Martin Schiaffino v. Kilolo Kijakazi

FILED
NOT FOR PUBLICATION
MAY 1 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN SCHIAFFINO, No. 22-35288
Plaintiff-Appellant, D.C. No. 3:21-cv-05231-BAT
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian A. Tsuchida, Magistrate Judge, Presiding
Argued and Submitted February 14, 2023
Seattle, Washington
Before: PAEZ and VANDYKE, Circuit Judges, and LIBURDI,** District Judge.
Dissent by Judge PAEZ.
Martin Schiaffino appeals the district court’s affirmation of the denial of his
application for disability benefits. He contends the ALJ who denied those benefits
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael T. Liburdi, United States District Judge for the District of
Arizona, sitting by designation.
improperly discounted (1) his testimony, (2) lay witnesses’ statements, (3) the
supportive opinion of an examining physician, and (4) a disability determination by
the Veterans Administration. He further contends the ALJ miscalculated his residual
functional capacity (RFC) by not giving greater weight to limitations found only in
those discounted sources. He lastly contends this is an extraordinary case where we
can remand for an award of benefits. We have jurisdiction under 28 U.S.C. § 1291,
and we deny the appeal.
Martin Schiaffino is a college-educated veteran who was continuously
employed, often as a manager, during the first years after he transitioned into civilian
life. When he lost his job at a home improvement store in 2015, he conducted a
wide-ranging job search and swore on his application for unemployment benefits
that he was ready and able to take any job offered. But three months into that job
search, he applied for social security income and disability insurance benefits
(SSDI). In his application, he swore he had been unable to work any job during the
preceding months because of mental and physical disabilities including PTSD and
diabetes mellitis.
The Social Security Administration denied him SSDI. The district court
affirmed, but our court in 2020 remanded for the agency to further develop the record
and reconsider Schiaffino’s application.
The agency added approximately 1,700 pages of medical documentation to
2
Schiaffino’s administrative record before a different ALJ reheard the case. That
second ALJ again denied benefits. The district court affirmed on appeal, and
Schiaffino now appeals to us.
We review a district court’s judgment affirming the agency’s denial of SSDI
de novo, and we “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) (quotation omitted). Substantial evidence is such “relevant
evidence” as “a reasonable mind might accept as adequate to support a conclusion.”
Farlow v. Kijakazi, 53 F.4th 485, 487–88 (9th Cir. 2022) (quotation omitted). If the
evidence in the record “is susceptible to more than one rational interpretation,” the
ALJ’s conclusion “must be upheld.” Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir.
2022) (internal quotation marks and citation omitted).
To determine whether a claimant is disabled within the meaning of the Social
Security Act, an ALJ must follow a prescribed five-step analysis. See 20 C.F.R.
§ 404.1520. In the first four steps, the ALJ determines whether the claimant has a
disability that is “severe enough to prevent [him] from doing a gainful activity” and
whether the claimant retains sufficient RFC to perform any job he’s done in the past
15 years. 20 C.F.R. § 404.1520(a)(4)(iii), (e); 20 C.F.R. § 404.1525(a); 20 C.F.R.
§ 404.1560(b)(1). If he cannot, the burden shifts to the agency to prove he can
perform “a significant number of other jobs in the national economy.” White v.
3
Kijakazi, 44 F.4th 828, 833–34 (9th Cir. 2022); see 20 C.F.R. § 416.960(c)(2).
If the claimant testifies and provides corroborating medical evidence for his
testimony and there is no evidence of malingering, the ALJ can reject his testimony
only by offering “specific, clear, and convincing reasons for doing so.” Garrison v.
Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). If the claimant offers a lay witness to
corroborate his testimony, the ALJ must take that testimony into account unless “she
expressly determines to disregard [it] and gives reasons germane to each witness for
doing so.” Diedrich v. Berryhill, 874 F.3d 634, 640–41 (9th Cir. 2017) (internal
quotation marks and citation omitted). An ALJ must evaluate all opinions a claimant
offers from a medical professional. 20 C.F.R. § 404.1527(c). If those opinions
contradict each other, she ultimately is “the final arbiter” with respect to “resolving
ambiguities in the medical evidence.” Smartt, 53 F.4th at 494.
