Homa Davary v. Kilolo Kijakazi

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOMA DAVARY, No. 20-16750
Plaintiff-Appellant, D.C. No. 4:18-cv-01050-JSW
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted February 21, 2023**
Before: D. NELSON, SILVERMAN, and GRABER, Circuit Judges.
Homa Davary appeals pro se 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 (Act). We have
*
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).
jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo,
Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.
Because Davary did not object and because she is bound by the actions of
her counsel, the Administrative Law Judge (ALJ) did not commit legal error by
using the amended alleged onset date. See Casey v. Albertson’s Inc., 362 F.3d
1254, 1260 (9th Cir. 2004) (“As a general rule, parties are bound by the actions of
their lawyers[.]”).
The ALJ did not err at step two when she found that Davary did not have a
severe impairment during the relevant period. The objective medical evidence did
not support Davary’s allegations that her anxiety and depression, diabetes, and
degenerative joint disease in her knees should have been considered additional
medically determinable impairments during the relevant period. See Ukolov v.
Banhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (quoting SSR 96–4p). Further, the
objective medical evidence did not support Davary’s allegations of severity with
respect to her medically determinable impairments of obesity, lumbar degenerative
disc disease, and umbilical hernia during the relevant period. See id.The ALJ provided specific, clear, and convincing reasons to discount
Davary’s symptom testimony by citing to record evidence that contradicted
Davary’s assertions and undermined the severity of the limitations alleged. See
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (Where the ALJ has
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rationally construed the evidence, the reviewing court “must uphold the ALJ’s
findings.”); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (An ALJ
may discredit a claimant’s testimony based on “prior inconsistent statements
concerning the symptoms, and other testimony by the claimant that appears less
than candid.”) (internal citations omitted); Burch v. Barnhart, 400 F.3d 676, 681
(9th Cir. 2005) (An ALJ may consider a lack of objective medical evidence as one
factor in a claimant’s credibility determination.). Any error in the ALJ’s additional
reasons for discounting Davary’s testimony was harmless. See Molina, 674 F.3d at
1115 (An error is harmless where it is “inconsequential to the ultimate
nondisability determination.”). Furthermore, the ALJ provided germane reasons to
discount the weight afforded to the third-party function report, statements, and
declarations submitted by Haleh, Davary’s sister. See Bayliss v. Barnhart, 427
F.3d 1211, 1218 (9th Cir. 2005) (“Inconsistency with medical evidence” is a
germane reason for discounting testimony of a lay witness.).
Because Davary’s limited medical records did not contain objective medical
evidence supporting a finding of disability prior to her date last insured, the ALJ
could reasonably conclude that no reasonable medical advisor could infer that
Davary’s disability began during the period for which she lacked medical
documentation. Therefore, the ALJ was not required to call upon a medical expert
to determine an onset date. See Wellington v. Berryhill, 878 F.3d 867, 875–76 (9th
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Cir. 2017) (Evidence presented did not demonstrate the claimant’s mental
impairments at issue were continuously disabling and, therefore, a “medical expert
could not reasonably infer” the claimant became disabled before the date she first
saw a mental health professional.).
AFFIRMED.
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