Opinion
22-35121
11-16-2022
AIMEE KUSHLAN, 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NOT FOR PUBLICATION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 1:20-cv-00069-REP for the District of Idaho Raymond Edward Patricco, Jr., 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
Aimee Kushlan appeals the district court's order affirming the Social Security Commissioner's denial of her application for disability insurance benefits. We have appellate jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review a denial of benefits de novo and "must affirm the Commissioner's decision if it is supported by substantial evidence and if the Commissioner applied the correct legal standards." Allen v. Kijakazi, 35 F.4th 752, 756 (9th Cir. 2022). "Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "To be eligible for social security or disability benefits, [the claimant] must demonstrate that she is unable to 'engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'" Id. (quoting 42 U.S.C. § 423(d)(1)(A)).
1. Kushlan objects to the ALJ's analysis of her migraine headaches at step three of the five-step evaluation process required by 20 C.F.R. § 404.1520, contending that he erred by analyzing them under Listing 11.00, neurological impairments, instead of Listing 11.02, epilepsy. An ALJ, however, is not required to compare a claimant's impairment "to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish equivalence." Burch, 400 F.3d at 683. Kushlan cites nothing to show that she presented evidence of Listing 11.02 equivalency to the ALJ-rather, she first presented that theory to the district court.
While she argues that under Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990), "the ALJ must explain adequately his evaluation of alternative tests and the combined effects of the impairments" (emphasis removed), the claimant there "presented evidence in an effort to establish equivalence" but the ALJ failed to discuss it. Id. Because it was Kushlan's burden to present evidence specific to equivalence, it was not error for the ALJ to fail to analyze Listing 11.02.
2. Kushlan contends the ALJ failed to provide "clear and convincing reasons" for finding her subjective testimony about her pain, cardiac symptoms, and migraines inconsistent with the objective medical evidence in the record. An ALJ must consider whether the claimant engages in daily activities inconsistent with the alleged symptoms, takes medication or undergoes other treatment for the symptoms, and fails to follow a prescribed course of treatment without adequate explanation, as well as whether the alleged symptoms are consistent with the medical evidence. Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). The findings "must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain." Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc) (cleaned up).
The ALJ did not find that Kushlan was not suffering from the conditions she claimed. He found her subjective testimony contradicted by the objective medical evidence and, in one case, by her subjective statement that she was "too busy" to follow the prescribed course of treatment. The ALJ was entitled to make that finding: "In reaching a credibility determination, an ALJ may weigh inconsistencies between the claimant's testimony and his or her conduct, daily activities, and work record, among other factors." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). While Kushlan argues that the ALJ should have read the evidence differently and reached a different conclusion, we may not reverse on that basis.
3. Kushlan's mother-in-law, Elsie, submitted a statement which the ALJ discounted as follows: "Finally, the undersigned reviewed the third party statements submitted by the claimant's mother-in-law, but the stated limitations are not consistent with the contemporaneous reports the claimant gave to treating providers or the claimant's robust activities of daily living. (Ex. 9E, 17E)." Kushlan contends this finding was not detailed enough. But if a lay witness's testimony is similar to the claimant's subjective complaints, the ALJ may reject that testimony for the same reasons cited in rejecting the claimant's testimony. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). It is apparent the ALJ permissibly discounted both Kushlans' testimony for the same reason.
AFFIRMED.
The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation.