Susie Garza v. Kilolo Kijakazi ( 2021 )

NOT FOR PUBLICATION FILED
AUG 23 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSIE GARZA, No. 18-15197
Plaintiff-Appellant, D.C. No. 2:16-cv-01706-KJN
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kendall J. Newman, Magistrate Judge, Presiding
Submitted August 19, 2021**
Before: GOODWIN, CANBY, and SILVERMAN, Circuit Judges.
Susie Garza appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Garza’s application for supplemental
social security income under Title XVI of the Social Security Act. We have
jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo,
*
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).
Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.
At step two, the Administrative Law Judge (“ALJ”) properly applied the
special technique for evaluating mental impairments in concluding that Garza’s
depression was not a severe impairment. See 20 C.F.R. § 404.1520a; Keyser v.
Comm'r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011). Substantial evidence
supports the ALJ’s conclusion that Garza’s depression was not severe because the
record reflected limited treatment, normal mental status exams, and that her
depression was in full remission. See 20 C.F.R. § 404.1520a(d)(1); Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (this court “must uphold the ALJ’s
findings if they are supported by inferences reasonably drawn from the record”).
Moreover, the ALJ properly considered the four broad functional areas, finding
that Garza’s medically determinable mental impairment caused no restrictions in
activities of daily living; no limitations in social functioning; mild limitations in
concentration, persistence, and pace; and no episodes of decompensation of
extended duration. See Keyser, 648 F.3d at 725.
At step three, substantial evidence supports the ALJ’s conclusion that Garza
failed to meet her burden of proving that she has an impairment that meets or
equals Listing 11.04, vascular insult to the brain. See Burch v. Barnhart, 400 F.3d
676, 683 (9th Cir. 2005) (claimant bears the burden of proving that he has an
impairment that meets or equals the criteria of a listed impairment). The ALJ
2
properly relied on medical evidence indicating that Garza’s disturbed gross and
dexterous movements, or gait and station, occurred only intermittently and did not
appear for significant portions of the adjudicatory period.
The ALJ properly relied on the vocational expert’s testimony indicating that
Garza was capable of making a successful adjustment to other work that exists in
significant numbers in the national economy. See Bayliss v. Barnhart, 427 F.3d
1211, 1217–18 (9th Cir. 2005) (ALJ may properly limit a hypothetical to
restrictions supported by substantial evidence in the record). First, the ALJ’s
questions to the vocational expert properly took into account Garza’s limited
education and skills, and the ALJ was not required to include in his hypothetical
limitations that he did not adopt. See id. Second, the ALJ did not err in failing to
address the borderline age category because Garza was not in a borderline age
category on the date of the ALJ’s decision. See Russell v. Bowen, 856 F.2d 81, 84
(9th Cir. 1988) (rejecting petitioner’s argument that the date the Appeals Council
denied review should determine whether he was in a borderline age category).
Finally, the ALJ did not err in limiting Garza’s residual functional capacity to
occasionally handle, finger, or feel with her left upper extremity, because that
limitation is consistent with Dr. Sharma’s assessment that she was limited in
“holding, feeling, and fingering objects with the left hand to occasionally.”
3
Garza waived any challenge to the ALJ’s determination that her testimony
was not entirely credible and to the ALJ’s evaluation of the medical opinion
evidence by failing to raise them in her opening brief. See Indep. Towers of Wash.
v. Washington, 350 F.3d 925, 929-30 (9th Cir. 2003) (“we review only issues
which are argued specifically and distinctly in a party’s opening brief”) (citation
and internal quotation marks omitted).
AFFIRMED.
4