Susie Garza v. Kilolo Kijakazi ( 2021 )


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  •                            NOT FOR PUBLICATION                            FILED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.
    4