Eugenia Brown v. Kilolo Kijakazi ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EUGENIA BROWN, No. 18-16133
Plaintiff-Appellant, D.C. No. 1:17-cv-00950-SAB
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Stanley Albert Boone, Magistrate Judge, Presiding
Submitted October 14, 2021**
Before: THOMAS, Chief Judge, HAWKINS and MCKEOWN, Circuit Judges.
Eugenia Brown appeals the district court’s affirmance of the Commissioner
of Social Security’s denial of her application for disability insurance benefits under
Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875
*
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).
(9th Cir. 2016), and we affirm.
Before the district court, Brown failed to raise and therefore waived any
challenge to the ALJ’s findings that her symptom testimony was unsupported by
and inconsistent with the record, inconsistent with her conservative treatment, and
inconsistent with her activities. See Warre v. Comm’r of Soc. Sec. Admin., 439
F.3d 1001, 1007 (9th Cir. 2006) (an argument not raised before the district court is
waived on appeal). Any error in the ALJ’s finding that Brown was noncompliant
with diet, exercise, and medication was harmless. See Ford v. Saul, 950 F.3d
1141, 1154 (9th Cir. 2020) (error is harmless where it is inconsequential to the
ultimate nondisability determination).
Brown also waived any challenge to the ALJ’s determination that portions of
Dr. Ying Luo’s opinions were entitled to no weight because they were unsupported
by the record, inconsistent with Brown’s activities, and inconsistent with Brown’s
conservative treatment. See Warre, 439 F.3d at 1007.
The ALJ did not err in evaluating the medical record. See Tommasetti v.
Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (this court may reverse only if the
ALJ’s decision “contains legal error or is not supported by substantial evidence”
(citation and internal quotation marks omitted)). We reject as unsupported by the
record Brown’s claim that the ALJ failed to consider her mental impairments,
fibromyalgia, alleged inability to grip, and chronic obstructive pulmonary disease
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(“COPD”).
Substantial evidence supports the ALJ’s findings, at Step Two, that Brown’s
mental impairments, fibromyalgia, and carpal tunnel were not severe. See id. The
record does not support Brown’s contention that the ALJ failed to apply the special
technique for mental impairments set out in 20 C.F.R. § 404.1520a.
Substantial evidence also supports the ALJ’s Step Three finding that Brown
did not have an impairment or combination of impairments that met or equaled a
listed impairment, and the ALJ did not err by not discussing the combined effects
of Brown’s impairments. See Ford, 950 F.3d at 1157 (“[A]n ALJ is not required to
discuss the combined effects of a claimant’s impairments or compare them to any
listing in an equivalency determination, unless the claimant presents evidence in an
effort to establish equivalence.” (citation and internal quotation marks omitted)).
The ALJ did not err in formulating Brown’s residual functional capacity
(“RFC”) or in determining, at Step Five, that jobs existed in significant numbers in
the national economy that Brown could perform. Brown’s arguments concerning
the RFC and the ALJ’s Step Five finding repeat her allegations that the ALJ erred
in evaluating the medical evidence. Because Brown did not show error in the
earlier analysis, these arguments lack support. See Stubbs-Danielson v. Astrue,
539 F.3d 1169, 1175-76 (9th Cir. 2008).
Brown’s motion for judicial notice (Docket Entry No. 7) is denied.
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Brown’s request for oral argument, included in her opening brief, is denied
as moot.
AFFIRMED.
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