Amy Fiederowicz v. Kilolo Kijakazi

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMY FIEDEROWICZ, No. 19-35567
Plaintiff-Appellant, D.C. No. 3:18-cv-01036-MO
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted October 12, 2021**
San Francisco, California
Before: THOMAS, Chief Judge; HAWKINS and McKEOWN, Circuit Judges.
Amy Lorene Fiederowicz appeals 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. We have jurisdiction
*
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).
under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo, and the
Commissioner's decision must be affirmed if supported by substantial evidence,
and if the Commissioner applied the correct legal standards. Attmore v. Colvin,
827 F.3d 872, 875 (9th Cir. 2016). If the evidence is “susceptible to more than one
rational interpretation,” we are required to affirm. Id. (quoting Molina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012), superseded by regulation on other grounds).
We affirm.
The ALJ erred in failing to discuss the April 2013 opinion of Fiederowicz’s
treating physician Dr. Jacqueline Lustig, which addressed Fiederowicz’s condition
shortly after brain surgery during which she suffered a stroke. See Marsh v.
Colvin, 792 F.3d 1170, 1172–73 (9th Cir. 2015). Dr. Lustig’s opinion was
considered, however, in Fiederowicz’s prior unsuccessful claim for benefits, and
her current claim alleged a failure to improve sufficiently in subsequent months.
In the context of the current claim, the ALJ’s error is harmless because Dr.
Lustig’s assessment of Fiederowicz’s post-operative condition is “inconsequential
to the ultimate nondisability determination” and this court can confidently
conclude that no reasonable ALJ could have reached a different disability
determination based on the neglected opinion. Id. at 1173 (quoting Stout v.
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Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006)).
Substantial evidence supports the ALJ’s evaluation of the opinion of
examining clinical neuropsychologist Dr. Julia Wong-Ngan. The ALJ was not
required to include every facet of Dr. Wong-Ngan’s opinion in the residual
functional capacity (RFC) because the ALJ is “responsible for translating and
incorporating clinical findings into a succinct RFC.” See Rounds v. Comm'r, Soc.
Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (citing Stubbs–Danielson v.
Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)). Moreover, the ALJ discounted parts
of Dr. Wong-Ngan’s opinion for valid reasons, and the RFC was properly based on
Dr. Wong-Ngan’s clinical findings, as well as other opinions and evidence in the
record. Bayliss v. Barnhart, 427 F.3d 1211, 1216-17 (9th Cir. 2005).
AFFIRMED.
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