Stacey Murray v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2023
• Docket: 22-35410
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STACEY MURRAY, No. 22-35410

Plaintiff-Appellant, D.C. No. 1:20-cv-00140-TJC

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

Defendant-Appellee.

Appeal from the United States District Court for the District of Montana Timothy J. Cavan, Magistrate Judge, Presiding

Argued and Submitted April 17, 2023 Portland, Oregon

Before: RAWLINSON, BEA, and SUNG, Circuit Judges.

Plaintiff Stacey Murray appeals the district court’s affirmance of the

Commissioner of Social Security’s denial of disability benefits. We have

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

Miskey v. Kijakazi, 33 F.4th 565, 570 (9th Cir. 2022). We must affirm if the

Administrative Law Judge’s (“ALJ”) factual findings are supported by substantial

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. evidence and if the ALJ’s decision was free from legal error. Id. The parties are

familiar with the facts of the case, so we do not recite them. We affirm.

1. The ALJ harmlessly erred at step three of the sequential evaluation. See

20 C.F.R. § 404.1520(a)(4)(iii). The ALJ wrote only that the record does “not

include evidence of nerve root compression” as is required for Listing 1.04A, see 20

C.F.R. Pt. 404, Subpt. P, App. 1 §1.04(A) (2020), but the record plainly does include

some such evidence. Murray’s providers repeatedly observed cervical

radiculopathy, cervical radiculitis, and moderate to severe neural foraminal

narrowing. The ALJ erred by failing to articulate any other reasoning. See Lewis v.

Apfel, 236 F.3d 503, 512 (9th Cir. 2001). But this error is harmless because Murray’s

counsel conceded at oral argument that the record lacks any evidence of motor loss.

See Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“Each impairment is defined in

terms of several specific medical signs, symptoms, or laboratory test results. For a

claimant to show that his impairment matches a listing, it must meet all of the

specified medical criteria. An impairment that manifests only some of those criteria,

no matter how severely, does not qualify.” (footnotes omitted)).

2. The ALJ provided clear and convincing reasons to discount Murray’s

subjective symptom testimony. See Coleman v. Saul, 979 F.3d 751, 756 (9th Cir.

2020) (noting conduct inconsistent with subjective complaints, as well as drug-

seeking behavior); Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (“An ALJ may

2 consider any work activity, including part-time work, in determining whether a

claimant is disabled . . . .”).

3. The ALJ did not improperly discount an opinion from a treating

physician. Murray cites no “opinion” attesting to Murray’s specific functional

limitations. See 20 C.F.R. § 404.1513(a)(2) (defining “medical opinion”); cf. Turner

v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (holding that the ALJ

did not need to provide clear and convincing reasons to reject a doctor’s report

because it did not assign limitations contradicting the ALJ’s conclusions).

4. The ALJ incorporated all relevant functional limitations into the

hypothetical question posed to the vocational expert. Murray cites no precedent

requiring the ALJ to calculate the frequency of her past medical appointments for

various issues and then incorporate those appointments into the residual functional

capacity in the form of missed work. Cf. Carmickle v. Comm’r, Soc. Sec. Admin.,

533 F.3d 1155, 1163 (9th Cir. 2008) (affirming because the residual functional

capacity was “largely consistent with [the claimant’s] testimony”).

AFFIRMED.