Opinion
22-35053
11-17-2022
THOMAS L. EMSLEY, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee.
NOT FOR PUBLICATION
Submitted November 8, 2022 Portland, Oregon
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court No. 3:21-cv-05107-BAT for the Western District of Washington Brian Tsuchida, Magistrate Judge, Presiding
Before: CLIFTON and BUMATAY, Circuit Judges, and BAKER, International Trade Judge.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Thomas Emsley appeals from the district court's order affirming the Commissioner of Social Security's denial of disability insurance benefits and supplemental security income. "We review the district court's order affirming the [Administrative Law Judge]'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) (simplified). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Emsley argues that the ALJ erred by failing to credit his "rheumatoid arthritis" and "degenerative disc disease/sciatica" as severe impairments at Step Two. Any error at Step Two is harmless because, those disputed impairments aside, the ALJ found other impairments to be severe and proceeded to Step Three. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) ("[S]tep two was decided in [claimant's] favor .... He cannot possibly have been prejudiced."). Emsley appears to concede that any error was harmless at Step Two. But Emsley also argues that this error caused "downstream" error when the ALJ calculated Emsley's RFC without considering all of his limitations. That corollary argument is foreclosed by the Court's ultimate conclusion that the ALJ did not err when weighing medical evidence and Emsley's testimony.
2. Emsley argues the ALJ erred when reviewing his symptom testimony. But the ALJ provided several specific, clear, and convincing reasons for rejecting Emsley's symptom testimony. One such reason is the contradiction between Emsley's activities and the severity of his reported symptoms. Emsley testified in June 2020 that he had been experiencing disabling spells of vertigo for at least a year and a half, and that these spells occurred twice a week for at least half an hour. Emsley also testified that he occasionally required a cane to walk because of hip pain, and that his sciatica symptoms were sometimes so severe such that it once took him half an hour to punch out from work because he had to stop every 10 to 15 feet and crouch down until the pain went away. The ALJ observed that Emsley had been engaging in activities that were inconsistent with this symptom testimony-for example, less than a year before testifying, Emsley was voluntarily performing carpentry work on the roof of his "tiny" house project. Emsley's ability to do carpentry work on a roof rebuts his allegations of disabling vertigo and physical limitations. See Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (stating that a claimant's regular performance of physical functions transferable to a work setting is an appropriate basis for discrediting a claim of disability).
3. Emsley argues that the ALJ erred when considering the medical evidence, including the opinions of Drs. Wang, Packer, Hallows, Platter, and Alto. But substantial evidence supports the ALJ's weighing of medical opinions. An ALJ must explain how he or she considered the supportability and consistency factors when articulating the persuasiveness of a medical opinion. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). The ALJ properly addressed the supportability and consistency of medical opinions by analyzing whether each opinion was supported by the doctor's clinical findings and whether that opinion was consistent with other medical evidence in the record. For example, the ALJ found that (1) Dr. Wang's opinion was not supported by clinical notes and was inconsistent with other opinions in the record; (2) Dr. Packer's opinion was inconsistent with the record and less persuasive because Packer had not examined Emsley; and (3) Dr. Hallows's opinion was consistent with the record and more persuasive because Hallows had examined Emsley. Nothing in the briefs or record require us to reverse the ALJ's decision.
4. Emsley also asks us to disregard our Woods holding. We have no authority to do so. See generally Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (explaining that only an en banc panel may overrule another panel's opinion absent "clearly irreconcilable" intervening law).
5. Finally, we do not address Emsley's challenges to the Commissioner's 2017 medical evidence regulations. Emsley's arguments against the medical evidence regulations are forfeited because they were not properly raised before the district court. See Steam Press Holdings, Inc. v. Haw. Teamsters &Allied Workers Union, Local 996, 302 F.3d 998, 1005 (9th Cir. 2002). Emsley did not raise these arguments before the district court until his reply brief and the district court declined to address them.
AFFIRMED.
The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation.