Nikki Bowen v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIKKI N. BOWEN, No. 21-35600
Plaintiff-Appellant, D.C. No. 3:20-cv-05454-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 Tsuchida, Magistrate Judge, Presiding
Submitted June 7, 2022**
Portland, Oregon
Before: EBEL,*** W. FLETCHER, and CLIFTON, Circuit Judges.
Plaintiff-Appellant Nikki N. Bowen appeals from the district court’s order
affirming Defendant-Appellee Acting Commissioner of Social Security’s denial of
*
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 David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
her application for disability benefits. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We “review the district court’s order affirming the ALJ’s denial of social
security benefits de novo and will disturb the denial of benefits only if the decision
contains legal error or is not supported by substantial evidence.” Lambert v. Saul,
980 F.3d 1266, 1270 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d
1035, 1038 (9th Cir. 2008)). We affirm.
1. We conclude that the Administrative Law Judge (“ALJ”) properly
discounted Bowen’s symptom testimony. The ALJ offered three reasons, which the
district court recognized as meeting the “clear and convincing” standard.
The first reason that the ALJ discounted Bowen’s testimony was that the
record showed that Bowen engaged in activities demonstrating that she functioned
better than her testimony alleged. See 20 C.F.R. §§ 404.1529(c)(3)(i),
416.929(c)(3)(i) (permitting an ALJ to discount a claimant’s symptom testimony
when inconsistent with the claimant’s “daily activities”). In Morgan v.
Commissioner of the Social Security Administration, 169 F.3d 595, 600 (9th Cir.
1999), we upheld an ALJ decision stating that a claimant’s activities—preparing
meals, doing chores, and caring for a friend’s child—contradicted his symptom
testimony of concentration problems. Bowen engaged in more taxing activities and
alleged a greater level of incapacity than Morgan. She stated that she could not
reliably drive or perform household cleaning, but elsewhere she stated that she was
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able to maintain her home, drive, prepare meals, get her children ready for school,
and even complete online coursework “eight hours a day, every day” in 2012 and
2013 until her computer broke. See Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir.
2020) (“An ALJ may consider any work activity, including part-time work, in
determining whether a claimant is disabled. . . .”). At a 2016 hearing, Bowen
testified that she could work “[e]ight hours a day, five days a week[,] the way
normal people would.”
The second reason that the ALJ discounted Bowen’s testimony was that her
testimony was inconsistent with her medical records, including evidence
conflicting with the limitations that she alleged and showing that treatment, when
accepted by Bowen, helped her symptoms. See 20 C.F.R. §§ 404.1529(c)(3)(iv)-
(v), 416.929(c)(3)(iv)-(v); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001,
1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with
medication are not disabling for the purpose of determining eligibility for SSI
benefits.”). After surgery, Bowen reported “[d]oing extremely well” with “no
complaints” and stated that her new bag was “working well.” She also reported
having “no problems” with her bag and believing that she could work due to the
efficacy of her treatment regimen. When she had a malfunctioning bag replaced in
2015, she denied having gastrointestinal or abdominal issues. As the district court
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observed in a previous order, Bowen’s testimony when seeking benefits often
conflicted with her medical records.
The third reason that the ALJ discounted Bowen’s testimony was that
Bowen did not consistently self-administer her treatment, which we have
considered “powerful evidence” of the extent of symptoms. Burch v. Barnhart, 400
F.3d 676, 681 (9th Cir. 2005). Bowen testified in July 2013 that she had stopped
smoking tobacco in November 2012, but her medical records show otherwise. She
has conceded that she was told that “the effects of nicotine will almost completely
negate the therapeutic benefits” of her Crohn’s medication. She admitted
noncompliance with her medication schedule multiple times. Her
misunderstandings about her ailments do not provide an excuse for her
noncompliance with her treatment regimen; our case law has established that such
an excuse requires “medical evidence that [her] resistance was attributable” to her
ailment, which does not exist here. Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir.
2012), superseded on other grounds by 20 C.F.R. § 404.1502(a).
2. We conclude that substantial evidence supports the ALJ’s evaluation of
the medical opinions of the five doctors raised in Bowen’s opening brief.
