Kevin Loader v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN LOADER, No. 21-35429
Plaintiff-Appellant, D.C. No. 6:19-cv-00026-JTJ
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
John T. Johnston, Magistrate Judge, Presiding
Argued and Submitted March 8, 2022
Seattle, Washington
Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges.
Kevin Loader appeals from the district court’s decision affirming the
decision of an administrative law judge (ALJ) denying his application for disability
insurance and supplemental security income under the Social Security Act. After
an ALJ initially denied Loader’s application, a previous panel of this court
remanded, holding that the ALJ had erred in failing to consider how Loader’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
depression would affect his residual functional capacity (RFC). Loader v.
Berryhill, 722 F. App’x 653, 655–56 (9th Cir. 2018). On remand, the agency again
concluded that Loader is not disabled. We have jurisdiction under 28 U.S.C. §
1291, and we review de novo. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
2005). We will overturn a decision to deny benefits only if it is “not supported by
‘substantial evidence or it is based on legal error.’” Id. (quoting Magallanes v.
Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). We affirm.
1. Loader argues that the ALJ erred by not providing sufficient reasons
to reject his testimony about the effects of his depression. Where, as here, a
claimant has presented objective evidence of an underlying impairment “which
could reasonably be expected to produce the pain or other symptoms alleged,” the
ALJ must provide “specific, clear and convincing reasons” to reject the claimant’s
testimony about his symptoms. Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th
Cir. 2014). Substantial evidence supports the ALJ’s determination that Loader was
not fully credible. Though Loader alleged that he had difficulty controlling his
mood, the ALJ pointed to record evidence that demonstrated that Loader was
observed to have a “cooperative” attitude, that he was able to “deal appropriately
with authority,” and that he had “no problems with temper control.” Additionally,
while Loader testified in 2018 that his symptoms of depression were so severe as
to prevent him from working, the ALJ noted that his medical records “indicate[d]
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no focal mental health or psychiatric notes” in the past three years and that he had
previously reported to providers that “his attitude was improved and he did not feel
depressed.”
Similarly, the ALJ provided clear and convincing reasons to discount
Loader’s testimony about the extent of his pain. Loader alleged that his “constant”
back pain keeps him from working and makes it difficult to sit, stand, walk, or lift
more than ten pounds. In discounting that testimony, the ALJ explained that
Loader’s activities of daily living contradicted his allegations about the extent of
his symptoms; that Loader’s testimony demonstrated that he was able to manage
his pain with conservative treatment and care; and that the objective medical
evidence indicated his condition was milder than he alleged. See Thomas v.
Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002); Parra v. Astrue, 481 F.3d 742,
751 (9th Cir. 2007); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
2. Loader also argues that the ALJ erred in not providing reasons to
reject the notes of his treating providers. An ALJ need not discuss every treatment
note in a claimant’s medical record, but he must “explain why ‘significant
probative evidence has been rejected.’” Vincent ex rel. Vincent v. Heckler, 739
F.2d 1393, 1394–95 (9th Cir. 1984) (per curiam) (quoting Cotter v. Harris, 642
F.2d 700, 706 (3d Cir. 1981)). The notes Loader has identified do not specifically
document limitations beyond what the ALJ accounted for in the RFC: that Loader
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was precluded from doing detailed or complex work and from interacting with
multiple members of the public on more than an occasional basis. Because Loader
has not demonstrated that the treatment notes are probative of more severe
limitations, the ALJ’s failure to discuss every treatment note individually was not
an error.
3. Loader argues that the RFC does not account for all of his
impairments. As we have explained, substantial evidence supports the ALJ’s
credibility determination, and the ALJ did not err when considering the medical
evidence. It follows that the RFC was supported by substantial evidence. See
Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008). And because
the hypothetical posed to the vocational expert reflected the RFC, the ALJ did not
err in relying on the vocational expert’s responses to the hypothetical. Valentine v.
Commissioner Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).
Finally, Loader challenges the RFC because it does not include limitations
that he alleges are attributable to his Dupuytren’s contracture or his use of a cane.
Both of these arguments fail. First, the ALJ concluded at step two that Loader’s
Dupuytren’s contracture was not a severe impairment, and then later explained that
the RFC “does not include upper extremities restrictions” because Loader’s hand
problems were not documented as causing long-term dysfunction. Thus, the ALJ’s
conclusion that this impairment did not need to be included in the RFC was
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supported by substantial evidence.
Second, although Loader now argues that the RFC is defective because it
does not account for limitations related to his narrow gait and use of a cane, he did
not raise that argument to the district court and has therefore forfeited it. See
Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (per curiam). Even if the
argument were preserved, it would not provide a basis for remand. The ALJ
discussed the conflicting evidence in the record but ultimately determined that the
objective medical evidence did not demonstrate “debilitating problems with
[Loader’s] mobility, strength, neurological functioning, or gait.” Substantial
evidence supports that conclusion.
AFFIRMED.
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