John O'Brien v. Kilolo Kijakazi ( 2023 )

FILED
NOT FOR PUBLICATION
MAY 31 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN P. O’BRIEN, No. 22-35285
Plaintiff-Appellant, D.C. No. 6:20-cv-01998-JR
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Jolie A. Russo, Magistrate Judge, Presiding
Argued and Submitted April 21, 2023
Portland, Oregon
Before: RAWLINSON, BEA, and SUNG, Circuit Judges.
John O’Brien (O’Brien) appeals the denial of his application for Social
Security benefits by an Administrative Law Judge (ALJ). 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.
“We review a district court’s judgment de novo and set aside a denial of
benefits only if it is not supported by substantial evidence or is based on legal
error.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (citation and internal
quotation marks omitted). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. (citation
and alteration omitted). “Where the evidence is susceptible to more than one
rational interpretation, the ALJ’s decision must be affirmed.” Id. (citation
omitted).
1. Substantial evidence supports the ALJ’s discounting of O’Brien’s
subjective testimony regarding the extent of his physical and mental impairments.
The ALJ provided “clear and convincing reasons” for discounting O’Brien’s
symptom testimony, and discussed the facts supporting his conclusions. Id. at 497.
The ALJ identified the discounted testimony, and specified the medical evidence
that supported his determination.
The medical records consistently documented that O’Brien had
unremarkable imaging, normal movement, limited range of motion, normal
strength, and no deformities or abnormalities. O’Brien also exhibited normal
mood, responded well to interventions, improved while in therapy, and was alert,
engaged, and oriented. See id. at 498 (“When objective medical evidence in the
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record is inconsistent with the claimant’s subjective testimony, the ALJ may
indeed weigh it as undercutting such testimony. . . .”) (citation omitted).
2. Contrary to O’Brien’s argument, the ALJ did not reject Dr. Alan
Silver’s medical opinion. Rather, the ALJ incorporated the medical opinion into
the residual functional capacity (RFC) determination of light work, no overhead
reaching with the left arm, “only occasional interaction with coworkers or
supervisors, no interaction with the general public,” and “a static work
environment.” See Turner v. Comm’r, 613 F.3d 1217, 1223 (9th Cir. 2010)
(concluding that the ALJ incorporated the medical expert’s observations when the
RFC was consistent with those observations).
To the extent O’Brien contends that the ALJ was required to consider Dr.
Silver’s opinion regarding O’Brien’s ability to work, he is mistaken. The
determination of whether a claimant can work is reserved to the Commissioner.
See 20 C.F.R. § 416.920b(c)(3)(i) (“Statements that you are or are not . . . able to
work, or able to perform regular or continuing work” are “inherently neither
valuable nor persuasive” because such determinations are reserved to the
Commissioner.).
AFFIRMED.
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