David Walters v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION
FILED
UNITED STATES COURT OF APPEALS
APR 7 2022
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DAVID WALTERS, No. 20-35861
Plaintiff-Appellant, D.C. No. 2:19-cv-01938-MLP
Western District of Washington,
v. Seattle
KILOLO KIJAKAZI, Acting Commissioner MEMORANDUM*
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Michelle L. Peterson, Magistrate Judge, Presiding
Submitted March 8, 2022**
Portland, Oregon
Before: GRABER, BEA, and VANDYKE, Circuit Judges.
Memorandum joined by Judge BEA and Judge VANDYKE;
Dissent by Judge GRABER
David Walters appeals the district court’s denial of an application for
supplemental social security income and disability insurance benefits under Title
XVI of the Social Security Act. “We review a district court’s judgment upholding
*
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 denial of social security benefits de novo” and “set aside a denial of benefits only
if it is not supported by substantial evidence or is based on legal error.” Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (citations omitted).
We have jurisdiction under 28 U.S.C. § 1291, and affirm.
To establish a disability for purposes of the Social Security Act, a claimant
must prove that he is unable “to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which … has lasted
or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 423(d)(1)(A). “In order to determine whether a claimant meets this
definition, the ALJ employs a five-step sequential evaluation.” Molina v. Astrue,
674 F.3d 1104, 1110 (9th Cir. 2012) (citations omitted), superseded on other
grounds by 20 C.F.R. § 404.1502(a).
In this case, at step five1 the ALJ found Walters was not disabled because he
was capable of performing jobs in the national economy such as industrial cleaner,
store laborer, warehouse checker, bench hand, dowel inspector, or bench assembler,
each of which required either medium exertion, light exertion, or only sedentary
work. On appeal, Walters disagrees with how the ALJ weighed the evidence, and
argues that the ALJ erred by (1) finding that Walters’s fibromyalgia impairment was
not medically determinable for social security purposes, (2) discounting the medical
1
At step two, the ALJ excluded a claimed fibromyalgia impairment because it was
not a medically determinable impairment under Social Security Ruling 12-2p.
2
opinions of examining and non-examining physicians about his ability to work,
(3) accepting a vocational expert’s hearing testimony without requiring that
supporting documents be provided to Walters, and (4) rejecting late evidence that
Walters sought to submit after the hearing.
We cannot say the district court erred in affirming the ALJ. First, the ALJ
reasonably found that Walters’s fibromyalgia was not medically determinable under
agency standards requiring that it be established by “objective medical evidence
from an acceptable medical source.” 20 C.F.R. § 416.921. “For a claimant to show
that his impairment matches a listing, it must meet all of the specified medical
criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Here, substantial evidence
supports the ALJ’s finding that Walters’s fibromyalgia fails to satisfy the
requirements set out in Social Security Ruling 12-2p. The ALJ correctly explained
that no findings in the record met the criteria for a medically determinable
fibromyalgia impairment because Walters did not provide objective medical
evidence of his symptoms or their severity, and a “physician’s diagnosis alone”
cannot establish a medically determinable impairment for social security purposes.
See Social Security Ruling 12-2p, 2012 WL 3104869, at *2–4 (Jul. 25, 2012).
Second, the ALJ provided “specific and legitimate reasons” to discount the
medical opinion testimony of Drs. Irwin, Higgins, Widlan, and Pham. See Batson
v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Rollins v.
Massanari, 261 F.3d 853, 856 (9th Cir. 2001). The ALJ explained that Dr. Irwin’s
3
medical opinion that Walters was limited to light work was not supported by
objective medical evidence of an impairment limiting Walters’s ability to perform
exertional or postural tasks.2 She also explained that the medical opinions of Dr.
Higgins and Dr. Widlan about Walters’s depression and anxiety-related mental
limitations were unreliable because each relied on self-reports from Walters—who
was not candid with either doctor about the frequency and extent of his drug use—
and conflicted with other medical records showing Walters did not report significant
depression and had previously exhibited normal moods.3 Finally, she explained that
Dr. Pham’s opinion that Walters’s impairments would last only six months was
insufficient for a finding of disability, which requires at least a twelve-month
duration.
