NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 17 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUISA ALVAREZ, No. 22-16497

Plaintiff-Appellant, D.C. No. 1:20-cv-01207-SAB

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Stanley Albert Boone, Magistrate Judge, Presiding

Submitted November 15, 2023** San Jose, California

Before: MURGUIA, Chief Judge, and GRABER and FRIEDLAND, Circuit Judges.

Claimant Luisa Alvarez appeals the judgment affirming the Administrative

Law Judge’s (“ALJ”) denial of Social Security disability insurance benefits. We

review the district court’s decision de novo. Tommasetti v. Astrue, 533 F.3d 1035,

* 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). 1038 (9th Cir. 2008). We may set aside the denial of benefits only if the ALJ’s

decision “contains legal error or is not supported by substantial evidence.” Id.

(quoting Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)). We affirm.

1. The ALJ did not commit reversible error by rejecting Claimant’s

testimony, even though the ALJ arguably erred in two ways.

First, the ALJ relied on Claimant’s haphazard follow-up with her medical

appointments, failure to follow recommended courses of treatment and to start

medications as prescribed, and sparse treatment history. But the ALJ did not

explore Claimant’s assertion that financial instability and lack of health insurance

were responsible for her inconsistent medical treatment during the relevant period.

See Regennitter v. Comm’r Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir.

1999), (“[W]e have proscribed the rejection of a claimant’s complaints for lack of

treatment when the record establishes that the claimant could not afford it.”).

That error was harmless for two reasons: (a) Claimant’s testimony about her

financial instability and lack of health insurance is inconsistent with evidence in

the record; and (b) substantial evidence supports the ALJ’s other reasons and

conclusions regarding the credibility of Claimant’s testimony. See Carmickle v.

Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (explaining the

harmless error analysis); see also Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.

2012) (“[A]n error is harmless so long as there remains substantial evidence

2 supporting the ALJ’s decision and the error ‘does not negate the validity of the

ALJ’s ultimate conclusion.’” (citation omitted)), superseded on other grounds by

20 C.F.R. § 404.1502(a).

a. Claimant’s failure to follow prescribed treatment plans and medications

dates as far back as May 2011. During a follow-up visit to the Stanford Hospital,

the treating physician, Dr. Yingzhong Tian, noted that Claimant returned to the

office with her “usual pain complaints,” but had neither made a physical therapy

appointment nor started on Neurontin as prescribed two months earlier. During

that visit, Dr. Tian “re-emphasized with [Claimant] the need to obtain a physical

therapy evaluation with a goal of being placed on a physical therapy regimen.” Dr.

Tian and Claimant agreed that, among other actions, Claimant would “make an

appointment for physical therapy evaluation” and that she would “follow up in 4-6

weeks.” But, during a follow-up visit in September 2011, Dr. Tian noted that

Claimant “has had somewhat haphazard follow ups with multiple cancellations in

the past,” and she had still not “schedul[ed] appointments as discussed or start[ed]

medications as described.”

When asked by the ALJ in January 2014 about her treatment, prescribed

medications, and physical therapy, Claimant stated that “there wasn’t enough

money to pay for medical bills” following her car accident in or about 2009, that

“they took away [her] Medi-Cal, and [she doesn’t] have insurance,” and that she

3 had not tried physical therapy as recommended by her doctor because “[she

doesn’t] have insurance.” The record shows, however, that Claimant was, in fact,

insured at the time that many of the recommended courses of treatment and

medications were prescribed. Notably, Claimant filled various prescriptions and

had health coverage with Medi-Cal at numerous points through at least August

2012. Thus, there is evidence in the record to support the ALJ’s finding that

Claimant failed to follow some prescribed courses of treatment during the relevant

period, even when she had health coverage.

b. The ALJ provided other valid reasons for discounting Alvarez’s

testimony, and substantial evidence supports the ALJ’s conclusions. Specifically,

Claimant engaged in part-time employment in or about 2017 and 2018. Her work

consisted of “helping a mother and her child, getting them medication and taking

them to their medical appointments.” Claimant also “help[ed] them organize or

put away their food in the refrigerator” and pushed the mother in her wheelchair to

her appointments. Claimant testified that pushing the wheelchair became difficult

over time because of pain in her back. But she also testified to another reason why

her job came to an end: the “mother was admitted to the hospital.”