In cases that involve veterans who have also applied for disability through the
VA, an ALJ similarly must at least consider a VA determination of disability during
her own review of the record and “must ordinarily give [it] great weight.” Luther v.
Berryhill, 891 F.3d 872, 876 (9th Cir. 2018) (quotations omitted). But a VA
disability determination is not dispositive. Valentine v. Comm’r of Soc. Sec. Admin,
574 F.3d 685, 695 (9th Cir. 2009) (quotation omitted). An “ALJ is not compelled
to adopt the conclusions of the VA’s decisions wholesale,” but may deviate from
final VA determinations upon “contrary evidence that is ‘persuasive, specific, valid’
4
and supported by the record.” Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012)
(quoting McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002)).
Schiaffino argues the ALJ improperly rejected parts of his testimony about his
symptoms as inconsistent with his medical record without offering any specific,
clear, and convincing reason. But the ALJ provided such reasons. She chronicled
his course of treatment from 2011 to 2020—considering and discussing individual
treatment notes across years of Schiaffino’s mental health exams—to draw from
them a conclusion that the course of treatment was consistent with milder symptoms
than his testimony suggests. And she surveyed the activities Schiaffino had been
involved in since the alleged onset of his disability and found them dissonant with
his testimony. Collectively, those considerations offer “such relevant evidence as a
reasonable mind might accept as adequate to support” the ALJ’s conclusion that
Schiaffino’s symptoms were milder than he claimed. Smartt, 53 F.4th at 494
(quotation omitted); see also Smith, 14 F.4th at 1113.
Schiaffino similarly argues that the ALJ committed error in failing to list his
obsessive compulsive disorder as a severe impairment. But an ALJ’s failure to
identify every severe impairment at step two is not reversable error provided the ALJ
considers all an individual’s impairments—even those that are not severe—in
assessing the RFC. See Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017)
(explaining that step two “is not meant to identify the impairments that should be
5
taken into account when determining the RFC”). In making her RFC findings, the
ALJ explicitly listed Schiaffino’s “obsessive behavior” before explaining why the
inconsistencies in the medical record undermined the weight that could be given to
his symptom testimony. Having specifically taken his obsessive behavior into
account, any alleged error in failing to characterize Schiaffino’s obsessive
compulsive disorder as “severe” did not affect the ALJ’s overall RFC assessment.
See id. at 1049 (stating that RFC “should be exactly the same regardless of whether
certain impairments are considered ‘severe’ or not”) (emphasis omitted).1
Schiaffino further argues the ALJ impermissibly discounted his lay witnesses’
statements. But that argument fails because his manager and wife both offered
testimony substantially similar to his. That similarity meant the ALJ could discount
their statements to the extent she discounted his similar statements. Valentine, 574
1
The dissent “would remand because the ALJ failed to take into account the
limitations caused by Schiaffino’s obsessive compulsive disorder,” specifically, his
compulsive handwashing. Respectfully, the record belies the notion that the ALJ
failed to take Schiaffino’s obsessive behavior into account: she in fact refers to it in
her analysis before concluding that (1) the “overall record does not establish” that
Schiaffino’s disabilities qualify as a severe disability under 20 C.F.R.
§ 404.1567a(c); and (2) Schiaffino retains residual functional capacity to hold
certain jobs.
What the dissent ultimately disagrees with is the weight the ALJ gave this obsessive
behavior in her analysis. But even if the evidence in the record “is susceptible to
more than one rational interpretation,” Woods, 32 F.4th at 788, it is well-settled that
we cannot simply second guess the weight an ALJ gives to individual factors in her
RFC analysis. Instead, we must review the RFC finding for substantial evidence.
Farlow at 487–88.
6
F.3d at 694.
