NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 12 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELLE MARIE PRICE, No. 21-35595

Plaintiff-Appellant, D.C. No. 3:20-CV-5815-DWC

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington David W. Christel, Magistrate Judge, Presiding

Submitted July 8, 2022** San Francisco, California

Before: HAWKINS and BUMATAY, Circuit Judges, and MOSKOWITZ,*** District Court Judge.

Michelle Price appeals from the district court’s order affirming the

* 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 Barry T. Moskowitz, District Judge for the United States District Court for the Southern District of California, sitting by designation. Commissioner of Social Security’s denial of disability insurance benefits. “We

review the district court’s order affirming the [Administrative Law Judge]’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)) (internal quotation marks omitted). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Price argues that the Administrative Law Judge (“ALJ”) improperly

discounted her testimony regarding her physical limitations. The ALJ concluded

that Price had been diagnosed with atrial fibrillation and congestive heart failure but

that the medical evidence did not support her testimony about the severity of her

reported symptoms. Specifically, the ALJ discounted Price’s claims that chest pains

prevented her from being able to “walk around the block,” and that she was “short

of breath all the time.” Price contends that the ALJ failed to provide “specific, clear

and convincing reasons” supporting these findings. Garrison v. Colvin, 759 F.3d

995, 1014–15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th

Cir. 1996)).

The ALJ properly considered Price’s noncompliance with cardiac treatment

and medication, her testimony that her condition improved after her 2017 ablation

procedure, her reports of being able to perform daily activities, her ability to

2 occasionally work after the onset date of her symptoms, and reports from treatment

providers recording mild symptoms. These are sufficient “clear and convincing

reasons” for the ALJ to discount Price’s testimony. See Ghanim v. Colvin, 763 F.3d

1154, 1163 (9th Cir. 2014).

2. Price also argues that the ALJ improperly assessed the medical

evidence when he determined Price’s residual functional capacity (“RFC”). Price

asserts that the ALJ made the following errors: he (1) gave “little weight” to Dr.

Myrna Palasi’s opinion, (2) failed to fully include the opinion of Dr. Tasmyn Bowes

and Dr. Jack Norris in the RFC assessment, and (3) failed to account for Price’s

history of emergency room visits. Substantial evidence supports the ALJ’s

assessment of the medical evidence and consequent RFC determination.

First, the ALJ did not err by giving little weight to Dr. Palasi’s medical

opinion. Dr. Palasi opined that Price was unable to sustain a 40-hour work week

and recommended a less-than-sedentary RFC. However, as the ALJ noted, Dr.

Palasi did not personally examine Price and her opinion contained an apparent error

when she listed deep vein thrombosis as a basis for recommending a lower RFC,

even though testing revealed only superficial venous thrombosis. Additionally, the

ALJ correctly noted that Dr. Palasi’s report was “inconsistent with the clinical

findings of treatment providers who found [Price] had irregular heart rate at times

but otherwise had unremarkable physical exams.” These are specific and legitimate

3 reasons for the ALJ to discount Dr. Palasi’s opinion. See Ford v. Saul, 950 F.3d

1141, 1156 (9th Cir. 2020).

Second, substantial evidence supports the ALJ’s analysis of the opinions of

Dr. Bowes and Dr. Norris. Price argues that the doctors found that she had

“significant” limitations in performing work activities, and these findings were not

included in the ALJ’s RFC. Both opinions came in the form of a checklist, with the

descriptive work limitation options of “None or Mild,” “Moderate,” “Marked,” or

“Severe.” Although “Moderate” is defined as a “significant limitation,” in context,

that does not imply a complete inability to perform work. “Moderate” is the second

mildest of the options, and only a “Severe” limitation is defined as an “inability to

perform the particular activity in regular competitive employment.” Therefore, the

ALJ’s RFC finding corresponds with the opinions of Dr. Bowes and Dr. Norris.

Finally, Price alleges that the ALJ improperly evaluated the medical evidence

from Price’s many trips to the emergency room and from other non-examining

physicians. Those reports and opinions generally describe Price as suffering from

chest pains and occasional mental distress. However, the ALJ accounted for these

limitations when he calculated the RFC and substantial evidence supports his

findings about the severity of Price’s limitations.1

1 In her opening brief, Price argued that the Commissioner of the Social Security Administration was appointed unconstitutionally, which divested the ALJ of

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AFFIRMED.

authority over Price’s case. However, she retracted the argument in her reply brief, so we do not consider it.

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