NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
VICTORIA MCCLAIN, No. 20-36112
Plaintiffs-Appellant, D.C. No. 2:20-cv-00248-MLP Western District of Washington, v. Seattle
KILOLO KIJAKAZI, Acting Commissioner of Social Security, MEMORANDUM* Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Michelle L. Peterson, Magistrate Judge, Presiding
Submitted July 8, 2022** Seattle, Washington
Before: BUMATAY and HAWKINS, Circuit Judges, and MOSKOWITZ,*** District Judge.
Victoria McClain appeals from the district court’s order affirming the
* 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). *** The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. Commissioner’s denial of her claim for disability insurance benefits under Title II
and supplemental security income under Title XVI of the Social Security Act. We
have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.
We review the district court's order de novo and reverse only if the
Administrative Law Judge's (ALJ) decision was not supported by substantial
evidence or relied on legal error. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
If the evidence is susceptible to more than one rational interpretation, we must
uphold the ALJ’s conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
1. Substantial evidence supports the ALJ discounting McClain’s testimony. The
ALJ offered clear and convincing reasons for rejecting McClain’s testimony based
on inconsistencies with the record. For example, although McClain claimed she was
physically and mentally incapable of work, evidence suggested that she is generally
self-sufficient, can take transportation, and can maintain good relationships with her
sisters. These reported activities undermine McClain’s assertion that she is afraid of
people and stays in her room “all day long.” Moreover, substantial evidence supports
the ALJ’s determination that McClain’s mental allegations are not reasonably
disabling. Examining source, Dr. Alex Crampton, deemed McClain fit to work from
a mental health standpoint and treating physician Dr. Joshua Johnston described her
as having a normal mood and affect as well as having appropriate reasoning and
insight.
2 20-36112 McClain also challenges the reduced weight given to the testimony of her
sister, Roxanne Portteus, who testified that McClain’s anxiety and poor judgment
resulted in McClain experiencing difficulties working for Portteus and her husband.
While an ALJ may not reject lay testimony simply because the witness is a family
member, see Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996), the ALJ
discounted Portteus’s testimony for germane reasons. See Lewis v. Apfel, 236 F.3d
503, 511 (9th Cir. 2001) (ALJ may discount lay testimony for express germane
reasons). The ALJ considered her testimony but gave more weight to the opinions
of the treating medical providers. See Valentine v. Comm'r Soc. Sec. Admin., 574
F.3d 685, 694 (9th Cir. 2009) (where an ALJ discounted a claimant’s testimony for
inconsistencies with the medical evidence, the ALJ properly discounted a lay
witness’s similar testimony). Moreover, the ALJ took into account McClain’s
functional limitations in his residual functional capacity determination.1
2. Substantial evidence supports the ALJ’s weighing of the medical opinion
evidence. While McClain claims the ALJ applied the incorrect standard to the
medical evidence, the ALJ properly applied the pre-2017 standard which recognized
1 McClain points to new evidence in the record submitted after the hearings but does not explain how the new records are material or undermine the ALJ’s decision where it is otherwise supported by substantial evidence. See Clem v. Sullivan, 894 F.2d 328, 332–33 (9th Cir. 1990); see also 42 U.S.C. § 405(g). McClain has also failed to show good cause for failing to incorporate these records in the proceedings given that the ALJ provided counsel multiple opportunities to obtain the records. See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017).
3 20-36112 three types of medical opinion evidence, treating, examining, and nonexamining,
with more weight generally afforded in descending order. The ALJ significantly
credited Dr. Crampton, who concluded that McClain “appears to be fit to work from
a [mental health] standpoint as it seems as though her physical problems are of
primary concern,” and any impairments would last only 6 months. The ALJ found
that Dr. Crampton’s examining-source opinion was consistent with the reported
activities throughout the record. Moreover, the ALJ credited other medical evidence
supporting Dr. Crampton’s conclusion, including Dr. Olegario Ignacio’s opinion
that McClain’s anxiety and affective disorders are “non severe,” and that McClain
can lift and carry some weight and remain relatively mobile during the workday.
While McClain argues that Dr. Crampton’s report is merely a “check box,” the report
also includes Dr. Crampton’s five-page narrative explaining his conclusions and
analysis. See Ford, 950 F.3d at 1155 (holding that an ALJ may consider the quality
of the medical explanation).
