Opinion
21-35756
10-11-2022
TONYA KAY WHITE, 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NOT FOR PUBLICATION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-05742-TLF Theresa Lauren Fricke, Magistrate Judge, Presiding
MEMORANDUM [*]
Before: MURGUIA, Chief Judge, and W. FLETCHER and BENNETT, Circuit Judges.
Appellant Tonya Kay White seeks disability benefits for the period between March 12, 2011, through December 31, 2014. After proceedings, which included several remands, the Administrative Law Judge ("ALJ") ultimately found White "not disabled," and the district court affirmed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
White has waived her challenge to the ALJ's refusal to reopen her claim for disability covering November 15, 2009, through March 11, 2011, because she does not develop this argument in her brief.
White filed her claim for disability insurance benefits on August 25, 2010, after a fall at work on November 15, 2009. "She reported shoulder, rib cage, and low back pain going down her legs." She also asserts that mental disabilities, such as depression and anxiety, resulted in major impairments in her functioning.
We review the district court's decision de novo. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). We conduct a full review of the facts and make an independent determination of whether the ALJ's findings are supported by substantial evidence. Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985). "[T]he threshold for such evidentiary sufficiency is not high." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). "It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks and citation omitted).
1. White first argues that the ALJ erred in determining that White "had the residual functional capacity to perform light work" because she "can lift/carry 20 pounds occasionally and 10 pounds frequently" and "can stand and/or walk for 4 hours per eight-hour workday and sit for 6 hours per eight-hour workday, one hour at a time." White argues that she could not perform light work, which "requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday," because the ALJ found she was limited to standing no more than two hours at a time or four hours total in a workday. She also argues that the ALJ did not address the assessment of one of her medical evaluators, Dr. Hoskins, who said the "best White was capable of doing was at the sedentary exertional level."
White's limitation on standing and walking exceeds the limit of the sedentary exertion level (no more than two to two and a half hours) and falls below the "full range" of light work (approximately six hours). U.S. Dep't of Labor, Dictionary of Occupational Titles app. C (4th ed. 1991), app. C, 1991 WL 688702; SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983). Thus, White's functionality was within the light work range. See 20 C.F.R. § 404.1567(b). And the ALJ did address Dr. Hoskin's assessment, albeit not by name, giving it "great weight" and adopting its proposed limitation of four hours of standing and walking.
2. White challenges the ALJ's determination that her migraines were not severe impairments. She points to one doctor's evaluation that her headache intensity was "severe." The ALJ found that the medical records did not show that the migraines were more than minimal limitations on White's ability to perform basic work activities, and thus were "not severe within the meaning of the regulations." In any event, because the ALJ considered the migraines "when assessing the claimant's residual functional capacity," id. , any alleged error in failing to classify the migraines as severe is harmless. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). Moreover, because the ALJ found White's testimony unreliable, and because there is no independent medical evidence confirming White's allegations about the extent of her symptoms, the ALJ properly excluded any limitations based on her migraines. See Britton v. Colvin, 787 F.3d 1011, 1013-14 (9th Cir. 2015).
White waived any argument about her chronic back pain because she did not raise the issue before the district court. See Edlund v. Massanari, 253 F.3d 1152, 1158 n.7 (9th Cir. 2001).
3. White next argues that the ALJ should not have rejected the medical opinions of Drs. Lemberg and McCollom. The ALJ discounted these medical opinions for specific reasons. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2015). The opinions conflicted with those of the state agency psychological consultants, to which the ALJ gave great weight, and with the treatment records, which did not show significant medical abnormalities. The ALJ also noted that Drs. Lemberg and McCollum were one-time examiners. See 20 C.F.R. § 404.1527(c)(6). Finally, Drs. Lemberg and McCollum relied in large part on White's symptom complaints, which the ALJ found unreliable. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005).
White does not contest the ALJ's finding that her subjective symptom testimony was not reliable.
4. White also argues that the ALJ should not have rejected the lay witness testimony from her husband, her two friends, and her in-laws. But the ALJ need not discuss lay witness statements that are "contradicted by more reliable medical evidence that the ALJ credited." Molina v. Astrue, 674 F.3d 1104, 1119 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a). Here, the medical opinions of Drs. Fisher, Underwood, and Hoskins, as well as objective medical evidence in the record, contradicted the lay witness statements. See Lewis v. Apfel, 236 F.3d 503, 511-12 (9th Cir. 2001). And the lay witness statements, some of which discussed White's condition only after the relevant period, depended on White's unreliable statements and reporting.
5. Finally, White argues that the jobs the ALJ identified using a vocational expert do not match her residual functioning capacity. She first asserts that because she was restricted to simple routine tasks, she could not work at a reasoning level of three. But because the ALJ found in his residual functional capacity assessment that White could perform simple, routine tasks with a reasoning level of three or less, White's argument fails. White next argues that a doctor wrote that she should avoid postural activities, and that she needed to use a cane, which the light exertional level would not accommodate. But the ALJ reasonably discounted that medical opinion and White's own symptom reports. White cannot establish that a residual functioning capacity is erroneous by pointing to evidence that the ALJ reasonably discounted. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). White disagrees with the vocational expert's finding that she could perform in the occupations the expert identified with restrictions on standing and walking. But the ALJ adhered to precedent by consulting a vocational expert. SSR 83-12, 1983 WL 31253, at *4. And White's disagreement with the vocational expert's methodology, without suggesting another to replace it, does not undermine the "inherent reliability" of the "qualified vocational expert's testimony as to the number of jobs existing in the national economy that a claimant can perform[, which] is ordinarily sufficient by itself to support an ALJ's step-five finding." Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020).
The ALJ's decision that White 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).