Richard Adams v. Kilolo Kijakazi ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD CHARLES ADAMS, No. 21-16413
Plaintiff-Appellant, D.C. No. 2:20-cv-01247-JAT
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted February 8, 2023**
Phoenix, Arizona
Before: GRABER, CLIFTON, and CHRISTEN, Circuit Judges.
Plaintiff Richard Adams appeals the district court’s order affirming an
Administrative Law Judge’s (“ALJ”) denial of Social Security disability benefits.
We have jurisdiction under 28 U.S.C. § 1291. The parties are familiar with 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).
factual and procedural history of this case, so we need not recount it. We review
the district court’s decision de novo and uphold an ALJ’s disability determination
“unless it is either not supported by substantial evidence or is based upon legal
error.” Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022) (citation and internal
quotation marks omitted). We affirm.
I. Medical Opinion Evidence
The ALJ did not err in assigning little weight to the treating physician’s
opinion. To support her determination, she cited inconsistencies between Adams’
improvement from treatment, which enabled him to taper his pain medication, and
the limitations his physician identified. These inconsistencies are specific and
legitimate reasons that “a reasonable mind might accept as adequate to support”
the ALJ’s conclusion that the physician’s opinion was not consistent with and
supported by the record. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(citation and internal quotation marks omitted).
Nor did the ALJ err in assigning substantial weight to the non-examining
state consultants’ reports. Adams forfeited his first argument, about the
consultants’ alleged noncompliance with the requisite regulations, by failing to
raise it below. See Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir. 1985). He
does not explain this omission or contend that an exception applies.
Further, even if we agreed with Adams’ second argument, that the ALJ
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incorrectly assigned substantial weight to the 2013 and 2014 reports because they
predate Adams’ disability onset date,1 any error was harmless. The 2017 reports
made in connection to his current claim, to which the ALJ also assigned substantial
weight, document nearly the same RFC limitations as the 2013 and 2014 reports.
See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“[A]n error is harmless
so long as there remains substantial evidence supporting the ALJ’s decision and
the error ‘does not negate the validity of the ALJ’s ultimate conclusion.’” (citation
omitted)), superseded on other grounds by 20 C.F.R. § 404.1502(a).
Finally, Adams’ third argument, that the 2017 reports were based on
insufficient records, is unpersuasive because the consultants reviewed 2015 and
2016 records from his primary care provider and treating physician, as well as
2017 consultative examinations. Our caselaw does not support his allegation that
the reports were deficient because they did not identify impairments the ALJ later
determined to be severe. See Tommasetti v. Astrue, 533 F.3d 1035, 1041–42 (9th
Cir. 2008) (an ALJ is entitled to resolve evidentiary conflicts).
II. Subjective Symptom Testimony
The ALJ did not err by citing inconsistencies with the objective medical
1
Such a conclusion is doubtful given the ALJ’s duty to consider all relevant
medical evidence, 20 C.F.R. § 404.1527(b)–(c), the similarity between his previous
application and his instant claim, and his own reliance on medical evidence that
predates the disability period, which indicates the older evidence’s continued
relevance.
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evidence to support her determination that Adams’ pain was not as disabling as
alleged. In addition to referring to objective medical evidence, the ALJ pointed to
other clear and convincing reasons—namely, Adams’ rehabilitative exercise
regimen and his reports of good pain control resulting in the tapering of his
medication—to support her adverse credibility determination. See Smartt v.
Kijakazi, 53 F.4th 489, 498–99 (9th Cir. 2022).
III. Excluded Limitations
The ALJ did not err in omitting discussion of specific limitations identified
in the treating physician’s opinion and Adams’ testimony. We do not require an
ALJ to discuss every allegation in medical opinion evidence or symptom
testimony. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012); Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). Adams cites
Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015), to support his
assertion that there is a heightened specificity standard for unfavorable RFC
determinations, but that case provides only that an ALJ must identify specific
inconsistencies to support an adverse credibility determination, and this ALJ did.
AFFIRMED.
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