NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERBERT GOSS, Jr., No. 20-15978
Plaintiff-Appellant, D.C. No. 3:18-cv-06832-JSC
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Submitted November 17, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, McKEOWN, Circuit Judge, and MOLLOY,***
District Judge.
Herbert Goss, Jr. appeals the district court’s order affirming the decision of
*
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 Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
an administrative law judge (“ALJ”) denying him disability insurance benefits and
supplemental security income under Titles II and XVI of the Social Security Act.
We review de novo the district court’s decision “and reverse only if the ALJ’s
decision was not supported by substantial evidence in the record as a whole or if
the ALJ applied the wrong legal standard.” Ghanim v. Colvin, 763 F.3d 1154,
1159 (9th Cir. 2014) (citation omitted). “Even when the evidence is susceptible to
more than one rational interpretation, we must uphold the ALJ’s findings if they
are supported by inferences reasonably drawn from the record.” Id. at 1159–60
(citation omitted). We have jurisdiction under 28 U.S.C. § 1291 and affirm.
The ALJ did not err in giving little weight to the sit, stand, walk, and
manipulative limitations offered in the medical opinion dated November 19, 2014.
Like the ALJ and the district court, we assume this opinion was issued by Goss’s
treating physician, although the record is far from clear. However, the restrictive
limitations in the opinion conflict with the views of three other physicians,
including an examining physician. “When confronted with conflicting medical
opinions, an ALJ need not accept a treating physician’s opinion that is conclusory
and brief and unsupported by clinical findings.” Tonapetyan v. Halter, 242 F.3d
1144, 1149 (9th Cir. 2001). Here, the ALJ identified “specific and legitimate
reasons,” id. (citation omitted), for partially discounting the November 19, 2014
opinion, noting that the above referenced limitations were both overly restrictive
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and not linked to any objective evidence. Substantial evidence supports the ALJ’s
reasoning on this point.
The ALJ offered specific, clear, and convincing reasons for discrediting
Goss’s testimony as to the intensity, persistence, and limiting effects of his
diabetes and left shoulder injury. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036
(9th Cir. 2007). The ALJ noted that Goss’s diabetes is stable when he takes his
medication and that past examinations have shown his diabetes is not associated
with fatigue, pain, weight gain, or a limp. The ALJ further noted that Goss’s
doctors consistently report he suffers from only moderate limitations to his left
arm’s range of motion. Finally, the ALJ noted that Goss’s frequent use of a
bicycle was inconsistent with his testimony as to the severity of his limitations.
See id. at 1040 (stating ALJ may, when assessing claimant’s testimony, consider
“whether the claimant engages in daily activities inconsistent with the alleged
symptoms”). The ALJ’s conclusion that the objective evidence partially
contradicted Goss’s testimony is adequately supported by the record and, as such,
we will not “second-guess that decision.” Morgan v. Comm’r of Soc. Sec. Admin.,
169 F.3d 595, 600 (9th Cir. 1999) (citation omitted).
The ALJ did not err at step five of the sequential evaluative process. The
overarching question at step five is “whether substantial gainful work exists in the
national economy for the claimant despite his impairment”; if so, “the claimant is
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considered ‘not disabled.’” Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000)
(quoting 42 U.S.C. § 423(d)(2)(A)). As we have previously explained:
To determine if substantial gainful work exists for the claimant, the ALJ
uses [the] Medical–Vocational Guidelines (“grids”) to consider
claimants with substantially uniform levels of impairment. When the
grids do not completely describe the claimant’s abilities and limitations
. . . the grids are inapplicable and the ALJ must take the testimony of a
[Vocational Expert (“VE”)].
Id. (citations omitted). It is immaterial whether Goss’s residual functional capacity
(“RFC”) was closer to the definition of light work or sedentary work. Because
Goss’s RFC fell “between two grids,” id. at 870, the grids were inapplicable and
the ALJ was required to consult with a VE to determine whether substantial gainful
work existed for Goss. The ALJ did precisely that and, based on the VE’s
testimony, concluded that Goss was not disabled. This finding is supported by
substantial evidence.
AFFIRMED.
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