Opinion
21-17140
10-31-2022
ROSANNA FRANCHINO, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee.
NOT FOR PUBLICATION
Argued and Submitted October 18, 2022 San Francisco, California
Appeal from the United States District Court for the District of Arizona D.C. No. 3:20-cv-08144-GMS G. Murray Snow, Chief District Judge, Presiding
Before: CLIFTON, BEA, and NGUYEN, Circuit Judges.
MEMORANDUM
Plaintiff-Appellant Rosanna Franchino appeals the district court's order affirming an Administrative Law Judge's denial of Social Security disability benefits. We have jurisdiction under 28 U.S.C. § 1291. We review the district court's decision de novo and uphold an ALJ's disability determination "unless it is either not supported by substantial evidence or is based upon legal error." Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022) (quoting Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018)). We affirm.
Franchino suffers from fibromyalgia, osteoarthritis, and high blood pressure. In denying Franchino's claim for disability and disability insurance benefits, the ALJ assigned "little weight" to the medical opinion of Franchino's treating physician, instead assigning greater weight to the opinions of two non-examining physicians who reviewed Franchino's medical records. Although the ALJ found that Franchino's impairments could reasonably be expected to cause the alleged symptoms, the ALJ rejected Franchino's testimony based on perceived inconsistencies in Franchino's medical records. The district court affirmed.
The ALJ provided "specific and legitimate reasons" for assigning little weight to the opinion of Franchino's treating physician. Woods, 32 F.4th at 789 (quoting Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017)). That physician opined that, among other limitations, she could only sit for two hours in an eighthour day, sit for 15 minutes at a time, and ambulate with a "wheelchair, walker, or 2 canes or 2 crutches." In concluding the treating physician's opinion was inconsistent with the clinical record and activities of her daily life, the ALJ had the benefit of reviewing the "overall diagnostic record." Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). Substantial evidence supported the ALJ's conclusion. Franchino never consistently used an assistive device to walk. There was no evidence that she required a wheelchair or relied upon multiple canes and/or crutches. Moreover, there were several treatment notes in the record that state she had a "normal gait and station." She also took (and presumably sat during) multiple hour-long trips from Arizona to California without indicating she had accommodations. Consequently, the ALJ did not err in concluding the treating physician's opinion is "inconsistent with the medical records" and assigning it little weight. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (rejecting a treating physician's opinion if it is "inadequately supported by clinical findings").
The ALJ provided "specific, clear, and convincing reasons" for discounting Franchino's subjective complaints. See Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). She testified that her conditions caused her several difficulties, including disabling pain, fibromyalgia fog, inability to stand or sit for longer than five minutes without fidgeting, and inability to walk more than a few steps without assistance. The ALJ considered and rejected these findings by relying on medical evidence, including conflicting testimony and treatment, from the "longitudinal record" as required in fibromyalgia cases. Revels, 874 F.3d at 657 (quoting SSR 12-2P, 2012 WL 3104869, at *6 (July 25, 2012)). For example, the ALJ identified treatment notes from 2016 to 2019 that describe Franchino as "alert, active, oriented, and in no acute distress" and with normal memory and concentration. These notes contradict her statements concerning her acute pain and that the alleged fibromyalgia fog led to problems with her memory and concentration. Similarly, her repeated denials of using a cane in the past undermine her claim that she uses a cane "all the time" and needs one to walk unassisted. Franchino was prescribed a cane in March 2019- approximately three months after she was last insured. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (discounting complainant's testimony because it was inconsistent with the testimony of medical providers "concerning the nature, severity, and effect of the [claimant's] symptoms" (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)).
It is true that in fibromyalgia cases, medical evidence must be considered in light of its "unique symptoms and diagnostic methods." Revels, 874 F.3d at 662. Here, however, Franchino's statements that contradict the medical record or are inconsistent with her actions detract from her credibility and weigh in favor of the ALJ's decision. See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.