Jody Kiss v. Kilolo Kijakazi

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2022
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
JODY MARIE KISS, No. 20-15932
Plaintiff-Appellant, D.C. No. 2:19-cv-01307-SPL
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Submitted May 19, 2022**
Pasadena, California
Before: MILLER and COLLINS, Circuit Judges, and KORMAN,*** District Judge.
Jody Marie Kiss appeals the district court’s judgment affirming the Social
Security Administration’s denial of her application for disability insurance benefits
and supplemental security income under Titles II and XVI of the Social Security
Act. We have jurisdiction under 28 U.S.C. § 1291 and review de novo the district
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2)(C).
***
The Honorable Edward R. Korman, District Judge for the Eastern District of
New York, sitting by designation.
court’s decision affirming the denial of benefits. Benton ex rel. Benton v.
Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). We may set aside such a denial
only when the findings of the Administrative Law Judge (“ALJ”) “are based on
legal error or not supported by substantial evidence in the record.” Id. We affirm.
An ALJ may discount a claimant’s subjective testimony when, inter alia,
that testimony is contradicted by the medical record, Carmickle v. Comm’r of Soc.
Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); when the claimant reports
symptoms in an inconsistent manner, Tommasetti v. Astrue, 533 F.3d 1035, 1039-
40 (9th Cir. 2008); and when the record contains a lack of corroborating medical
evidence, Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). See also 20
C.F.R. § 404.1529(c)(3)–(4) (describing how an ALJ should evaluate evidence
from medical and nonmedical sources in making a disability determination).
Here, the ALJ proffered specific, clear and convincing reasons to discount
Kiss’s subjective allegations as lacking corroboration and inconsistent with the
medical record. At the hearing, Kiss testified that she uses a walker due to hip and
back pain, that she usually spends the day lying in bed, that she experiences head,
back, shoulder, and hip pain “all the time,” that she is never left alone, and that she
has worsening anxiety and depression. The ALJ found that Kiss’s testimony about
her symptoms was “not entirely consistent with the medical evidence and other
evidence in the record,” citing reports of spinal diagnostic examinations that
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showed mild to moderate impairments. The ALJ also cited reports from various
medical providers that “typically noted normal objective examinations.” Despite
Kiss’s statement that she needed to use a walker, the ALJ noted that Kiss’s
“treating providers consistently noted . . . normal gait and sensation.” The ALJ
also noted that Kiss’s migraines improved with treatment and that, while her
providers sometimes noted that she was anxious, her mental status examinations
were in many respects “essentially normal.” Although some of the cited reports
did reflect “abnormal” mood, we cannot say that the ALJ’s overall assessment of
the mental health record was erroneous. The ALJ’s conclusion that Kiss’s
subjective contentions were inconsistent with the medical evidence was based on a
permissible reading of the record that we may not set aside.1
Kiss also argues that the ALJ erred in discounting a psychological evaluation
prepared by consulting psychologist Natalie Hurd, in which Dr. Hurd found that
Kiss struggled with memory, comprehending instructions, concentration,
maintaining attention, and that she would likely struggle to maintain “socially
appropriate behavior” and to “respond appropriately to changes” in the workplace.
Because this evaluation is contradicted by other assessments in the record
1
Any error in the ALJ’s reliance on Kiss’s asserted ability to travel “up a
mountain” during a trip was harmless, because the ALJ provided ample other
reasons for discounting her subjective allegations. See, e.g., Lambert v. Saul, 980
F.3d 1266, 1278 (9th Cir. 2020) (“An error is harmless only if it is inconsequential
to the ultimate nondisability determination.”) (internal quotation omitted).
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generally describing Kiss’s mental capacity as “not significantly” and
“moderately” limited, the ALJ “was required to give only ‘specific and legitimate’
reasons for rejecting the opinion.” Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir.
2020). The ALJ did so, noting that this assessment was inconsistent with other
evidence in the medical record.
In her opening brief, Kiss argues for the first time that the ALJ violated due
process by conducting the hearing when Kiss was ill. Because Kiss, who was
represented by counsel before the ALJ and the district court, did not raise this
argument before the district court, the issue is forfeited. See Ford, 950 F.3d at
1158 n.12; Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999).
AFFIRMED.
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