Renee Hirtzel v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2022
• Docket: 21-35313
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RENEE HIRTZEL, No. 21-35313

Plaintiff-Appellant, D.C. No. 3:20-cv-05485-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

Argued and Submitted June 7, 2022 Portland, Oregon

Before: EBEL,** W. FLETCHER, and CLIFTON, Circuit Judges.

Claimant Renee Hirtzel challenges the district court’s ruling affirming the

Commissioner of Social Security’s denial of her application for disability benefits.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. The Administrative Law Judge (“ALJ”) denied Hirtzel benefits after determining

that she suffered from several severe mental and physical impairments, but

nonetheless had the residual functional capacity (“RFC”) to perform light work and

was “not disabled” for the purposes of her application.

Hirtzel claims that the ALJ erroneously discounted certain evidence

presented during her benefits hearing, namely (1) Hirtzel’s subjective complaints

that her mental impairments prevent her from performing light work and (2) the

opinions of health care providers who said Hirtzel could not work.1 We review de

novo the district court’s decision to uphold the Commissioner’s denial of benefits,

but will reverse the denial “only if the ALJ’s decision was not supported by

substantial evidence in the record as a whole or if the ALJ applied the wrong legal

standard.” Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s order.

1. At her 2020 benefits hearing, Hirtzel testified that her mental impairments

make her angry and emotional, prevent her from concentrating and finishing any

tasks, and inhibit her from being around other people or getting along with them.

1 Hirtzel initially raised a constitutional argument to this Court as well, but conceded that this claim was untimely because she failed to raise it before the district court. We find the argument forfeited and do not consider its merits. See Ford v. Saul, 950 F.3d 1141, 1158 n.12 (9th Cir. 2020).

2 She also stated that she was diagnosed with a psychotic disorder because she

“feel[s] and see[s] spirits.”

Taking this testimony and the entire record into consideration, the ALJ

concluded that Hirtzel’s “severe medically determinable impairments could

reasonably be expected to cause some of [Hirtzel’s] alleged symptoms,” but that

her testimony regarding the effects of the symptoms were inconsistent with other

evidence that showed she was “more than capable of sustaining work activity

consistent with the residual functional capacity despite her impairments.” In other

words, the ALJ did not fully credit Hirtzel’s subjective assertions that her mental

impairments were debilitating.

Substantial evidence supports the ALJ’s conclusion, as the ALJ fulfilled her

obligation to provide “specific, clear and convincing reasons” for discounting

Hirtzel’s subjective complaints. Id. at 1112 (quoting Garrison v. Colvin, 759 F.3d

995, 1014–15 (9th Cir. 2014)). The ALJ identified specific evidence in the record

that contradicted or failed to support Hirtzel’s testimony. For instance, the ALJ

noted that Hirtzel’s health care providers generally recorded her demeanor during

examinations as normal and cooperative, indicating she could tolerate at least some

social interaction; that Hirtzel failed consistently to seek treatment for her mental

impairments, and that Hirtzel made inconsistent statements about her symptoms

throughout the record, including affirmative denials of having any hallucinations.

3 These reasons, suffice as substantial evidence to support discounting Hirtzel’s

subjective complaints.

2. Additionally, Hirtzel challenges the ALJ’s decision to accord only partial

weight to five of the medical opinions offered by Hirtzel, which she argues

demonstrate that her mental impairments are so debilitating as to prevent her from

performing even light work. These opinions included a January 2015 report from

nurse practitioner Kathleen Henry; a February 2015 report from Dr. Peter Weiss;

and three evaluations by Dr. Kimberly Wheeler—one in May 2017, one in June

2018, and one in July 2019.

Dr. Weiss and Dr. Wheeler are doctors who examined Hirtzel but did not

provide any treatment, so the ALJ could only reject their opinions “by providing

specific and legitimate reasons that are supported by substantial evidence”—that is,

by “setting out a detailed and thorough summary of the facts and conflicting

clinical evidence, stating his interpretation thereof, and making findings.”

Garrison, 759 F.3d at 1012 (citations omitted). As to Nurse Henry’s opinion,

which is from a source other than an examining doctor, the ALJ was merely

required to give “reasons germane” to the opinion in order to discount it. Dale v.

Colvin, 823 F.3d 941, 943 (9th Cir. 2016) (citation omitted).

Here, the ALJ analyzed each of the five opinions in detail and provided

specific legitimate reasons for giving each opinion little or partial weight. The

4 ALJ emphasized, in particular, that all five opinions were based primarily or

exclusively on Hirtzel’s subjective complaints, which were exaggerated or

inconsistent with many of her stated activities, such as shopping and traveling out

of state on at least one occasion. These inconsistencies, along with those noted by

the ALJ in properly discounting Hirtzel’s subjective complaints discussed above,

could not have been known to Drs. Weiss and Wheeler, who did not review

Hirtzel’s medical history beyond the five opinions at issue here. The ALJ, in

contrast, had the opportunity to compare Hirtzel’s subjective complaints to the

entire record, including reports from other health care providers, which indicated

her mental impairments were “severe” but not completely debilitating. The overall

record thus represents substantial evidence supporting the ALJ’s given reasons for

discounting the five opinions of Nurse Henry, Dr. Weiss, and Dr. Wheeler.

AFFIRMED.