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Henderson v. Kijakazi

United States Court of Appeals, Ninth Circuit
Oct 19, 2022
No. 22-35031 (9th Cir. Oct. 19, 2022)

Opinion

22-35031

10-19-2022

NATHANIAL JAMES HENDERSON, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee.


NOT FOR PUBLICATION

Submitted October 4, 2022 [**] Portland, Oregon

Appeal from the United States District Court for the District of Oregon D.C. No. 6:19-cv-01280-AA Ann L. Aiken, District Judge, Presiding

Before: OWENS and MILLER, Circuit Judges, and EZRA, [***] District Judge.

MEMORANDUM [*] 1

Appellant Nathanial Henderson ("Appellant") applied for Supplemental Security Disability Insurance ("SSDI") on August 19, 2015, alleging inability to work based on stenosis of the lumbar spine, bilateral hip impairment, status post bilateral arthroscopic surgery, migraine headaches, post-traumatic stress disorder, and major depressive disorder. Appellant's claims were initially denied on November 18, 2015, and were denied upon reconsideration on March 1, 2016.

Before this Panel is a decision of an Administrative Law Judge (the "ALJ"), dated April 18, 2019, denying Appellant's application for SSDI, which the district court affirmed on December 15, 2021. Appellant then filed the present appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review the decision affirming the ALJ's denial of benefits de novo. See Webb v. Barnhart, 433 F.3d 683, 685-86 (9th Cir. 2005).

ALJ Triplett's decision was the second ALJ proceeding in this case. The first ALJ decision, dated October 20, 2016, similarly denied SSDI, but was reversed and remanded by the district court for failing to take opinion evidence from Appellant's doctor into consideration.

Appellant contends the ALJ erred by (1) improperly rejecting Physical Therapist ("PT") John Breuer's medical assessment, (2) failing to include any limitations related to migraine headaches in the residual functional capacity assessment (the "RFC"), and (3) excluding Appellant's migraine headaches from the hypothetical posed to the vocational expert (the "VE"). Appellant also argues 2 his case should be remanded for an award of benefits. We hold that the ALJ did not commit reversible error on any of the grounds Appellant asserts, and we affirm the district court's judgment.

Because PT Breuer does not qualify as an "acceptable medical source" under 20 C.F.R. § 404.1502(a), the ALJ was merely required to give reasons "germane" to PT Breuer when discounting his opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). In his decision, the ALJ explained that PT Breuer's assessment was inconsistent with the objective medical evidence provided by state agency medical consultants. He also noted Appellant's own contradicting testimony as to his work history and capabilities. By specifically identifying and discussing these inconsistencies, the ALJ met his burden of giving reasons "germane" to PT Breuer.

Next, when determining a claimant's RFC, an ALJ is required to consider "all . . . symptoms . . . and the extent to which [these] symptoms can reasonably be accepted as consistent with the objective medical evidence." 20 C.F.R. § 404.1529(a). The severity of Appellant's migraine headaches was not substantiated by medical evidence. Appellant provided no medical assessment of his migraine-related restrictions, and as the ALJ pointed out, his medical records lack reference to ongoing headache symptoms or specialized attempts to treat them. 3

Because the severity of Appellant's migraines was unsupported by objective medical evidence, the ALJ was entitled to consider other evidence in the record to determine if the migraine symptoms limited Appellant's ability to perform work-related activities. 20 C.F.R. § 404.1529(a). The ALJ determined that there was little evidence in the record to suggest that Appellant's headaches significantly limited his functional capacity. The ALJ pointed out that Appellant's testimony on the matter was inconsistent: On one occasion, Appellant stated that his headaches require sumatriptan once or twice a month but are otherwise treatable with ibuprofen, and on another occasion, he stated that he had debilitating headaches once per week that left him unable to get out of bed.

Given the lack of objective medical evidence regarding the severity of Appellant's migraines and the inconsistencies in the record as to Appellant's own statements regarding the limitations his headaches cause, the Panel finds that the ALJ had substantial evidence to reject the claim. Thus, the ALJ did not err in omitting the migraines from the RFC.

Finally, an ALJ is not required to adopt allegations that the record does not support. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). As discussed above, the ALJ made a reasonable finding that Appellant's debilitating migraines were not supported by the record and thus did not need to be included in the RFC assessment. Therefore, he also was not required to include them in 4 hypotheticals to the VE. Id. at 1165 ("It is . . . proper for an ALJ to limit a hypothetical to those impairments that are supported by substantial evidence in the record."); see also Magallanes v. Brown, 881 F.2d 747, 756-57 (9th Cir. 1989). Because we conclude that there was no error in the ALJ's consideration of Appellant's testimony and medical opinion evidence, we also hold that the ALJ did not err by including in the hypothetical only those limitations he found applicable. We conclude that the ALJ's decision is free of reversible error and affirm.

AFFIRMED. 5

[*] 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 David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.


Summaries of

Henderson v. Kijakazi

United States Court of Appeals, Ninth Circuit
Oct 19, 2022
No. 22-35031 (9th Cir. Oct. 19, 2022)
Case details for

Henderson v. Kijakazi

Case Details

Full title:NATHANIAL JAMES HENDERSON, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 19, 2022

Citations

No. 22-35031 (9th Cir. Oct. 19, 2022)