Stacey Murray v. Kilolo Kijakazi ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STACEY MURRAY, No. 22-35410
Plaintiff-Appellant, D.C. No. 1:20-cv-00140-TJC
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Timothy J. Cavan, Magistrate Judge, Presiding
Argued and Submitted April 17, 2023
Portland, Oregon
Before: RAWLINSON, BEA, and SUNG, Circuit Judges.
Plaintiff Stacey Murray appeals the district court’s affirmance of the
Commissioner of Social Security’s denial of disability benefits. We have
jurisdiction. 28 U.S.C. § 1291. We review the district court’s decision de novo.
Miskey v. Kijakazi, 33 F.4th 565, 570 (9th Cir. 2022). We must affirm if the
Administrative Law Judge’s (“ALJ”) factual findings are supported by substantial
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
evidence and if the ALJ’s decision was free from legal error. Id. The parties are
familiar with the facts of the case, so we do not recite them. We affirm.
1. The ALJ harmlessly erred at step three of the sequential evaluation. See
20 C.F.R. § 404.1520(a)(4)(iii). The ALJ wrote only that the record does “not
include evidence of nerve root compression” as is required for Listing 1.04A, see 20
C.F.R. Pt. 404, Subpt. P, App. 1 §1.04(A) (2020), but the record plainly does include
some such evidence. Murray’s providers repeatedly observed cervical
radiculopathy, cervical radiculitis, and moderate to severe neural foraminal
narrowing. The ALJ erred by failing to articulate any other reasoning. See Lewis v.
Apfel, 236 F.3d 503, 512 (9th Cir. 2001). But this error is harmless because Murray’s
counsel conceded at oral argument that the record lacks any evidence of motor loss.
See Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“Each impairment is defined in
terms of several specific medical signs, symptoms, or laboratory test results. For a
claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria. An impairment that manifests only some of those criteria,
no matter how severely, does not qualify.” (footnotes omitted)).
2. The ALJ provided clear and convincing reasons to discount Murray’s
subjective symptom testimony. See Coleman v. Saul, 979 F.3d 751, 756 (9th Cir.
2020) (noting conduct inconsistent with subjective complaints, as well as drug-
seeking behavior); Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (“An ALJ may
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consider any work activity, including part-time work, in determining whether a
claimant is disabled . . . .”).
3. The ALJ did not improperly discount an opinion from a treating
physician. Murray cites no “opinion” attesting to Murray’s specific functional
limitations. See 20 C.F.R. § 404.1513(a)(2) (defining “medical opinion”); cf. Turner
v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (holding that the ALJ
did not need to provide clear and convincing reasons to reject a doctor’s report
because it did not assign limitations contradicting the ALJ’s conclusions).
4. The ALJ incorporated all relevant functional limitations into the
hypothetical question posed to the vocational expert. Murray cites no precedent
requiring the ALJ to calculate the frequency of her past medical appointments for
various issues and then incorporate those appointments into the residual functional
capacity in the form of missed work. Cf. Carmickle v. Comm’r, Soc. Sec. Admin.,
533 F.3d 1155, 1163 (9th Cir. 2008) (affirming because the residual functional
capacity was “largely consistent with [the claimant’s] testimony”).
AFFIRMED.
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