Jessica Rames v. Kilolo Kijakazi ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSICA RAMES, No. 21-35009
Plaintiff-Appellant, D.C. No. 3:20-cv-05033-DWC
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
David W. Christel, Magistrate Judge, Presiding
Submitted November 17, 2021**
Pasadena, California
Before: BYBEE and BENNETT, Circuit Judges, and BATAILLON,*** District
Judge.
*
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).
***
The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
Jessica Rames appeals the district court’s judgment affirming the denial of
supplemental security income by the Commissioner of the Social Security
Administration (“SSA”). We affirm. Because the parties are familiar with the facts,
we do not recount them here, except as necessary to provide context to our ruling.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the
district court’s decision and “independently determine whether the Commissioner’s
decision (1) is free of legal error and (2) is supported by substantial evidence.”
Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). However, we may not reverse
an Administrative Law Judge (“ALJ”) if, despite error, “the ALJ’s remaining
reasoning and ultimate credibility determination were adequately supported by
substantial evidence in the record.” Carmickle v. Comm’r, Soc. Sec. Admin., 533
F.3d 1155, 1162 (9th Cir. 2008); see also Ludwig v. Astrue, 681 F.3d 1047, 1054
(9th Cir. 2012) (“Reversal on account of error is not automatic, but requires a
determination of prejudice.”). “Even when the evidence is susceptible to more than
one rational interpretation, we must uphold the ALJ’s findings if they are supported
by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012), superseded by regulation on other grounds.
1. Rames argues that the ALJ failed to provide clear and convincing
reasons for rejecting Rames’s symptom and pain testimony. Pursuant to the SSA’s
five-step process for determining whether a claimant is disabled, ALJs must
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determine whether a claimant has severe medical impairments, how limiting any
impairments are, and the claimant’s residual functional capacity (“RFC”). 20 C.F.R.
§§ 404.1520; 416.945. Rames alleged, among other things, that she could not stand
for more than fifteen to twenty minutes at a time, that she had been unable to leave
her house alone for “almost six years,” and that she suffered double vision secondary
to migraines. The ALJ found that Rames had several medically determinable
impairments including spine degenerative disc disease, pseudotumor cerebri, and
post-traumatic stress disorder (“PTSD”). However, the ALJ also found that these
physical and mental conditions were not as limiting as Rames alleged, citing, for
example, evidence that Rames went camping and fishing, took online GED courses,
and conducted various activities of daily life such as cooking simple meals. The
ALJ also cited evidence of Rames’s failure to take certain prescribed medication and
her failure to see a neurologist until 2017 despite multiple referrals.
In discounting Rames’s testimony, the ALJ may have made two errors. But
we find any such errors were harmless. The ALJ found that Rames “exaggerated
her . . . pain symptoms to obtain opiates,” citing evidence that Rames’s “primary
care provider expressed concern about [Rames’s] frequent ER visits and drug
seeking behavior.” Rames argues that this finding was in error because a Social
Security Ruling prohibits general credibility findings. SSR 16-3p, 2017 WL
5180304, at *11 (Oct. 25, 2017). Even if this finding was in error, any error was
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harmless because the ALJ’s discounting of Rames’s symptom and pain testimony
on other grounds is well-supported by substantial evidence in the record.
Rames also disputed the ALJ’s finding that her symptoms were “managed
effectively with only conservative treatment, in particular only medications” because
her treatments for pseudotumor cerebri included lumbar punctures—a procedure in
which “a needle is inserted between two lumbar vertebrae to remove a sample of
cerebrospinal fluid.” Although Rames’s treatments may not have consisted entirely
of medication, this does not disturb the ALJ’s finding, supported by the record, that
Rames’s treatments consisted mostly of medications and were generally
conservative and effective.
Thus, the ALJ’s findings regarding Rames’s symptom and pain testimony
were supported by substantial evidence, and any errors were harmless.
