Charissa Wilson v. Kilolo Kijakazi ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARISSA DAWN WILSON, No. 19-17204
Plaintiff-Appellant, D.C. No. 4:18-cv-00150-EJM
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Eric J. Markovich, Magistrate Judge, Presiding
Submitted October 7, 2021**
Before: THOMAS, Chief Judge; HAWKINS and McKEOWN, Circuit Judges.
Charissa Dawn Wilson appeals pro se the district court’s affirmance of the
Commissioner of Social Security’s denial of her application for Supplemental
Security Income benefits under Title XVI of the Social Security Act. 28 U.S.C.
*
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).
§ 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. (citation omitted). We affirm.
Contrary to Wilson’s contention, the ALJ considered all her alleged
impairments at step two of the analysis. By definition, an impairment is “severe”
at step two if it “it significantly limits the claimant's ‘physical or mental ability to
do basic work activities.’” Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020)
(citing 20 C.F.R. § 404.1522(a)). Substantial evidence supports the ALJ’s analysis
of Wilson’s impairments in light of this standard and the medical record.
Substantial evidence also supports the ALJ’s conclusion at step three that
none of Wilson’s severe impairments met or medically equaled a listing. Wilson
points to the diagnoses she has received, but “the ALJ ‘will not consider your
impairment to be one listed in Appendix 1 solely because it has the diagnosis of a
listed impairment. It must also have the findings shown in the Listing of that
impairment.” Key v. Heckler, 754 F.2d 1549–50 (9th Cir. 1985) (citing with
emphasis 20 C.F.R. § 404.1525(d)). Wilson does not challenge the ALJ’s
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conclusion that the relevant mandatory findings were not satisfied.
Wilson’s claim that the ALJ ignored “medical opinions” is not supported by
the record. Wilson’s treatment records offered diagnoses and clinical findings, but
none of Wilson’s treating sources provided an opinion that contained the relevant
assessment of her limitations and restrictions. The only opinions in the record
were those of the state agency doctors who reviewed Wilson’s records, and the
psychologist who performed a consultative examination. Substantial evidence
supports the ALJ’s decision to give these opinions – none of which found a need
for significant work restrictions – some weight in determining Wilson’s residual
functional capacity.
Wilson also argues that the ALJ wrongfully ignored the testimony of the
vocational expert who, responding to Wilson’s own hypothetical, opined that
someone who needed frequent breaks amounting to half a day, and who missed a
week of work each month, could not find competitive employment. An ALJ “is
free to accept or reject restrictions in a hypothetical question that are not supported
by substantial evidence.” Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006)
(citation omitted). Because the medical record did not provide substantial
evidence in support of these limitations, the ALJ was free to ignore the testimony
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based on them. See Magallanes v. Bowen, 881 F.2d 747, 756–57 (9th Cir. 1989)
(“The ALJ is not bound to accept as true the restrictions presented in a hypothetical
question propounded by [claimant].”)
Wilson claims that the ALJ did not develop the record with respect to her
mental health conditions because nothing was done after she provided the agency
with a one-page list of her new provider’s diagnostic codes. But Wilson took no
action to assure that records from her new provider were produced, despite being
asked repeatedly about new evidence. An ALJ’s duty to develop the record is
triggered “only when there is ambiguous evidence or when the record is inadequate
to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001). Even if the ALJ had received the diagnostic codes,
they would not have created an ambiguity or conflict with the other mental health
evidence in the record. Accordingly, Wilson’s “Motion for Adverse Inference”
(Docket No. 7) is denied.
We do not reach Wilson’s claim that she is entitled to Child Disability
Insurance Benefits under Title II of the Social Security. This claim is waived
because Wilson did not meaningfully raise it before the district court, see Ford,
950 F.3d at 1158 n.12, and because the record contains no medical evidence
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concerning Wilson’s limitations prior to age 22.
AFFIRMED.
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