Robert Palacio v. Kilolo Kijakazi ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT ALAN PALACIO, No. 19-55219
Plaintiff-Appellant, D.C. No. 2:17-cv-05378-DFM
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Douglas F. McCormick, Magistrate Judge, Presiding
Submitted October 4, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges.
Robert Palacio appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of his application for disability insurance
benefits under Title II of the Social Security Act. This court reviews 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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s order sustaining the denial of benefits de novo. Brown-Hunter v. Colvin, 806
F.3d 487, 492 (9th Cir. 2015). This court may set aside the administrative law
judge’s (“ALJ”) denial of benefits “only if it is not supported by substantial evidence
or is based on legal error.” Id. (quoting Treichler v. Comm’r of Soc. Sec. Admin.,
775 F.3d 1090, 1098 (9th Cir. 2014)).
The ALJ provided specific and legitimate reasons for giving little weight to
the opinions of Palacio’s treating physicians, Dr. Grossman, Dr. Vahedifar, and Dr.
Garb. First, the ALJ reasonably concluded that Dr. Grossman’s July 2014 medical
source statement—that Palacio was only capable of light work—was inconsistent
with consultative examinations conducted the prior month by Dr. Tashakkor and Dr.
Rubaum, who both found that Palacio could perform medium work. In addition, the
ALJ reasonably found that Dr. Grossman’s assessment was inconsistent with Dr.
Levesque’s June 2014 examination notes indicating that Palacio had minimal back
pain and a normal neurological examination. See Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (holding that an inconsistency between
a physician’s opinion and the medical evidence is a specific and legitimate reason
for rejecting the physician’s opinion). Second, the ALJ provided a specific and
legitimate reason for giving little weight to Dr. Garb’s and Dr. Vahedifar’s March
2016 opinions. Dr. Garb concluded that Palacio could lift no weight, and could sit,
walk, and stand less than one hour per workday; and Dr. Vahedifar concluded that
2
Palacio had debilitating back pain and similar physical limitations. The ALJ
reasonably concluded that their assessments were “extreme” and “wholly
inconsistent” with Palacio’s contemporaneous March 2016 questionnaire where he
reported that his pain level was 2.5 or 3 out of 10. See Rollins v. Massanari, 261
F.3d 853, 856 (9th Cir. 2001) (holding that an ALJ properly discounted a treating
physician’s opinion as being “so extreme as to be implausible”). Finally, contrary
to Palacio’s argument, the ALJ did not err in declining to specifically reference Dr.
Levesque’s November 2014 medical source statement, which did not contain a
functionality assessment. The ALJ referenced other records from Dr. Levesque and
did not implicitly discredit his opinion. See Howard ex rel. Wolff v. Barnhart, 341
F.3d 1006, 1012 (9th Cir. 2003) (holding that an “ALJ is not required to discuss
evidence that is neither significant nor probative”).
The ALJ provided specific clear and convincing reasons for discounting
Palacio’s testimony that he was totally disabled by back impairments and pain. First,
the ALJ reasonably found that Palacio’s daily activities were inconsistent with his
own testimony that he had debilitating back pain. This is a specific clear and
convincing reason. See Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014)
(holding that daily activities that are inconsistent with the purported severity of
symptoms supports an adverse credibility determination). Second, the ALJ
reasonably concluded that Palacio’s testimony was not supported by the medical
3
evidence. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding that
an ALJ can consider the lack of supportive medical evidence as one factor in its
credibility analysis).
AFFIRMED.
4