Susie Garza v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2021
• Docket: 18-15197
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED AUG 23 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SUSIE GARZA, No. 18-15197

Plaintiff-Appellant, D.C. No. 2:16-cv-01706-KJN

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

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Kendall J. Newman, Magistrate Judge, Presiding

Submitted August 19, 2021**

Before: GOODWIN, CANBY, and SILVERMAN, Circuit Judges.

Susie Garza appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of Garza’s application for supplemental

social security income under Title XVI of the Social Security Act. We have

jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo,

* 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). Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.

At step two, the Administrative Law Judge (“ALJ”) properly applied the

special technique for evaluating mental impairments in concluding that Garza’s

depression was not a severe impairment. See 20 C.F.R. § 404.1520a; Keyser v.

Comm'r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011). Substantial evidence

supports the ALJ’s conclusion that Garza’s depression was not severe because the

record reflected limited treatment, normal mental status exams, and that her

depression was in full remission. See 20 C.F.R. § 404.1520a(d)(1); Molina v.

Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (this court “must uphold the ALJ’s

findings if they are supported by inferences reasonably drawn from the record”).

Moreover, the ALJ properly considered the four broad functional areas, finding

that Garza’s medically determinable mental impairment caused no restrictions in

activities of daily living; no limitations in social functioning; mild limitations in

concentration, persistence, and pace; and no episodes of decompensation of

extended duration. See Keyser, 648 F.3d at 725.

At step three, substantial evidence supports the ALJ’s conclusion that Garza

failed to meet her burden of proving that she has an impairment that meets or

equals Listing 11.04, vascular insult to the brain. See Burch v. Barnhart, 400 F.3d

676, 683 (9th Cir. 2005) (claimant bears the burden of proving that he has an

impairment that meets or equals the criteria of a listed impairment). The ALJ

2 properly relied on medical evidence indicating that Garza’s disturbed gross and

dexterous movements, or gait and station, occurred only intermittently and did not

appear for significant portions of the adjudicatory period.

The ALJ properly relied on the vocational expert’s testimony indicating that

Garza was capable of making a successful adjustment to other work that exists in

significant numbers in the national economy. See Bayliss v. Barnhart, 427 F.3d

1211, 1217–18 (9th Cir. 2005) (ALJ may properly limit a hypothetical to

restrictions supported by substantial evidence in the record). First, the ALJ’s

questions to the vocational expert properly took into account Garza’s limited

education and skills, and the ALJ was not required to include in his hypothetical

limitations that he did not adopt. See id. Second, the ALJ did not err in failing to

address the borderline age category because Garza was not in a borderline age

category on the date of the ALJ’s decision. See Russell v. Bowen, 856 F.2d 81, 84

(9th Cir. 1988) (rejecting petitioner’s argument that the date the Appeals Council

denied review should determine whether he was in a borderline age category).

Finally, the ALJ did not err in limiting Garza’s residual functional capacity to

occasionally handle, finger, or feel with her left upper extremity, because that

limitation is consistent with Dr. Sharma’s assessment that she was limited in

“holding, feeling, and fingering objects with the left hand to occasionally.”

3 Garza waived any challenge to the ALJ’s determination that her testimony

was not entirely credible and to the ALJ’s evaluation of the medical opinion

evidence by failing to raise them in her opening brief. See Indep. Towers of Wash.

v. Washington, 350 F.3d 925, 929-30 (9th Cir. 2003) (“we review only issues

which are argued specifically and distinctly in a party’s opening brief”) (citation

and internal quotation marks omitted).

AFFIRMED.