Schiaffino also argues the ALJ improperly discounted his examining
physician’s opinion. But his position is contrary to our precedent regarding the
ALJ’s power to weigh medical professionals’ testimony. Provided an ALJ evaluates
all the medical opinions in the administrative record and provides “specific and
legitimate reasons” for her choices, she is the final arbiter of how much relative
weight to give opinions that are in tension with or contradict each other. Smartt, 53
F.4th at 494; see 20 C.F.R. § 404.1527(c). Here, the ALJ incorporated into her RFC
those parts of that examining physician’s report—both those favorable to and those
adverse to a disability finding—that were consistent with Schiaffino’s subsequent
medical records. Only those parts of the physician’s assessment that conflicted with
four other medical opinions, the medical records, and Schiaffino’s activities were
discounted.
Schiaffino argues the ALJ also improperly discounted the VA’s disability
determination. But an examination of the decision compels the opposite conclusion.
The ALJ noted that the VA determination was inconsistent with objective findings
in Schiaffino’s medical records. That included material facts such as his mental
state, demeanor, cognition, and communication skills. The ALJ’s decision discussed
an additional five years of medical treatment records that were necessarily
unavailable to the VA when it rendered its decision in June of 2015. With this
7
expanded treatment history, the ALJ arrived at a conclusion contrary to the VA’s.
See Valentine, 574 F.3d at 695 (reasoning an “ALJ was justified in rejecting the
VA’s disability rating on the basis that she had evidence the VA did not”). And by
noting the above inconsistencies, the ALJ’s decision provided “persuasive, specific,
valid reasons” for discounting the VA’s disability rating. McCartey, 298 F.3d at
1076.
The dissent deems the ALJ’s analysis nonetheless insufficient because, in the
dissent’s view, it does not remedy two analytical errors a prior panel of our court
instructed the agency to fix when the case last was before us. See Schiaffino v. Saul,
799 Fed. App’x 473 (9th Cir. 2020). First, the agency was instructed not to reject
the VA disability determination without analysis simply because VA and Social
Security proceedings impose different evidentiary burdens for establishing
disability. Saul, 799 Fed. App’x at 476. Second, the agency was instructed not to
simply assume that some of Schiaffino’s energetic leisure activities—such as four
wheeling, shooting a gun, and taking a trip to Disneyland—show that he has
capacities transferrable to a work setting. Id.Respectfully, the dissent appears to misread either the prior panel decision or
the second ALJ’s analysis of the VA disability determination, which in fact
responded to our prior panel’s concerns and complied with its instructions.
Responsive to the prior panel’s first instruction, the second ALJ explained how she
8
had “independently weighed all of the evidence, including the evidence from the
claimant’s VA doctors, and arrived at a different conclusion than the VA did.” That
different conclusion arose not simply because the Social Security evidentiary
standard is more demanding but because of an “inconsistency between the objective
findings in the claimant’s treatment record and the subjective asserted degree of
limitation.” The ALJ on remand then drilled down into a list of specifics showing
that “objective medical evidence as a whole” is inconsistent with the VA’s
conclusion that Schiaffino is “unable to perform sufficient basic tasks to perform
any work at all.”
The ALJ also, in response to our prior panel’s instructions, explained how
Schiaffino’s diverse and demanding leisure activities are inconsistent with his
“asserted extreme level of limitation.” The ALJ reviewed “most exams performed
since the claimant’s alleged onset date,” which other parts of the ALJ’s decision
make clear included review of medical treatment notes and exams that postdate
remand of the case. And she concluded from them that Schiaffino, the VA’s
disability determination notwithstanding, had “had an alert and oriented mental state,
cooperative demeanor, good eye contact, a linear and goal-directed thought process,
grossly intact cognition, normal speech, normal psychomotor activity, fair insight
and judgment, and no perceptual abnormalities.” The ALJ on remand then discussed
how Schiaffino’s diverse leisure activities “furthermore” provide concrete
9
illustrations of how those residual functional capacities manifest themselves in his
life since he filed for benefits.
Schiaffino’s final merits argument—that the ALJ’s decision lacks substantial
evidence in support of her RFC calculation—is derivative and duplicative of his
arguments about how the ALJ considered and weighed the medical opinions. It fails
in tandem with those arguments as discussed above. Similarly, because we reject
Schiaffino’s other arguments, we necessarily reject his argument that we should
remand to the ALJ with instructions to award him the SSDI benefits he seeks.
