Roberta Whiting v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTA WHITING, No. 19-36032
Plaintiff-Appellant, D.C. No. 3:19-cv-05464-BAT
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding
Argued and Submitted May 13, 2022
Pasadena, California
Before: IKUTA, NGUYEN, and OWENS, Circuit Judges.
Roberta L. Whiting appeals from the district court’s decision affirming the
Administrative Law Judge’s (“ALJ”) partially favorable decision concerning her
application for Supplemental Security Income benefits under Title XVI of the
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g). As the parties are familiar with the facts, we do not recount them here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“We review the district court’s order affirming the ALJ’s denial of social security
benefits de novo and will disturb the denial of benefits only if the decision contains
legal error or is not supported by substantial evidence.” Tommasetti v. Astrue, 533
F.3d 1035, 1038 (9th Cir. 2008) (internal quotation marks and citations omitted).
We affirm.
Whiting argues that the ALJ erred in discounting her testimony that she was
instructed to keep her arm straight while wearing a compression sleeve to treat her
lymphedema. She further argues that the ALJ needed to provide “specific, clear
and convincing reasons” for rejecting her testimony, and that a lack of
corroboration in her medical records is not such a reason. Smolen v. Chater, 80
F.3d 1273, 1281 (9th Cir. 1996); see also, e.g., Moisa v. Barnhart, 367 F.3d 882,
885 (9th Cir. 2004). However, Whiting’s reliance on this standard is misplaced:
This standard governs purely subjective symptoms, such as pain, which “cannot be
objectively verified or measured.” Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir.
1991) (en banc) (quoting Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). By
contrast, Whiting’s testimony concerned instructions from her doctors, which
could be objectively verified, and the ALJ did not err by discounting that testimony
for lack of record support. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.
2005) (rejecting contention that ALJ erred by not “address[ing] the drowsiness
side-effect of her medication” where “the ALJ took into account those limitations
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for which there was record support”).
Nor are we persuaded by Whiting’s argument that the ALJ failed to fully and
fairly develop the record and erred by not “eliciting further medical testimony or
opinion evidence” about her doctor’s instructions. Whiting had the burden of
providing evidence to establish her functional limitation, see Ford v. Saul, 950
F.3d 1141, 1148 (9th Cir. 2020), including her impairments and their severity,
Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001).
AFFIRMED.
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