Next, McClain challenges the reduced weight given to the opinion of her treating
therapist, Julia Kocian. A therapist is not generally an acceptable medical source
under the regulations in effect at the time McClain filed her claim. See 20 CFR §
404.1513(d) (2013). The ALJ gave Kocian’s opinion “some” weight, but noted that
her conclusion that McClain would encounter difficulty in a place of work due to
her significant mental impairments was contravened by evidence of McClain’s
4 20-36112 demonstrated abilities, including traveling, shopping, and socializing. Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (ALJ may discount testimony from
other sources if the ALJ provides germane reasons for doing so). The ALJ did not
err in his assessment of the medical evidence.
3. The ALJ conducted a full and fair hearing and properly developed the record.
First, the ALJ did not err in declining to call a medical advisor. While McClain
speculates that the onset date of her disability was earlier than reported, McClain
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
VICTORIA MCCLAIN, No. 20-36112
Plaintiffs-Appellant, D.C. No. 2:20-cv-00248-MLP Western District of Washington, v. Seattle
KILOLO KIJAKAZI, Acting Commissioner of Social Security, MEMORANDUM* Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Michelle L. Peterson, Magistrate Judge, Presiding
Submitted July 8, 2022** Seattle, Washington
Before: BUMATAY and HAWKINS, Circuit Judges, and MOSKOWITZ,*** District Judge.
Victoria McClain appeals from the district court’s order affirming the
* 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). *** The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. Commissioner’s denial of her claim for disability insurance benefits under Title II
and supplemental security income under Title XVI of the Social Security Act. We
have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.
We review the district court's order de novo and reverse only if the
Administrative Law Judge's (ALJ) decision was not supported by substantial
evidence or relied on legal error. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
If the evidence is susceptible to more than one rational interpretation, we must
uphold the ALJ’s conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
1. Substantial evidence supports the ALJ discounting McClain’s testimony. The
ALJ offered clear and convincing reasons for rejecting McClain’s testimony based
on inconsistencies with the record. For example, although McClain claimed she was
physically and mentally incapable of work, evidence suggested that she is generally
self-sufficient, can take transportation, and can maintain good relationships with her
sisters. These reported activities undermine McClain’s assertion that she is afraid of
people and stays in her room “all day long.” Moreover, substantial evidence supports
the ALJ’s determination that McClain’s mental allegations are not reasonably
disabling. Examining source, Dr. Alex Crampton, deemed McClain fit to work from
a mental health standpoint and treating physician Dr. Joshua Johnston described her
as having a normal mood and affect as well as having appropriate reasoning and
insight.
2 20-36112 McClain also challenges the reduced weight given to the testimony of her
sister, Roxanne Portteus, who testified that McClain’s anxiety and poor judgment
resulted in McClain experiencing difficulties working for Portteus and her husband.
While an ALJ may not reject lay testimony simply because the witness is a family
member, see Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996), the ALJ
discounted Portteus’s testimony for germane reasons. See Lewis v. Apfel, 236 F.3d
503, 511 (9th Cir. 2001) (ALJ may discount lay testimony for express germane
reasons). The ALJ considered her testimony but gave more weight to the opinions
of the treating medical providers. See Valentine v. Comm'r Soc. Sec. Admin., 574
F.3d 685, 694 (9th Cir. 2009) (where an ALJ discounted a claimant’s testimony for
inconsistencies with the medical evidence, the ALJ properly discounted a lay
witness’s similar testimony). Moreover, the ALJ took into account McClain’s
functional limitations in his residual functional capacity determination.1
2. Substantial evidence supports the ALJ’s weighing of the medical opinion
evidence. While McClain claims the ALJ applied the incorrect standard to the
medical evidence, the ALJ properly applied the pre-2017 standard which recognized
1 McClain points to new evidence in the record submitted after the hearings but does not explain how the new records are material or undermine the ALJ’s decision where it is otherwise supported by substantial evidence. See Clem v. Sullivan, 894 F.2d 328, 332–33 (9th Cir. 1990); see also 42 U.S.C. § 405(g). McClain has also failed to show good cause for failing to incorporate these records in the proceedings given that the ALJ provided counsel multiple opportunities to obtain the records. See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017).