2. Rames argues that the ALJ erred in discounting source opinions
regarding her alleged mental limitations. “[W]hen it is an examining physician’s
opinion that the ALJ has rejected in reliance on the testimony of a nonexamining
advisor, reports of the nonexamining advisor need not be discounted and may serve
as substantial evidence when they are supported by other evidence in the record and
are consistent with it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)
(emphasis omitted). As for opinions from other sources such as nurse practitioners
and counselors, “[t]he ALJ may discount testimony from these other sources if the
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ALJ gives reasons germane to each witness for doing so.” Dale v. Colvin, 823 F.3d
941, 943 (9th Cir. 2016) (citations and internal quotation marks omitted).
Dr. Terilee Wingate “opined that [Rames] has marked limitations with
performing activities within a schedule, maintaining regular attendance, being
punctual within customary tolerances without special supervision, and completing a
normal workday/workweek without interruptions from psychologically based
symptoms.” Mental health counselors Kelly Kimbel and Judith Oliver similarly
opined that Rames has marked to severe limitations in working with others and
maintaining a schedule. The ALJ discounted these opinions because they were
inconsistent with Rames’s outward mood and affect outside of examinations,
Rames’s ability to complete various activities of daily living on her own, and
Rames’s statements about the effectiveness of mental health treatments. These
opinions were also contradicted by opinions from non-examining physicians.
The ALJ thus did not err in discounting the opinions of Dr. Wingate and other
source opinions regarding Rames’s alleged mental limitations.
3. Rames argues that the ALJ erred in discounting source opinions
regarding her alleged physical limitations. Nurse practitioner Nancy Armstrong
opined that Rames was “severely limited and unable to perform the demands of even
sedentary level work.” Similarly, nurse practitioner Megan Colburn opined that
“work on a regular and continuous basis will cause the claimant’s spine condition to
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deteriorate.” The ALJ discounted both opinions, citing among others the fact that
Rames was able to ambulate without a cane with a normal gait in multiple encounters
with treatment providers, unremarkable results from various imaging studies,
Rames’s past full-time work as a crab shaker despite her chronic conditions, and the
fact that Rames conducted various activities such as camping, fishing, taking GED
classes online, and babysitting. The ALJ also cited medical evidence indicating no
change in the appearance of Rames’s disc protrusion between November 1, 2016
and July 19, 2017.
Therefore, the ALJ did not err in discounting other source opinions regarding
Rames’s alleged physical limitations.
4. Rames argues that the ALJ erred in finding that she could perform the
jobs recommended by the vocational expert (“VE”). The VE first testified that a
hypothetical individual with the restrictions propounded by the ALJ could perform
two jobs that are in significant numbers in the national economy. However, after
Rames’s counsel added a visual impairment to the individual described by the ALJ,
the VE testified that this individual could not perform the jobs he identified to the
ALJ. The ALJ characterized the VE’s testimony as indicating that a hypothetical
individual with Rames’s RFC and other limiting factors could perform two
categories of jobs that exist in significant numbers in the national economy.
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This finding was not in error because the ALJ need not “accept as true the
restrictions presented in a hypothetical question propounded by a claimant’s counsel
. . . ‘as long as [the rejections] are supported by substantial evidence.’” Magallanes
v. Bowen, 881 F.2d 747, 756–57 (9th Cir. 1989) (quoting Martinez v. Heckler, 807
F.2d 771, 774 (9th Cir. 1986)). Rames alleges a visual impairment that is secondary
to migraines caused by pseudotumor cerebri. But the ALJ need not accept this
restriction if the ALJ’s discounting of the alleged severity of Rames’s migraines is
supported by substantial evidence. Here, the ALJ’s discounting of the alleged
severity of Rames’s migraines and pain was supported by substantial evidence. For
example, Rames failed to take certain medication prescribed for her migraines, failed
to see a neurologist until 2017 despite multiple referrals, and conducted various
activities of daily living on her own.
AFFIRMED.
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