734 F.3d 1025, 1054 (9th Cir. 2013) (“Because we do not consider issues raised for the first time in reply briefs, we deem this late-raised argument forfeited.”).

2 Substantial evidence also supports the ALJ’s conclusion that the findings

from Dr. Kester and Dr. Platter were “not consistent with the current medical

records,” including the medical opinions of Dr. Lindman and Dr. Sethi. Although

Peebles argues that the findings from Dr. Kester and Dr. Platter were “more

consistent” with the record than other findings the ALJ found persuasive, her

argument misconstrues the relevant standard of review. “Where evidence is

susceptible to more than one rational interpretation, it is the ALJ’s conclusion that

must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

2. Substantial evidence supports the ALJ’s discounting of Peebles’s

testimony regarding the severity and extent of her limitations. “When objective

medical evidence in the record is inconsistent with the claimant’s subjective

testimony,” the ALJ may “weigh it as undercutting such testimony.” Smartt v.

Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022). But the ALJ must offer “‘specific,

clear, and convincing reasons for doing so.’” Id. at 494 (quoting Garrison v.

Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). The ALJ here reasonably

contrasted Peebles’s stated use of assistive devices for mobility with the lack of

objective medical evidence that such devices were prescribed or otherwise

medically necessary. Additionally, Peebles “alleged an inability to perform work

activity due to impaired vision,” but, as the ALJ noted, had already undergone

surgery for her glaucoma, “did not wear glasses,” and “watched television.”

3 Finally, Peebles’s lack of visits to a mental health counselor supports the ALJ’s

conclusion that she “did not experience significant [mental health] limitations.”

Ultimately, “the ALJ’s rationale is clear enough that it has the power to

convince.”2 Id. at 499.

3. Because the “lay witness testimony” of Peebles’s husband did “not

describe any limitations not already described by the claimant,” the ALJ did not

commit prejudicial error by discounting it. Molina, 674 F.3d at 1117. The ALJ’s

“well-supported reasons for rejecting” Peebles’s testimony “apply equally well to

the lay witness testimony.” Id.

4. Finally, because substantial evidence supports the ALJ’s discounting of

“the limitations described by Peebles and Peebles[’s husband],” substantial

evidence also supports the ALJ’s residual functional capacity assessment.

AFFIRMED.

2 It is true that, as Peebles argues, the ALJ was required to “mak[e] specific findings” relating to the question whether she engages in daily activities involving skills that could be transferred to the workplace. Burch, 400 F.3d at 681. Even assuming that the ALJ failed to do so here, any error was harmless because the ALJ provided other valid reasons to discount Peebles’s testimony. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a).