With regard to Dr. West, the ALJ properly gave “some weight to Dr. West’s
opinion[,]” which was based in part “on [Bowen’s] own reports” and somewhat
inconsistent with “relatively normal physical findings on examination[.]” See
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Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (noting that an ALJ
may consider whether “a treating physician’s opinion . . . is based to a large extent
on a claimant’s self-reports that have been properly discounted as incredible”
(quotation marks omitted)). The ALJ properly afforded “little weight” to Dr.
West’s mention of a “comfortable chair” because “[h]is examination made no
findings regarding issues with discomfort si[t]ting, nor any impairments that might
cause discomfort sitting”; the ALJ also noted that “[n]o other medical examiner or
treatment provider noted issues with sitting or a basis for an especially equipped
chair.” See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (supporting the proposition
that an ALJ should afford more weight to an opinion supported by other medical
findings).
With regard to Dr. Liu, the ALJ properly gave “little weight” to Dr. Liu’s
opinion, which similarly conflicted with “relatively normal physical findings” that
suggest that Bowen “does not have the degree of limitation sitting that [Dr. Liu]
stated [after] examin[ing Bowen] just one time” and “accept[ing Bowen’s]
allegations of difficulty sitting even without sufficient objective support.”
Although Bowen claims that “there is no evidence that [Dr. Liu] based her opinion
primarily on Bowen’s allegations,” Bowen points to no evidence showing that the
record compels a contrary conclusion to the ALJ’s.
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With regard to Dr. Gaffield, the ALJ gave “some weight to Dr. Gaffield’s
opinion” and found that “[t]he most problematic part of [Dr. Gaffield’s] statement
is that he offered limitations sitting[,] . . . but he provide[d] no explanation for why
having a colostomy bag would prevent a person from sitting” and, thus, “that
portion of his statement [wa]s given little weight” by the ALJ. We reject Bowen’s
challenge to the ALJ’s weighing of Dr. Gaffield’s opinion for the same reasons as
those stated above with regard to Drs. West and Liu. Moreover, as Defendant
states, Dr. Gaffield’s limitations on sitting were “contradicted by other findings
that ‘the [ostomy] bag is intact’ and that she ‘got on and off the exam table without
difficulty.’”
With regard to Dr. Stevick, the ALJ properly gave significant weight to the
2012 opinion of non-examining Dr. Stevick, who opined that Bowen could
perform sedentary work with some postural and environmental limitations. See
Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (recognizing that non-
examining doctors’ opinions “can amount to substantial evidence” if supported by
other record evidence). The record does not compel us to conclude that the ALJ
erred in considering Dr. Stevick’s 2012 opinion supported by other record
evidence, some of which showed that Bowen’s Crohn’s symptoms improved after
treatment and that Bowen often exhibited normal examination findings and a lack
of gastrointestinal symptoms. We reject Bowen’s claim that the 2012 opinion
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should not have been afforded significant weight because it was made with
awareness of only some of the record because the ALJ explicitly stated that he
afforded significant weight partially due to the fact that the 2012 opinion was
consistent with subsequent evidence, as permitted by 20 C.F.R. §§ 404.1527(c)(4)
and 416.927(c)(4)’s references to “the record as a whole.”1
With regard to Dr. Peterson, the ALJ properly gave significant weight to the
opinion of Dr. Peterson, an examining psychologist who observed that Bowen’s
Crohn’s symptoms, “combined with her anxiety over [them,] would have a
significant impact on her ability to relate to coworkers or customers in the
workplace” but, as the district court noted, ultimately concluded that
“psychological symptoms did not prevent [Bowen] from [engaging in] gainful
activity[.]” We agree with Defendant that “Bowen does not allege any error in the
ALJ’s weighing of Dr. Peterson’s opinion,” so there is no factual finding
challenged on appeal. In any case, substantial evidence supports the ALJ’s
weighing of Dr. Peterson’s opinion, especially given that Dr. Peterson noted that
he was opining “[p]er the claimant’s report.”
1
Bowen’s challenge to the ALJ’s granting of “limited weight” to Dr. Stevick’s
2016 opinion does not support reversing the ALJ’s denial of benefits because
Bowen did not show that the 2016 opinion could have adversely impacted her. The
ALJ’s RFC ruling contained greater limitations than those that would be supported
by the 2016 opinion and reached an outcome that was more favorable to Bowen
than any that could have resulted from the 2016 opinion being given more weight.
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AFFIRMED.
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