FILED

NOT FOR PUBLICATION

JUN 13 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MISTY ZOMBIE, No. 21-35216

Plaintiff-Appellant, D.C. No. 3:20-cv-05273-MLP

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Michelle L. Peterson, Magistrate Judge, Presiding

Submitted June 7, 2022** Portland, Oregon

Before: EBEL,*** W. FLETCHER, and CLIFTON, Circuit Judges.

* 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 M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. Claimant Misty La Verne Collier Zombie (“Zombie”) appeals from the

district court’s ruling affirming the Commissioner of Social Security’s denial of

her application for disability benefits. Zombie contends that the Administrative

Law Judge (“ALJ”) improperly discounted both (1) her subjective testimony about

the severity of her symptoms, and (2) the opinion of an examining physician, Dr.

Kim Wheeler.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We “review the district

court’s order affirming the ALJ’s denial of social security benefits de novo and

will disturb the denial of benefits only if the decision contains legal error or is not

supported by substantial evidence.” Lambert v. Saul, 980 F.3d 1266, 1270 (9th

Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)).

1. In her application for benefits and in her testimony before the ALJ,

Zombie stated that she could not be left unsupervised for more than fifteen minutes

because of her seizures; that her chronic pain prevented her from standing or sitting

for more than fifteen minutes at a time; that she had no feeling in her hands; and

that her mental health conditions prevent her from going outside.

Substantial evidence supports the ALJ’s finding discounting the statements

in Zombie’s application and in her testimony. Where, as here, an ALJ finds that

the claimant’s underlying impairments “could reasonably be expected to produce

2 the pain or symptoms alleged,” “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.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)

(first quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc); and

then quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). The ALJ did

so here. He wrote that Zombie’s testimony about her physical and mental

limitations was not consistent with the medical record.

Treatment notes by Zombie’s treating physician, Dr. David Woolever, show

that Zombie reported that her medications drastically reduced her chronic pain,

stabilized her epilepsy, and managed her mental health conditions. Further, an

“ALJ may discredit a claimant’s testimony when the claimant reports participation

in everyday activities indicating capacities that are transferable to a work setting.”

Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012), superseded on other

grounds by 20 C.F.R. § 404.1502(a). Zombie consistently reported that her

physical and mental impairments were sufficiently controlled to permit her to do

activities of daily living such as housework, cooking, shopping, and even rafting

and camping.

2. To support her claim of disability, Zombie relies on the opinion of an

examining psychologist, Dr. Kim Wheeler. Dr. Wheeler examined Zombie and

3 concluded that Zombie would have marked difficulty “[p]erforming activities

within a schedule, maintain[ing] regular attendance,” “[c]ommunicat[ting] and

perform[ing] effectively in a work setting,” and more.

For applications filed before March 27, 2017, such as Zombie’s, an ALJ may

reject the contradicted opinion of an examining health care provider only “by

providing specific and legitimate reasons that are supported by substantial

evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). The ALJ gave two

reasons for discounting Dr. Wheeler’s opinion. Although the first reason provided

by the ALJ was not a legitimate reason to discount Dr. Wheeler’s opinion, the

ALJ’s second reason is sufficiently specific and is supported by substantial

evidence. The ALJ found that Zombie’s “presentation to Dr. Wheeler [wa]s

inconsistent with her representations to treating personnel.” Zombie’s reporting of

her mental health symptoms to Dr. Wheeler is not supported by the medical record.

Both before and after she met with Dr. Wheeler, Zombie repeatedly reported that

her seizures were well managed, stated that her anxiety and depression were

stabilized, and denied experiencing hallucinations on at least one occasion. A

treating nurse consistently assessed Zombie’s mental status to be “grossly normal,”

and found that Zombie displayed normal thought processes, thought content,

4 speech, and judgment. At one visit, Zombie had reported that her mental health

conditions made it “not difficult at all” to work, do housework, and get along with

other people. At best, this evidence is “susceptible to more than one rational

interpretation,” so under the substantial evidence standard we must uphold the

ALJ’s conclusion. Tommasetti, 533 F.3d at 1038.

AFFIRMED.

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