NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 31 2022

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

JODY MARIE KISS, No. 20-15932 Plaintiff-Appellant, D.C. No. 2:19-cv-01307-SPL v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding Submitted May 19, 2022** Pasadena, California

Before: MILLER and COLLINS, Circuit Judges, and KORMAN,*** District Judge.

Jody Marie Kiss appeals the district court’s judgment affirming the Social

Security Administration’s denial of her application for disability insurance benefits

and supplemental security income under Titles II and XVI of the Social Security

Act. We have jurisdiction under 28 U.S.C. § 1291 and review de novo the district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable Edward R. Korman, District Judge for the Eastern District of New York, sitting by designation. court’s decision affirming the denial of benefits. Benton ex rel. Benton v.

Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). We may set aside such a denial

only when the findings of the Administrative Law Judge (“ALJ”) “are based on

legal error or not supported by substantial evidence in the record.” Id. We affirm.

An ALJ may discount a claimant’s subjective testimony when, inter alia,

that testimony is contradicted by the medical record, Carmickle v. Comm’r of Soc.

Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); when the claimant reports

symptoms in an inconsistent manner, Tommasetti v. Astrue, 533 F.3d 1035, 1039-

40 (9th Cir. 2008); and when the record contains a lack of corroborating medical

evidence, Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). See also 20

C.F.R. § 404.1529(c)(3)–(4) (describing how an ALJ should evaluate evidence

from medical and nonmedical sources in making a disability determination).

Here, the ALJ proffered specific, clear and convincing reasons to discount

Kiss’s subjective allegations as lacking corroboration and inconsistent with the

medical record. At the hearing, Kiss testified that she uses a walker due to hip and

back pain, that she usually spends the day lying in bed, that she experiences head,

back, shoulder, and hip pain “all the time,” that she is never left alone, and that she

has worsening anxiety and depression. The ALJ found that Kiss’s testimony about

her symptoms was “not entirely consistent with the medical evidence and other

evidence in the record,” citing reports of spinal diagnostic examinations that

2 showed mild to moderate impairments. The ALJ also cited reports from various

medical providers that “typically noted normal objective examinations.” Despite

Kiss’s statement that she needed to use a walker, the ALJ noted that Kiss’s

“treating providers consistently noted . . . normal gait and sensation.” The ALJ

also noted that Kiss’s migraines improved with treatment and that, while her

providers sometimes noted that she was anxious, her mental status examinations

were in many respects “essentially normal.” Although some of the cited reports

did reflect “abnormal” mood, we cannot say that the ALJ’s overall assessment of

the mental health record was erroneous. The ALJ’s conclusion that Kiss’s

subjective contentions were inconsistent with the medical evidence was based on a

permissible reading of the record that we may not set aside.1

Kiss also argues that the ALJ erred in discounting a psychological evaluation

prepared by consulting psychologist Natalie Hurd, in which Dr. Hurd found that

Kiss struggled with memory, comprehending instructions, concentration,

maintaining attention, and that she would likely struggle to maintain “socially

appropriate behavior” and to “respond appropriately to changes” in the workplace.

Because this evaluation is contradicted by other assessments in the record

1 Any error in the ALJ’s reliance on Kiss’s asserted ability to travel “up a mountain” during a trip was harmless, because the ALJ provided ample other reasons for discounting her subjective allegations. See, e.g., Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) (“An error is harmless only if it is inconsequential to the ultimate nondisability determination.”) (internal quotation omitted).

3 generally describing Kiss’s mental capacity as “not significantly” and

“moderately” limited, the ALJ “was required to give only ‘specific and legitimate’

reasons for rejecting the opinion.” Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir.

2020). The ALJ did so, noting that this assessment was inconsistent with other

evidence in the medical record.

In her opening brief, Kiss argues for the first time that the ALJ violated due

process by conducting the hearing when Kiss was ill. Because Kiss, who was

represented by counsel before the ALJ and the district court, did not raise this

argument before the district court, the issue is forfeited. See Ford, 950 F.3d at

1158 n.12; Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999).

AFFIRMED.

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