Sebastian Clemente v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEBASTIAN CLEMENTE, No. 21-16047
Plaintiff-Appellant, D.C. No. 2:20-cv-01197-JJT
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Submitted May 13, 2022**
San Francisco, California
Before: W. FLETCHER and KOH, Circuit Judges, and KANE,*** District Judge.
Sebastian Clemente appeals the district court’s affirmance of the final
*
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 Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
decision of the Commissioner of the Social Security Administration, which denied
Clemente’s application for Social Security and Supplemental Security Income
under the Social Security Act. Specifically, Clemente argues that there are five
reversible errors. We have jurisdiction under 28 U.S.C. § 1291. We review the
district court’s decision de novo. See Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th
Cir. 2021). We will reverse only if the decision of the administrative law judge
(“ALJ”) was not supported by substantial evidence, or if the ALJ applied the
wrong legal standard. Id. For the following reasons, we affirm.
1. First, Clemente challenges the “little” weight the ALJ assigned to Dr.
Bisla’s September 15, 2016 opinion that Clemente’s “limitations can only be
accounted for by being off task.”1 Generally, a treating physician’s opinion like Dr.
Bisla’s is entitled to substantial weight. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir.
2020). However, an ALJ may assign a lesser weight to, or discount, that opinion if
it is contradicted by another doctor and if the ALJ can provide “‘specific and
legitimate reasons’ that are supported by substantial evidence in the record.” Id.(quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Otherwise, the ALJ
must provide “clear and convincing” reasons to discount the weight of an
1
Because Clemente challenges no other medical opinion on appeal, we do not
address the ALJ’s findings regarding Dr. Bisla’s other opinions or the opinions of
six other doctors. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,
1161 n.2 (9th Cir. 2008).
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uncontradicted treating physician’s opinion. Lester, 81 F.3d at 830.
Because Dr. Bisla’s challenged opinion was contradicted by other medical
opinions, the ALJ need only provide specific and legitimate reasons supported by
substantial evidence. Ford, 950 F.3d at 1154. The ALJ provided such a reason by
explaining that Dr. Bisla’s challenged opinion was inconsistent with the medical
evidence. See id. This conclusion was supported by substantial evidence, including
the treatment notes of Clemente’s treating physicians, Dr. Bode2 and Dr. Bisla.
The ALJ’s interpretation of Dr. Bisla’s challenged opinion was also
reasonable. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (substantial
evidence standard). Dr. Bisla’s challenged opinion explicitly opined on how often
Clemente’s limitations would cause Clemente to be distracted from a job activity.
The ALJ’s assessment that Dr. Bisla opined that Clemente’s limitations would
cause Clemente to be off task, or distracted, was thus reasonable.
2. Second, Clemente argues that the ALJ erred in weighing Clemente’s
testimony. An ALJ can “reject the claimant’s testimony about the severity of her
symptoms only by offering specific, clear and convincing reasons for doing so.”
Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison v.
Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)).
2
Contrary to Clemente’s suggestion, treating physicians can observe and report
psychiatric conditions based on clinical observations. See Sprague v. Bowen, 812
F.2d 1226, 1232 (9th Cir. 1987).
3
The ALJ offered clear and convincing reasons for rejecting Clemente’s
testimony.3 Specifically, the ALJ found that many of Clemente’s physical and
mental symptoms were well managed or improved when Clemente was taking
medication. See Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017); Warre
v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments
that can be controlled effectively with medication are not disabling . . . .”). The
ALJ also found that Clemente’s mental impairments were not work preclusive
because Clemente was able to interact with others on a limited basis and had
normal memory, impulse control, behavior and mood. See Johnson v. Shalala, 60
F.3d 1428, 1434 (9th Cir. 1995).
3. Third, Clemente argues that the ALJ improperly discounted the lay
witness testimony of Clemente’s mother and son. An ALJ may disregard lay
witness testimony so long as she provides a germane reason. See Stout v. Comm’r,
Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). The ALJ provided germane
reasons because the testimony of Clemente’s mother and son describes similar
limitations as Clemente’s own testimony which the ALJ discounted by providing
clear and convincing reasons. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d
3Because the ALJ provided other clear and convincing reasons to discount
Clemente’s testimony, any error in relying on Clemente’s daily activity levels or
recommended treatment was harmless. See Molina v. Astrue, 674 F.3d 1104, 1116
(9th Cir. 2012), superseded by regulation on other grounds.
4
685, 694 (9th Cir. 2009).
4. Fourth, Clemente argues that the ALJ erred in posing hypothetical
questions to the vocational expert because the ALJ did not include all relevant
limitations. However, the ALJ made no such error because the hypothetical
“contained all of the limitations that the ALJ found credible and supported by
substantial evidence in the record.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th
Cir. 2005).
5. Lastly, considering the entire record, we hold that Clemente’s post-
hearing evidence, a new opinion by Dr. Bisla, does not undermine the ALJ’s
determination. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1160
(9th Cir. 2012). Dr. Bisla did not review or address the numerous other
unchallenged medical opinions on which the ALJ relied. See Thomas v. Barnhart,
278 F.3d 947, 957 (9th Cir. 2002). At best, Dr. Bisla’s new opinion provides an
alternate interpretation of some of the medical evidence which is insufficient on
substantial evidence review. See Ford, 950 F.3d at 1156.
AFFIRMED.
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