NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 18 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT RITCHIE, No. 22-55395

Plaintiff-Appellant, D.C. No. 8:20-cv-00984-PVC

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Pedro V. Castillo, Magistrate Judge, Presiding

Submitted January 13, 2023** Pasadena, California

Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.

Robert Ritchie appeals the district court’s order affirming the denial of his

application for disability insurance benefits under Title II of the Social Security

Act. Ritchie argues that the Administrative Law Judge (“ALJ”) improperly

* 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). discounted his testimony about the severity of his symptoms and the opinion of his

treating physician. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. We affirm the ALJ’s decision to discredit Ritchie’s testimony about the

severity of his symptoms because the ALJ’s reasons for doing so were “specific,

clear and convincing.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017)

(quoting Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014)).

First, as the ALJ recognized, the record contains numerous medical

appointments in which Ritchie denied having headaches—a fact that is inconsistent

with Ritchie’s allegations of continuous, severe headaches. Ritchie argues that

such denials are not inconsistent with his testimony because he would not bring up

his headaches when seeing a provider for a condition other than his headaches.

But that cannot explain away all the denials in the record. For example, Richie

denied having headaches or any difficulty concentrating at a visit for an “annual

wellness exam” in November 2015. Ritchie also denied having headaches at

appointments for ailments seemingly related to headaches, such as vision

problems.

Ritchie next argues that any inconsistences between his testimony and the

medical evidence occurred before May 2016, and that the ALJ consequently erred

in declining to find that he had a disability after that point. But that argument is

undermined by Ritchie’s continued denial of headaches at medical appointments

2 after 2016. That evidence also distinguishes this case from Smith v. Kijakazi, 14

F.4th 1108 (9th Cir. 2021), in which we remanded for the ALJ to consider whether

the claimant was disabled for only part of the relevant period. In Smith, the record

indicated that the severity of the claimant’s symptoms changed over time, yet the

ALJ had nevertheless discredited the claimant’s testimony based on the conclusion

that the claimant’s statements about lack of symptoms during one period conflicted

with the medical evidence and claimed symptoms from another period. Id. at

1112-13. The same cannot be said of the ALJ’s assessment of the record here,

given that Ritchie disclaimed headaches both before and after May 2016, which is

when he now argues his headaches worsened.

The ALJ’s second reason for discounting Ritchie’s testimony, that “the

medical evidence record shows many normal and mild” clinical exam findings, is

also amply supported by the record. Medical evidence in the record contains

normal neurological findings, including that Ritchie was “alert and oriented” with

good comprehension and recall. Those records undermine Ritchie’s testimony that

he has problems concentrating, is “very forgetful,” and can’t “get . . . words out

correctly.”

2. The ALJ permissibly afforded the opinion of Ritchie’s treating physician,

Dr. DeNicola, “little weight.” Dr. DeNicola opined that Ritchie would require

hourly, twenty-minute breaks at work. That opinion is inconsistent with the

3 opinions of three consulting physicians (one examining and two non-examining),

two of whom opined that Ritchie could sit, stand, and walk for six hours out of an

eight-hour workday with “normal breaks,” and the third of whom opined that

Ritchie could sit, stand, and walk for four hours at one time without interruption.

Because those doctors contradicted Dr. DeNicola’s opinion, the ALJ was permitted

to discredit Dr. DeNicola’s opinion for “specific and legitimate reasons that are

supported by substantial evidence.” Trevizo, 871 F.3d at 675 (quoting Ryan v.

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

The ALJ discredited DeNicola’s opinion because it was “not consistent with

the medical evidence record as a whole.” That determination was supported by

substantial evidence. Dr. DeNicola opined that Ritchie’s symptoms included

“dizz[iness]” and that he had a “poor gait.” Those opinions are inconsistent with

the record, which contains many treatment records describing Ritchie’s gait as

“normal” and denying dizziness. Considering those inconsistencies, the ALJ was

justified in discrediting the remainder of Dr. DeNicola’s opinion, including his

discussion of the severity of Ritchie’s headaches and required limitations.

Ritchie argues that the ALJ’s decision to reject Dr. DeNicola’s opinion was

improper for the additional reason that the ALJ failed to explicitly consider the

nature and extent of the treating relationship between Dr. DeNicola and Ritchie.

But the ALJ did consider that factor, noting that Dr. DeNicola formed his opinion

4 “after treating Mr. Ritchie for seven (7) years.”

3. Ritchie argues that the case must be remanded for consideration of two

letters from one of Ritchie’s doctors from the summer of 2019 that were presented

to the Appeals Council but were not presented to the ALJ. The Appeals Council

declined to consider the letters because it concluded that they “d[id] not relate to

the period at issue.”1 That is incorrect; one of the letters speaks to the intensity of

Ritchie’s symptoms prior to October 2018. Still, the Appeals Council was not

required to consider the new evidence, because there is not a “reasonable

probability that the additional evidence would change the outcome of the

decision.” 20 C.F.R. § 404.970(a)(5).

AFFIRMED.

1 The relevant period is May 24, 2014 through December 31, 2018.

5