Despite testifying that her symptoms worsened over time, Claimant engaged

in part-time work after the date last insured, a permissible reason for the ALJ to

discount her testimony about the severity of her symptoms. See Molina, 674 F.3d

4 at 1113 (noting that an ALJ may discredit a claimant’s testimony when the

claimant participates in everyday activities involving “capacities that are

transferable to a work setting”).

Second, the ALJ improperly speculated by stating that the medical records

should have included notes “on the issue of muscular atrophy” if Claimant’s

condition were “as pronounced as [she] contends.” See Tommasetti, 533 F.3d at

1042 (noting that an ALJ may not rely on his “own speculation”). But that error,

too, is harmless. It is clear from reading the decision as a whole that the ALJ’s

passing reference to this issue—consisting of a single sentence in an exhaustive

analysis—did not affect the outcome.

2. The ALJ did not err in giving little or limited weight to the opinions of

Claimant’s treating physicians, Drs. Karthikeya Devireddy and Krisknia Polasa,

and to the opinion of an examining physician, Dr. Dale Van Kirk. An ALJ may

discount the contradicted opinions of treating and examining physicians so long as

the ALJ provides “‘specific and legitimate reasons’ supported by substantial

evidence in the record.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)

(citation omitted).1

1 Claimant filed her claim before 2017. Accordingly, the applicable pre-2017 standard permits an ALJ to reject the contradicted opinion of a treating or examining physician so long as the ALJ provides “specific and legitimate reasons that are supported by substantial evidence in the record.” Carmickle, 533 F.3d at 1164 (quoting Lester, 81 F.3d at 830–31).

5 In support of his determination, the ALJ cited inconsistencies between the

physicians’ opinions and the medical evidence, including the treating physicians’

own progress notes and examination findings. See Tommasetti, 533 F.3d at 1041

(noting that an inconsistency between a physician’s opinion and the medical record

constitutes a specific and legitimate reason to discount the opinion). Throughout

Claimant’s progress notes and physical examinations, Dr. Devireddy reported

mostly normal results consisting of no “general distress,” except for some neck

pain and tenderness and some arm numbness. Similarly, Dr. Polasa reported

generally normal findings in many of her physical examinations of Claimant,

except for some joint and back pain, ankle swelling, and depression. But the

opinions of Drs. Devireddy and Polasa allege that Claimant had a more severe

impairment than is supported by their own notes. See Rollins v. Massanari, 261

F.3d 853, 856 (9th Cir. 2001) (noting that an ALJ permissibly discounted the

treating physician’s opinion where, among other factors, the examination notes did

not include “the sort of description and recommendations one would expect to

accompany a finding” of disability). The ALJ also permissibly relied on the long

gap in time between Dr. Van Kirk’s opinion and Claimant’s date last insured.

3. The ALJ did not err by assigning limited weight to the lay testimony

provided by Claimant’s husband, son, and friend. The ALJ considered the lay

testimony that “describ[ed] symptoms that are generally in accord with the overall

6 record,” but he discounted the testimony to the extent that it “lack[ed] objective

foundation and guidance which would be relevant in evaluating the degree to

which impairments impact the claimant’s function.” The ALJ’s decision is not a

model of clarity. But we read his decision to mean that he accepted the lay

testimony only to the extent that it was consistent with the record, which is a

“germane” and proper consideration. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.

2001); see also Bayliss v. Barnhart, 427 F.3d. 1211, 1218 (9th Cir. 2005) (holding

that the ALJ properly accepted lay testimony that was “consistent with the

record . . . and the objective evidence in the record” and properly “rejected portions

of [the] testimony that did not meet this standard”).

4. Finally, the ALJ did not err in his Step 5 determination when, considering

Claimant’s age, education, work experience, and the testimony of the vocational

expert, he concluded that Claimant could perform a significant number of jobs in

the national economy. Claimant merely “restates her argument that the ALJ’s RFC

finding did not account for all her limitations because the ALJ improperly

discounted her testimony[,] . . . the testimony of medical experts,” and the lay

witnesses’ testimony. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76

(9th Cir. 2008). For the reasons noted above, the ALJ did not err. Because the

ALJ permissibly discounted some physicians’ opinions, Claimant’s testimony, and

the lay witnesses’ testimony, the hypothetical given to the vocational expert was

7 proper. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir.

2004) (“The ALJ was not required to incorporate evidence from the opinions of

[claimant]’s treating physicians, which were permissibly discounted.”); see also

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006) (“[I]n

hypotheticals posed to a vocational expert, the ALJ must only include those

limitations supported by substantial evidence.”).

AFFIRMED.

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