3 20-36112 three types of medical opinion evidence, treating, examining, and nonexamining,
with more weight generally afforded in descending order. The ALJ significantly
credited Dr. Crampton, who concluded that McClain “appears to be fit to work from
a [mental health] standpoint as it seems as though her physical problems are of
primary concern,” and any impairments would last only 6 months. The ALJ found
that Dr. Crampton’s examining-source opinion was consistent with the reported
activities throughout the record. Moreover, the ALJ credited other medical evidence
supporting Dr. Crampton’s conclusion, including Dr. Olegario Ignacio’s opinion
that McClain’s anxiety and affective disorders are “non severe,” and that McClain
can lift and carry some weight and remain relatively mobile during the workday.
While McClain argues that Dr. Crampton’s report is merely a “check box,” the report
also includes Dr. Crampton’s five-page narrative explaining his conclusions and
analysis. See Ford, 950 F.3d at 1155 (holding that an ALJ may consider the quality
of the medical explanation).
Next, McClain challenges the reduced weight given to the opinion of her treating
therapist, Julia Kocian. A therapist is not generally an acceptable medical source
under the regulations in effect at the time McClain filed her claim. See 20 CFR §
404.1513(d) (2013). The ALJ gave Kocian’s opinion “some” weight, but noted that
her conclusion that McClain would encounter difficulty in a place of work due to
her significant mental impairments was contravened by evidence of McClain’s
4 20-36112 demonstrated abilities, including traveling, shopping, and socializing. Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (ALJ may discount testimony from
other sources if the ALJ provides germane reasons for doing so). The ALJ did not
err in his assessment of the medical evidence.
3. The ALJ conducted a full and fair hearing and properly developed the record.
First, the ALJ did not err in declining to call a medical advisor. While McClain
speculates that the onset date of her disability was earlier than reported, McClain
points to no ambiguities in the record supporting the need to consult a medical
advisor. See Wellington v. Berryhill, 878 F.3d 867, 875–76 (9th Cir. 2017). Second,
while the ALJ cut off counsel during his questioning of Portteus, the ALJ provided
counsel the opportunity to submit further written testimony. And the ALJ also
informed McClain that she would be provided 15 minutes for her testimony, and
counsel had concluded questioning McClain before his time expired.
Finally, McClain argues that the ALJ erred at step five in (1) determining that
McClain could perform past work as a gas station attendant and (2) in disregarding
the vocational expert’s opinion on McClain’s off-task behavior percentage.
However, the ALJ made his finding of mobility at step four, 2 finding that McClain
2 McClain’s argument that she should have been “gridded out” is not applicable because the medical-vocational guidelines, or “Grids,” are applied at step five in cases in which a claimant is found to be unable to perform past work. See 20 C.F.R. Part 404, Subpt. P, App. 2.
5 20-36112 could perform her prior relevant work.3 The ALJ asked the vocational expert to
assume a hypothetical based on McClain’s circumstances, who concluded that
McClain could perform her past work with a seven percent off-task percentage.
While counsel for McClain asked the vocational expert to opine on if she could work
with a ten percent off-task percentage, this figure is contrary to the ALJ’s findings,
which are supported by substantial evidence. See Osenbrock v. Apfel, 240 F.3d 1157,
1164-65 (9th Cir. 2001) (“[a]n ALJ is free to accept or reject restrictions in a
hypothetical question that are not supported by substantial evidence.”).
4. For the first time on appeal, McClain argues that the ALJ’s decision is invalid
because 42 U.S.C. § 902(a)(3) unconstitutionally restricts the President’s power to
remove the Commissioner. We recently held that § 902(a)(3) does violate separation
of powers principles. Kaufmann v. Kijakazi, 32 F.4th 843, 849 (9th Cir. 2022).
However, McClain has not shown how the removal provision “actually caused her
harm.” Id. at 849 (citing Collins v. Yellen, 141 S. Ct. 1761, 1788–89 (2021)). The
alleged harm McClain claims to have suffered—that the unconstitutional structure
of the SSA inherently resulted in the denial of her benefits because there existed no
accountability—is not congruent with the examples of harm set forth in Collins and
is more akin to speculative harm rejected in Kaufmann. Collins, 141 S. Ct. at 1789;
3 The ALJ refers to McClain’s prior work as a “gas station attendant,” but McClain had worked for her sister’s business called “Affordable Gas Service.”
6 20-36112 Kaufmann, 32 F.4th at 850. Furthermore, McClain’s ALJ was appointed by an acting
Commissioner who was not subject to the alleged unconstitutional removal
provision and was instead removable at-will. The ALJ’s decision was not invalid.
AFFIRMED.
7 20-36112