Angelique Smith v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGELIQUE SMITH, No. 21-35652
Plaintiff-Appellant, D.C. No. 4:20-cv-05096-EFS
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted July 7, 2022**
Seattle, Washington
Before: CLIFTON and BUMATAY, Circuit Judges, and SEEBORG, ***
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 Richard Seeborg, Chief United States District Judge
for the Northern District of California, sitting by designation.
Angelique Smith appeals the district court’s order affirming the Social
Security Commissioner’s denial of her application for disability insurance benefits
under Title II of the Social Security Act. We review the district court’s order de novo
and reverse only if the ALJ’s decision was not supported by substantial evidence or
if the ALJ applied the wrong legal standard. Rounds v. Comm’r Soc. Sec. Admin.,
807 F.3d 996, 1002 (9th Cir. 2015). We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. Substantial evidence supports the ALJ’s weighing of Drs. Marks, Dowell,
Smiley and Kraft’s opinions. The ALJ gave Dr. Marks’s opinion little weight
because it had internal inconsistencies. For example, Dr. Marks found that Smith
had marked learning limitations in one part, but “no significant learning problems”
in another. Inconsistencies are “specific and legitimate” reasons for rejecting an
opinion. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
The ALJ adequately incorporated Dr. Dowell’s recommendations into the
Residual Functional Capacity (“RFC”). See Rounds, 807 F.3d at 1006 (the ALJ does
not ignore findings if they are incorporated into the RFC). For example, Dr. Dowell
opined that Smith would have minimal difficulty interacting with coworkers, and the
ALJ exceeded that recommendation by limiting Smith’s RFC to “superficial”
relationships and “no teamwork.”
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The ALJ rejected Dr. Smiley’s opinion that Smith would have two
unscheduled absences per month. The ALJ discounted that finding because it was
speculative and it was inconsistent with Dr. Smiley’s previous conclusion that Smith
had mild-to-moderate limitations and with the longitudinal medical records,
including Smith’s intermittent treatment. See Sousa v. Callahan, 143 F.3d 1240,
1244 (9th Cir. 1998) (the ALJ may reject a physician’s opinion by referring to
specific medical evidence).
Further, the ALJ incorporated Dr. Kraft’s findings in the RFC. But Smith
argues that the ALJ did not account for Dr. Kraft’s opinion that she needed
“reasonable rest breaks” in the RFC. The ALJ, however, noted that Smith needed
“regularly scheduled breaks” in the RFC. Smith contends Kraft’s opinion meant that
she needed two unscheduled 30-minute breaks, which the vocational expert testified
precludes competitive employment. But nothing compels that conclusion that Dr.
Kraft’s opinion about “reasonable rest breaks” equates to unscheduled 30-minute
breaks. In sum, substantial evidence supports the ALJ’s weight distribution to the
foregoing opinions.
2. The ALJ did not discuss Smith’s fibromyalgia in conjunction with her other
impairments, but any error was harmless because Smith did not meet her initial
burden of presenting objective medical evidence to support her claim that she meets
the Listing 14.09D, or another listing. See Burch v. Barnhart, 400 F.3d 676, 683 (9th
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Cir. 2005) (claimant bears the burden of proving that her impairment meets or equals
the criteria of an impairment listing); Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir.
2001) (the ALJ did not discuss claimant’s combined impairments but found the error
harmless because claimant offered no objective evidence to support the claim). So,
it was not reversible error for the ALJ not to discuss Smith’s fibromyalgia
equivalence in combination with other impairments.
3. Based on the vocational expert’s testimony, the ALJ determined at step five
that Smith is not disabled and is capable to work other jobs within the national
economy. Because the “hypothetical that the ALJ posed to the [vocational expert]
contained all of the limitations that the ALJ found credible and supported by
substantial evidence in the record,” the “ALJ’s reliance on testimony the [vocational
expert] gave in response to the hypothetical therefore was proper.” See Bayliss v.
Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (citation omitted).
AFFIRMED.
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