NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 17 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANNA R. RODRIGUEZ, No. 22-35263

Plaintiff-Appellant, D.C. No. 3:21-cv-05309-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 March 29, 2023** Seattle, Washington

Before: NGUYEN and HURWITZ, Circuit Judges, and GUTIERREZ,*** Chief District Judge.

* 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 Philip S. Gutierrez, Chief United States District Judge for the Central District of California, sitting by designation. Anna Rodriguez appeals from the district court’s judgment affirming the

Commissioner of Social Security’s decision denying disability benefits. We have

jurisdiction under 28 U.S.C. § 1291. See 42 U.S.C. § 405(g). Reviewing the

district court’s judgment de novo and the underlying decision of the Administrative

Law Judge (“ALJ”) for substantial evidence, see Smartt v. Kijakazi, 53 F.4th 489,

494 (9th Cir. 2022), we affirm in part, reverse in part, and remand.

1. The ALJ improperly discounted Dr. Daniel Davenport’s finding that

Rodriguez “would be unable to [work] at heights or around heavy machinery,

temperature extremes, chemicals, dust, fumes, gases, or excessive noise.” In

assigning “minimal weight” to Dr. Davenport’s overall opinion, the ALJ found that

Dr. Davenport was “unable to assess [Rodriguez’s] exertional or other

abilities/limitations because of her inconsistent presentation.” But while Dr.

Davenport was largely unable to assess Rodriguez’s exertional limitations, he

personally observed that she exhibited greater physical limitations where “the

pressure of the situation . . . made her very uncomfortable,” and found the

nonexertional, environmental limitations necessary because Rodriguez “clearly

withdraws in any situation where she feels frightened or stressed.” Thus,

substantial evidence does not support the ALJ’s reason for rejecting Dr.

Davenport’s environmental limitations.

2 22-35263 2. The ALJ also improperly rejected Dr. Robert Schneider’s assessment of

Rodriguez’s interactive and adaptive limitations. This assessment was not solely

“based upon [Rodriguez’s] self-report.” Dr. Schneider personally observed

Rodriguez and compared her to “[i]ndividuals with similar personality structures”

who could “regulate their behavior for [only] a brief period of time.” In addition,

Dr. Schneider considered observations made by Rodriguez’s vocational

rehabilitation counselor regarding Rodriguez’s “changes in personality” and

“different personalities.”

Although Dr. Schneider only “encountered [Rodriguez] for a single

examination,” his opinion was presumptively entitled to more weight than that of

agency doctor Shawn Horn, who did not examine Rodriguez. See Lester v. Chater,

81 F.3d 821, 830–31 (9th Cir. 1995). The ALJ discounted Dr. Schneider’s opinion

as “vague,” yet credited Dr. Horn’s unexplained and similarly vague conclusions

regarding Rodriguez’s limitations. Dr. Horn provided only boilerplate reasons for

rejecting the greater limitations assessed by two other examining doctors—Peter

Weiss and Manuel Gomes—that were consistent with the limitations assessed by

Dr. Schneider.

Nor was Dr. Schneider’s opinion “inconsistent” with treatment notes from

Rodriguez’s mental-health treatment and community support groups. While these

notes reflect “largely normal mental status findings,” they also consistently reflect

3 22-35263 that Rodriguez “meets [the] criteria for borderline personality disorder[,] including

unstable and intense interpersonal relationships, . . . intense anger, and dissociative

symptoms.” In one support group session, for example, Rodriguez stated: “I

usually feel disconnected from people, or even hostile if I see them day after day.”

That is in line with Dr. Schneider’s conclusion that Rodriguez would have

difficulty “controlling her mood” in a work environment.

Dr. Schneider noted Rodriguez’s “inconsistent effort” to explain why testing

provided “an underestimate of her actual intellectual ability,” but her intellectual

ability was not the basis of the findings regarding her interactive and adaptive

limitations. Dr. Schneider pointed out that Rodriguez “seems to recognize that she

actually cannot work with people” to describe her awareness of her limitations, not

to rely on her characterizations of them. And Dr. Schneider’s observation that

Rodriguez was “was extremely controlling, manipulative, invested in her disability

identity and had to do things her own way” supported his conclusion that

Rodriguez could not perform work that “required her to develop close working

relationships with anyone.”

3. Rodriguez forfeited her argument that the ALJ improperly discounted

lay witness statements because she did not raise it in the district court. See Smartt,

53 F.4th at 500. This is not “the ‘exceptional’ case in which review is necessary to

4 22-35263 prevent a miscarriage of justice.” Id. (quoting Greger v. Barnhart, 464 F.3d 968,

973 (9th Cir. 2006)).

4. The ALJ did not err in identifying jobs that satisfy the limitations

prescribed by Dr. Horn. Dr. Horn opined that Rodriguez “retains the capacity to

interact with others on an occasional/superficial basis,” and the ALJ asked the

vocational expert to identify jobs that do not require “work[ing] in close

coordination with coworkers where team work is required” and involve no more

than “casual interaction or contact with the general public.” The ALJ was not

required to use Dr. Horn’s exact language. See Rounds v. Comm’r Soc. Sec.

Admin., 807 F.3d 996, 1006 (9th Cir. 2015).

Dr. Horn also opined that Rodriguez can “carry out simple 1–3 step

instructions,” which is consistent with a general educational development

reasoning level of two because level one is limited to “simple one- or two-step

instructions.” Id. at 1002. None of the jobs identified by the ALJ require a higher

reasoning level than two.

Rodriguez argues that the ALJ erred by finding that she could work as a

housekeeper because the vocational expert did not testify that housekeeping fit the

hypothetical. Any error was harmless because the vocational expert testified that

the other three occupations that the ALJ found Rodriguez could perform have a

5 22-35263 combined total of 43,535 jobs in the national economy. See Gutierrez v. Comm’r

of Soc. Sec., 740 F.3d 519, 528 (9th Cir. 2014).

* * *

Because substantial evidence does not support the ALJ’s assessment of the

evidence from Drs. Davenport and Schneider, we reverse the district court’s

contrary determination and remand for the agency to revisit this evidence. If the

ALJ’s assessment of Rodriguez’s residual functional capacity changes, the ALJ

will need to revisit the step five finding.

AFFIRMED in part; REVERSED in part; REMANDED.

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