Tami Kahoonei v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMI KAHOONEI, No. 20-35057
Plaintiff-Appellant, D.C. No. 3:19-cv-05324-BAT
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding
Submitted April 16, 2021**
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and PREGERSON,***
District Judge.
Tami Kahoonei appeals the district court’s judgment 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 Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
Commissioner of Social Security’s denial of her application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s judgment affirming the
Administrative Law Judge’s (“ALJ”) denial of social security benefits, and we
reverse “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.” Buck v.
Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). “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). We “may not
reverse an ALJ’s decision on account of a harmless error.” Buck, 869 F.3d at
1048.
The ALJ’s discounting of Kahoonei’s testimony is supported by substantial
evidence. The ALJ provided specific, clear and convincing reasons for discounting
her testimony about the severity of her symptoms. These reasons include
conflicting objective medical evidence, see Rollins v. Massanari, 261 F.3d 853,
857 (9th Cir. 2001) (“While subjective pain testimony cannot be rejected on the
sole ground that it is not fully corroborated by objective medical evidence, the
medical evidence is still a relevant factor in determining the severity of the
claimant’s pain and its disabling effects.”); inconsistencies in Kahoonei’s
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statements concerning the intensity, persistence, and limiting effects of her
symptoms, see Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (“An ALJ
may consider a range of factors in assessing credibility, including . . . prior
inconsistent statements concerning the symptoms . . . .” (internal quotation marks
omitted)); evidence of daily activities that undermine her symptom testimony, see
Rollins, 261 F.3d at 857 (“The ALJ also pointed out ways in which [claimant’s]
claim to have totally disabling pain was undermined by her own testimony about
her daily activities . . . .”); evidence that Kahoonei both searched for and attempted
work after the alleged onset of her disability, see Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (concluding that recent work and
search for work belied claim of debilitating illness); and evidence that Kahoonei
received unemployment benefits after the alleged onset date of her disability, see
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161–62 (9th Cir. 2008)
(holding that “receipt of unemployment benefits can undermine a claimant’s
alleged inability to work full[-]time” if the record establishes that the claimant
“held himself out as available for full-time . . . work”); see also Wash. Rev. Code
§ 50.20.010 (providing that an applicant for unemployment benefits in Washington
State must certify that he or she is “ready, able, and willing” to work).
The Commissioner concedes that the ALJ erred in discounting the testimony
of Kahoonei’s husband, James Kahoonei, on the grounds that James lacked
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medical training and was an interested witness. However, this error was harmless.
James’s testimony was similar to Kahoonei’s, and, as we already concluded, the
ALJ provided specific, clear and convincing reasons for rejecting Kahoonei’s
testimony. “[W]here the ALJ rejects a witness’s testimony without providing
germane reasons, but has already provided germane reasons for rejecting similar
testimony, we cannot reverse the agency merely because the ALJ did not ‘clearly
link his determination to those reasons.’” Molina v. Astrue, 674 F.3d 1104, 1121
(9th Cir. 2012) (citation omitted), superseded by regulation on other grounds.
The ALJ provided specific and legitimate reasons, supported by substantial
evidence, for according little weight to treating physician Dr. Faiola’s October
2017 opinion, which is contradicted by the opinion of reviewing physician Dr.
Bernardez-Fu. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“If a
treating or examining doctor’s opinion is contradicted by another doctor’s opinion,
an ALJ may only reject it by providing specific and legitimate reasons that are
supported by substantial evidence.”). The ALJ found that Dr. Faiola’s opinion was
based more on Kahoonei’s subjective complaints—which the ALJ properly
discounted, see supra at 2–3—than on objective findings in the medical record.
See Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (concluding that the ALJ
properly disregarded a treating physician’s opinion because it was premised on
claimant’s “own subjective complaints, which the ALJ had already properly
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discounted”). The ALJ also found that the opinion was inconsistent with the
objective findings in the medical record, which indicated normal sensation in
Kahoonei’s extremities and normal gait and balance. See Thomas v. Barnhart, 278
F.3d 947, 957 (9th Cir. 2002) (“The ALJ need not accept the opinion of any
physician, including a treating physician, if that opinion is brief, conclusory, and
inadequately supported by clinical findings.”); see also 20 C.F.R.
§§ 404.1527(c)(4), 416.927(c)(4).
The ALJ outlined specific evidence in the medical record as a basis for
according little weight to the opinion of non-examining physician Dr. Packer. See
Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). The ALJ found that this
opinion was inconsistent with the limited objective findings in the medical record,
Kahoonei’s return to work after the alleged onset date of her disability, and her
ability to complete household chores throughout the day. See Rollins, 261 F.3d at
856 (concluding that treating physician’s opinion was “inconsistent with the level
of activity that [claimant] engaged in”).
Finally, Kahoonei also briefly argues that the ALJ failed to include the need
for a cane in the residual functional capacity (“RFC”), undermining his
determination at step five. However, an ALJ need only include in the RFC and
hypotheticals posed to a vocational expert those limitations that are supported by
substantial evidence. See Bayliss, 427 F.3d at 1217. Kahoonei fails to demonstrate
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that any of the evidence she cites establishes that her use of a cane was medically
required. See SSR 96-9p (“To find that a hand-held assistive device is medically
required, there must be medical documentation establishing the need for a hand-
held assistive device to aid in walking or standing, and describing the
circumstances for which it is needed . . . .” (emphasis added)).
AFFIRMED.
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