We therefore AFFIRM the district court and DENY Schiaffino’s request for
an immediate award of disability benefits.
10
FILED
Schiaffino v. Kijakazi, No. 22-35288 MAY 1 2023
MOLLY C. DWYER, CLERK
Paez, J., dissenting: U.S. COURT OF APPEALS
I respectfully dissent. Because the ALJ’s decision is inconsistent with our
precedent and with the specific law of this case, I would reverse and remand for
further proceedings before the ALJ. There are two critical reasons, which I discuss
below, why I cannot join the majority’s decision to affirm.
First, I would remand because the ALJ failed to take into account the
limitations caused by Schiaffino’s obsessive compulsive disorder (“OCD”) in the
RFC analysis. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (quoting
SSAR 96-8p, 61 Fed. Reg. 34474, 34477 (July 2, 1996)) (“[I]n assessing RFC, the
adjudicator must consider limitations and restrictions imposed by all of an
individual’s impairments, even those that are not ‘severe.’”). Although the
majority argues that this failure did not affect the ALJ’s overall RFC assessment, I
do not agree with that reading of the record. It is uncontroverted that Schiaffino’s
OCD symptoms led him to wash his hands 30 or 40 times a day, including every
time he touched a doorknob, opened a drawer, or touched something someone else
had touched. This affliction caused problems at Schiaffino’s last job because he
had to take such frequent breaks. At the administrative hearing, the vocational
expert agreed that Schiaffino’s handwashing would impact his ability to “sustain a
competitive job,” including the jobs that she claimed were consistent with his
limitations.
The ALJ’s decision does not address or acknowledge the problems caused by
Schiaffino’s frequent handwashing after concluding that this limitation was not
severe. Instead, the ALJ claimed that Schiaffino’s ability to “take care of his own
personal hygiene without reminders” cut against his asserted degree of limitation.
Without providing any reasons to discount Schiaffino’s OCD symptoms, these
symptoms should have been considered in the RFC assessment. See Buck, 869
F.3d at 1049; Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (quoting
SSAR 96-8p, 61 Fed. Reg. at 34478) (“The RFC assessment must ‘[c]ontain a
thorough discussion and analysis of the objective medical and other evidence,
including the individual’s complaints of pain and other symptoms.’”)
Second, I would remand because the ALJ failed to heed the instructions that
we outlined the last time this case was before us. See Schiaffino v. Saul (Schiaffino
I), 799 Fed. App’x 473 (9th Cir. 2020). In particular, the ALJ again improperly
discounted the VA’s disability determination by relying on the very same activities
we explained were “not ‘persuasive, specific, valid reasons for’ discounting the VA
disability rating,” id. at 477 (quoting McCartey v. Massanari, 298 F.3d 1072, 1076
(9th Cir. 2002), because “they do not show capacities transferrable to a work
setting.” Id. at 476. These activities include the Disneyland trip, shooting a
weapon, and other solitary activities. See id. at 477.
Contrary to the majority’s suggestion, the ALJ did not rely on the additional
medical records when she discounted the VA’s disability determination. Instead,
the ALJ ignored the VA’s disability finding because the VA’s regulations “resolve
reasonable doubt in the claimant’s favor, . . . which the SSA does not do.” But
there is no indication in the record that the VA found Schiaffino’s application for
benefits to be a close case and thus resolved all doubt in his favor. The fact that the
Social Security regulations are different than the VA’s regulations does not
constitute a “persuasive, specific, valid reason” to discount the VA’s disability
determination and is not an appropriate basis for an ALJ to ignore the “great
weight” that must be given to that determination. See McCartey, 298 F.3d at 1076.
As we said in our prior disposition, these “errors are not harmless.”
Schiaffino I, 799 Fed. App’x at 477. “The ALJ’s assessment of Schiaffino’s
residual functional capacity . . . may well change once” his limitations are properly
considered and “the VA’s disability determination is given proper weight.” Id.Accordingly, I would reverse and remand for further proceedings.