Lorna Pernell v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORNA J. PERNELL, No. 21-35619
Plaintiff-Appellant, D.C. No. 2:20-cv-01382-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
Submitted May 19, 2022**
Seattle, Washington
Before: WARDLAW, GOULD, and BENNETT, Circuit Judges.
Lorna Pernell appeals the district court’s order affirming the Social Security
Administration’s denial of disability insurance benefits. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
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).
1
1. The Administrative Law Judge (ALJ) did not err by excluding untimely
submitted lay witness statements. Under 20 C.F.R. § 404.935(a), claimants must
“inform [the ALJ] about or submit any written evidence . . . no later than 5
business days before the date of the scheduled hearing” or “the administrative law
judge may decline to consider or obtain the evidence.” Pernell does not dispute
that the evidence was submitted less than five days before the hearing, but argues
that the “five-day rule” violates the ALJ’s obligation to fully and fairly develop the
record. See Sims v. Apfel, 530 U.S. 103, 111 (2000) (“It is the ALJ’s duty to
investigate the facts and develop the arguments both for and against granting
benefits . . . .”). However, the Social Security Commissioner has authority under
the Social Security Act to “adopt reasonable and proper rules and regulations to
regulate and provide for the nature and extent of the proofs and evidence and the
method of taking and furnishing the same.” 42 U.S.C. § 405(a). Implementing a
deadline for the submission of evidence is a reasonable procedure and is consistent
with the ALJ’s duty to fully develop the record.
2. At step four, the ALJ did not neglect to fully consider the medical
evidence and Pernell’s symptom testimony in making the residual functional
capacity determination. Substantial evidence supports the ALJ’s decision to
discount psychologist Dr. Moore’s opinion. See Wood v. Kijakazi, No. 21-35458,
2022 WL 1195334, at ** 1, 6 (9th Cir. Apr. 22, 2022). In particular, the ALJ noted
2
that Dr. Moore relied on the outdated DSM-IV framework for his diagnostic
profile and failed to assess any functional limitations. See Ford v. Saul, 950 F.3d
1141, 1154 (9th Cir. 2020) (“The ALJ need not accept the opinion of any
physician, including a treating physician, if that opinion is brief, conclusory, and
inadequately supported by clinical findings.”) (quoting Thomas v. Barnhart, 278
F.3d 947, 957 (9th Cir. 2002)).
Nor did the ALJ fail to fully assess the functional effects of Pernell’s fatigue
as presented in her medical records. The ALJ relied on multiple opinions from
examining and reviewing physicians that recognize and consider her symptoms of
fatigue. Although Pernell suffered from fatigue, multiple physicians found that she
could still perform a limited range of sedentary work with simple routine tasks.
Finally, the ALJ offered “specific, clear and convincing reasons for”
rejecting Pernell’s subjective testimony about the severity of her symptoms. Smith
v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021) (quoting Garrison v. Colvin, 759
F.3d 995, 1014–15 (9th Cir. 2014)). First, the ALJ observed that Pernell’s treating
physicians wrote in treatment notes that her impairments were generally controlled
with medication. Second, the ALJ found that Pernell’s activities of daily living
were inconsistent with her disability symptom testimony. Third, the ALJ found
that Pernell’s testimony about her mental health impairment was inconsistent with
treatment notes showing that her mental health was stable. Finally, the ALJ noted
3
that Pernell’s “drastic complaints of fatigue” were inconsistent with the medical
evidence. See Ahearn v. Saul, 988 F.3d 1111, 1116–17 (9th Cir. 2021).
3. Substantial evidence also supports the ALJ’s step five determination.
Although the Vocational Expert (VE) testified that “no more than one day per
month of absence would be tolerated on an ongoing basis” and “no more than 10%
of time off task would be typically tolerated” by employers, the ALJ properly
made his step five determination based on the residual functional capacity
assessment, in addition to Pernell’s age, education, and work experience. 20
C.F.R. § 404.1569a(a). The ALJ explicitly recognized that Pernell faced additional
limitations to those identified by the reviewing physicians and found that she did
not have the capacity to perform the “full range of sedentary work.” There was no
medical evidence in the record to support the additional limitations stated by the
VE, so the ALJ was not required to consider them as part of the step five
determination. See Terry v. Saul, 998 F.3d 1010, 1013 (9th Cir. 2021) (affirming
denial of benefits where the ALJ’s interpretation of occupational characteristics
was reasonable).
AFFIRMED.
4