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noting that claimant waived “any argument based on [clinical] findings” where claimant, who was represented by the same counsel as the instant case, “simply list[ed] numerous clinical findings, unaccompanied by argument”
Summary of this case from Airavee C. v. Comm'r of Soc. Sec.Opinion
21-35733
10-12-2022
DRENA N. PUTZ, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee.
NOT FOR PUBLICATION
Submitted October 6, 2022 Seattle, Washington
Appeal from the United States District Court for the Western District of Washington, D.C. No. 3:20-cv-05648-MAT Mary Alice Theiler, Magistrate Judge, Presiding
Before: MURGUIA, Chief Judge, and W. FLETCHER and BENNETT, Circuit Judges.
MEMORANDUM [*]
Drena Nada Putz appeals from the district court's order affirming the Social Security Commissioner's denial of disability benefits. Putz contends that the Administrative Law Judge ("ALJ") erred by improperly evaluating the medical evidence, rejecting Putz's and her sister's testimony, and finding that Putz could capably perform jobs under the light exertional level. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Putz alleged disability based on mental and physical impairments, including asthma, depression, obesity, osteoarthritis, degenerative-disc disease, and hand and wrist surgeries. She claimed that these conditions made it difficult for her to sit, stand, and walk. Putz further noted that her mental-health issues interfered with her daily activities and her ability to handle stress.
This court reviews the district court's order de novo and reverses only if the ALJ's decision was not supported by substantial evidence or was based on legal error. Larson v. Saul, 967 F.3d 914, 922 (9th Cir. 2020). Substantial evidence is "more than a mere scintilla. It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (cleaned up). Even if the ALJ errs, this court must affirm if the error was harmless. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a).
1. Putz first argues that the ALJ erred by discounting her psychiatrist's opinion that she "is likely to have difficulty with attendance and difficulty with performing the tasks requested of her on a full-time basis" due to her psychiatric condition. The ALJ found Putz's psychiatrist's opinion "somewhat persuasive" because Putz's medical record showed a lack of mental-health treatment "either sought by [Putz] or recommended by medical providers." In discounting the psychiatrist's opinion, the ALJ also relied on an orthopedist's finding-consisting of a single checked box on a form-that Putz's "emotional factors [do not] contribute to the severity of [her] symptoms and functional limitations." The ALJ's use of an orthopedist's perfunctory judgment about his patient's mental health to discredit her psychiatrist's more detailed, contrary findings was error. Nevertheless, the ALJ incorporated those findings into his residual-functionalcapacity assessment, asked the vocational expert about jobs that would consider Putz's specific attendance and task-completion difficulties, and limited her to them. The error was thus harmless. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (noting that this court has found an error harmless if it is "inconsequential to the ultimate nondisability determination").
Putz next argues that that the ALJ erred in faulting her for failing to seek mental-health treatment. But remand is only warranted on this basis if the claimant can show through "medical evidence that [her] resistance [to treatment] was attributable to her mental impairment rather than her own personal preference." Molina, 674 F.3d at 1114. Putz has made no such showing.
Putz also argues that the ALJ erred in rejecting the orthopedist's opinion that it would be "preferable if [Putz] could be in a line of work that did not require prolonged standing and walking." An ALJ may properly reject a medical provider's "proposal [that] was offered as a recommendation, not an imperative." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). Nonetheless, the ALJ did not reject the orthopedist's opinion; he merely found it "partly persuasive" because it "recite[d Putz's] subjective assertions" and was internally inconsistent. His decision was supported by substantial evidence.
Putz makes additional arguments, to which she gives short shrift. Because Putz does "not actually argue[]" these points beyond "bare assertion[s]" of error, they are waived. Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (internal quotation marks omitted); see United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (noting that arguments "made in passing" are waived). Putz also lists numerous clinical findings, unaccompanied by argument, intended to corroborate testimony the ALJ discounted; any argument based on these findings is waived as well. See Indep. Towers, 350 F.3d at 929 (recognizing that this court will not manufacture arguments where none is presented); Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir. 2007) (concluding that "lists of facts unaccompanied by analysis and completely devoid of caselaw fall far short of" Federal Rule of Appellate Procedure 28(a)(8)(A)'s requirement that appellants present their "contentions and the reasons for them" in opening briefs).
The ALJ did not improperly evaluate the medical evidence, and to the extent he did, any error was harmless. His findings were supported by substantial evidence.
2. Putz argues that the ALJ erred in rejecting her subjective symptom testimony. The ALJ "engages in a two-step analysis to determine whether a claimant's testimony regarding subjective pain or symptoms is credible." Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). At the first step, the ALJ determines "whether the claimant has presented objective medical evidence of an underlying impairment [that] could reasonably be expected to produce the pain or other symptoms alleged." Id. (internal quotation marks omitted). "If the claimant satisfies the first step of this analysis, and there is no evidence of malingering, 'the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear[,] and convincing reasons for doing so.'" Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). There was no objective medical evidence that Putz had fibromyalgia, and the ALJ provided sufficiently "specific, clear, and convincing reasons" to discount Putz's other symptom testimony-her day-to-day activities, her lack of mental-health treatment, and the objective medical evidence belie her claims of completely disabling symptoms. See id. at 1010. He therefore did not err.
Putz also argues that the ALJ erred in rejecting her sister's lay testimony. The ALJ may "dismiss[] . . . family members' [lay] testimony" if he gives "arguably germane reasons for [doing so], even if he [does] not clearly link his determination to those reasons." Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). If lay testimony is "similar to [the claimant's] own subjective complaints," and the ALJ has "provided clear and convincing reasons for rejecting" the claimant's testimony, "it follows that the ALJ also gave germane reasons for rejecting" the layperson's testimony. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). The ALJ provided germane reasons to discount Putz's sister's testimony, and his decision to do so is supported by substantial evidence and is not legal error. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (inconsistency with medical evidence is a germane reason to discount lay testimony).
3. Putz argues that the ALJ erred in assessing her residual functional capacity and in relying on the vocational expert's response to an incomplete hypothetical for his step-five finding. But "simply restat[ing the] argument that the ALJ's [residual-functional-capacity] finding did not account for all [of the claimant's] limitations because the ALJ improperly discounted her testimony and the testimony of medical experts" does not suffice to show error after we have already concluded that the ALJ properly discounted that testimony. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). And "in hypotheticals posed to a vocational expert, the ALJ must only include those limitations supported by substantial evidence." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006). The ALJ did not err, and his findings were supported by substantial evidence.
Finally, in a three-word sentence, Putz also argues that the ALJ falsely asserted that his residual-functional-capacity assessment accounted for her psychiatrist's opinion. To the extent that this is a separate claim of error, it is waived. Indep. Towers, 350 F.3d at 929.
***
The ALJ's decision that Putz was not disabled was supported by substantial evidence.
AFFIRMED.
[*] 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).