In each circumstance, the ALJ provided sufficient reasons for discounting
medical opinion testimony, and reasonably weighed the evidence to reach her
conclusions. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“[An] ALJ
need not accept the opinion of any physician, including a treating physician, if that
opinion is brief, conclusory, and inadequately supported.”); see also Ford v. Saul,
950 F.3d 1141, 1155 (9th Cir. 2020) (“An ALJ is not required to take medical
2
Another doctor, Dr. Hander, provided an opinion that was nearly identical to
Dr. Irwin’s. Any error in only specifically discounting Dr. Irwin’s opinion, and not
Dr. Hander’s identical opinion, was harmless.
3
In any event, the ALJ did find that Walters suffered from medically determinable
bipolar disorder and anxiety disorder.
4
opinions at face value, but may take into account the quality of the explanation when
determining how much weight to give a medical opinion.”) (emphasis added).
Third, the ALJ did not err by denying Walters’s request to subpoena
supporting documents from the vocational expert. Because a qualified vocational
expert’s expertise itself is a sufficient foundation for that expert’s oral testimony in
a Social Security Administration hearing, it was unnecessary for the expert to
provide documents to support his testimony, or for Walters to obtain them.4 Biestek
v. Berryhill, 139 S. Ct. 1148, 1157 (2019); Ford, 950 F.3d at 1158–59.
Fourth, the ALJ acted within her discretion to reject additional post-hearing
evidence because the evidence was submitted fewer than five days before the
hearing, so the ALJ was not required to admit it unless necessary or mandated by
statute. 20 C.F.R. § 416.1435 (“Each party must make every effort to ensure that
the administrative law judge receives all of the evidence … no later than 5 business
days before the date of the scheduled hearing. If you do not comply with this
requirement, the administrative law judge may decline to consider or obtain the
evidence unless the circumstances described in paragraph (b) of this section apply.”).
Here, the ALJ had no duty to further develop the record on this issue because no
statutory mandate applied and “[t]he record before the ALJ was neither ambiguous
nor inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari,
4
Nor did the ALJ err when she asked Walters’s counsel to stop asking the expert
repeat questions that he had already answered during cross examination. See Solis
v Schweiker, 719 F.2d 301, 302 (9th Cir. 1983).
5
276 F.3d 453, 460 (9th Cir. 2001).5
For the reasons explained herein, we determine that the ALJ’s decision is free
from harmful error and supported by substantial evidence.6
AFFIRMED.
5
The dissent characterizes the ALJ as having “suspected” and “acknowledge[ed]”
that the record was “incomplete or inadequate” without the additional evidence that
Walters attempted to file late. There is no support in the ALJ’s opinion for this
characterization. Given the other reasons identified by the ALJ for finding testimony
unreliable, the ALJ’s mere knowledge of unadmitted mental health records alone did
not make the record ambiguous or inadequate to allow for the proper evaluation of
the evidence properly in the record.
6
On August 20, 2021, Walters filed a motion seeking to add post-hearing evidence
to the excerpts of record in this appeal. ECF 28. As explained above, the documents
were originally excluded by the ALJ because they were filed late and not subject to
any exception. Because the documents are unnecessary to decide this appeal, we
DENY the motion.
6
FILED
Walters v. Kijakazi, No.: 20-35861
APR 7 2022
GRABER, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. The pivotal issue is whether Plaintiff’s impairments
of bipolar disorder and anxiety disorder, which the ALJ found were severe,
rendered Plaintiff disabled. The ALJ’s reasons for discounting the extent of
Plaintiff’s disability were: the record “does not contain properly submitted
evidence of mental health treatment since the alleged onset date,” and Plaintiff “did
not receive the extent of treatment one would expect for a totally disabled
individual.” The ALJ’s acknowledgment of an incomplete or inadequate record is
not surprising; Dr. Forsyth’s report concluded expressly that “[a]dditional evidence
is required to establish current severity of the individual’s [mental health]
impairment(s).” (Emphasis added). Because the record was incomplete or
inadequate—which the ALJ suspected contemporaneously and knew for sure when
presented with the fact that Plaintiff had been treated at a mental health facility for
most of the year preceding the hearing—the ALJ had a duty to develop the record
further by permitting supplementation of the record after the hearing concluded.
Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). That duty “is
especially important” when the claimant has a mental impairment. DeLorme v.
Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). I would remand to the district court
with instructions to remand the matter to the ALJ to develop the record. See id.(following that procedure).