Ernest Brito, III v. Kilolo Kijakazi ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNEST HERNANDEZ BRITO III, No. 22-15631
Plaintiff-Appellant, D.C. No. 2:20-cv-01779-DJH
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted February 9, 2023**
Phoenix, Arizona
Before: HAWKINS, GRABER, and CHRISTEN, Circuit Judges.
Plaintiff Ernest Hernandez Brito III timely appeals the district court’s order
affirming an administrative law judge’s (“ALJ”) final decision denying Plaintiff’s
claim for disability insurance benefits and supplemental security income. “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).
[ALJ’s] disability determination should be upheld unless it contains legal error or
is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th
Cir. 2007). Reviewing de novo the district court’s decision to affirm the Social
Security Administration’s denial of benefits, Garrison v. Colvin, 759 F.3d 995,
1010 (9th Cir. 2014), we reverse and remand.
1. When rejecting the testimony of a claimant, “the ALJ must specifically
identify the testimony she or he finds not to be credible and must explain what
evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208
(9th Cir. 2001). An ALJ may “reject the claimant’s testimony about the severity
of [his] symptoms” as long as the ALJ provides “specific, clear, and convincing
reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir.
2015). Here, the ALJ met those standards with respect to some reasons. He
discussed each of Plaintiff’s claimed symptoms and identified exhibits in the
record that were inconsistent with those symptoms. Specifically, the ALJ
identified evidence and medical findings contradicting Plaintiff’s claimed
limitations in his spine, left shoulder, elbow, and knee. But the ALJ’s disbelief of
Plaintiff’s asserted limitations resulting from his prostate cancer is not supported
by substantial evidence. Plaintiff testified that he needs to use the restroom several
times an hour. The ALJ’s disbelief of this testimony finds no support in the
medical records and, in the relevant paragraph of his opinion, the ALJ cited no
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such support. Medical reports after Plaintiff’s prostatectomy are fully consistent
with his testimony. For example, a urologist was treating Plaintiff for extensive
urinary frequency and incontinence issues. Three different medications were
prescribed for Plaintiff, but all three efforts failed.
Contrary to the Acting Commissioner’s argument, Plaintiff did not forfeit
this argument by failing to present it in his appeal to the district court. In his
opening brief to the district court, Plaintiff argued that the ALJ’s statement—that
he did not believe that Plaintiff needed to use the restroom as often as alleged but
believed instead that normal breaks during a workday would suffice—lacked a
basis in the medical records.
This error is not harmless. As the ALJ noted, “the frequency contained in
the residual functional capacity (i.e., the ordinary breaks) is sufficient.”
Accordingly, the RFC did not take account of this symptom. But, because the
ALJ’s assessment of Plaintiff’s musculoskeletal impairments is supported by
substantial evidence, a remand for payment of benefits is not warranted under 42
U.S.C. § 405(g). See Garrison, 759 F.3d at 1020 (setting forth standard for remand
for an award of benefits).
2. Plaintiff filed his disability claim before revised rules regarding the
weighing of medical evidence took effect. 20 C.F.R. § 404.1527. Thus, the ALJ
had to weigh medical opinions on a hierarchy: treating physicians’ opinions
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receive the most weight, then examining physicians, and then non-examining
physicians. Garrison, 759 F.3d at 1012. Doctors Briggs and Hunter examined
Plaintiff; the state medical consultants did not. In addition, the ALJ had to
“explicitly reject a medical opinion or set forth specific, legitimate reasons for
crediting one medical opinion over another[.]” Id. The ALJ properly weighed the
physicians’ opinions and gave appropriate explanations.
a. The ALJ properly assigned “little weight” to Doctor Briggs’ opinion,
except as to Plaintiff’s urinary urgency and incontinence, and “partial weight” to
Doctor Hunter’s opinion. The ALJ noted that Doctor Briggs’ findings were
inconsistent with the findings from Doctor Hunter’s clinical examination and
“benign physical examination findings throughout the adjudicatory period.” The
ALJ discussed Plaintiff’s walking limitations cited by Doctor Briggs, noting that
“treatment notes throughout the file directly, and consistently, contradict” Doctor
Briggs’ observations. Finally, the ALJ permissibly dismissed Doctor Briggs’
assessment regarding Plaintiff’s ability to perform regular work because that is a
legal conclusion.
b. As to Doctor Hunter, the ALJ explained that his assessment merited
partial weight because the “record does not support the more restrictive
lifting . . . and walking limitations” Doctor Hunter noted. The ALJ provided a
specific example supporting that conclusion, noting that “physical examination
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findings revealed no significant range of motion, strength, sensation or
other . . . deficits of the claimant’s spine or lower extremities.”
c. Finally, the ALJ properly assigned “significant weight” to the opinions of
the non-examining physicians from the state agency. “An ALJ may reject the
testimony of an examining, but non-treating physician, in favor of a non[-]
examining, non[-]treating physician when he gives specific, legitimate reasons for
doing so, and those reasons are supported by substantial record evidence.” Roberts
v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). The ALJ noted that these physicians’
findings were consistent with the rest of the record, including the “generally benign
physical examination findings” and Plaintiff’s “testimony that he retains the ability
to perform most of his daily living activities[.]” The non-examining physicians
also refer to the improvement of Plaintiff’s knee symptoms post-surgery and the
absence of surgical treatment for Plaintiff’s neck and lower back issues.
REVERSED and REMANDED.
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