RUTH FARLOW V. KILOLO KIJAKAZI

                             FOR PUBLICATION                          FILED
                   UNITED STATES COURT OF APPEALS                     NOV 16 2022
                                                                   MOLLY C. DWYER, CLERK
                                                                    U.S. COURT OF APPEALS
                          FOR THE NINTH CIRCUIT

RUTH FARLOW,                                  No.   21-35890

               Plaintiff-Appellant,           D.C. No. 3:20-cv-05603-MAT

 v.
                                              OPINION
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,

               Defendant-Appellee.

                  Appeal from the United States District Court
                    for the Western District of Washington
                 Mary Alice Theiler, Magistrate Judge, Presiding

                    Argued and Submitted October 19, 2022
                             Seattle, Washington

Before: Richard C. Tallman, Ryan D. Nelson, and Danielle J. Forrest, Circuit
Judges.

                           Opinion by Judge Tallman
                                    SUMMARY *


                                   Social Security

   The panel affirmed the district court’s decision affirming the denial of claimant’s
application for disability benefits under Title II of the Social Security Act.

   Claimant argued that the administrative law judge (“ALJ”) erred by rejecting the
uncontested opinion of Dr. Staley, a non-examining physician, that supported her
claim. Under the pre-2017 regulations that apply to the claim, ALJs are required to
give greater weight to certain medical opinions. To reject the uncontested opinion
of an examining or treating doctor, an ALJ must provide “clear and convincing”
reasons supported by substantial evidence.

    The panel held that the “clear and convincing” standard did not apply to Dr.
Staley’s opinion because he never treated or examined claimant. Rather his opinion
was based solely on a review of claimant’s medical records. The panel held that
nothing in the relevant regulations required an ALJ to defer to an opinion from a
non-treating, non-examining medical source. In rejecting Dr. Staley’s opinion, the
ALJ cited specific contradictive medical evidence in the record. In making these
findings, the ALJ cited the record at length. The panel concluded that this satisfied
the requirements of Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998), the
relevant regulations, and the substantial evidence standard.

    Claimant also argued that the ALJ erred in rejecting her symptom testimony and
a similar statement offered by her husband. The panel held that the ALJ provided
clear and convincing reasons for rejecting claimant’s lay testimony, including
inconsistencies in the medical record and in her statements about her daily activities.

   The panel concluded that the district court properly concluded that the ALJ’s
denial of benefits was supported by substantial evidence.




   *
     This summary constitutes no part of the opinion of the court. It has been
prepared by court staff for the convenience of the reader.
                                     COUNSEL


Christopher H. Dellert (argued), Dellert Baird Law Offices PLLC, Spanaway,
Washington, for Plaintiff-Appellant.

Lars J. Nelson (argued), Assistant Regional Counsel; Willy Le, Acting Regional
Chief Counsel; Diana Andsager; Office of the General Counsel, Social Security
Administration, Seattle, Washington; Kerry Jane Keefe, Assistant United States
Attorney; Nicholas W. Brown, United States Attorney; Office of the United States
Attorney, Seattle, Washington; for Defendant-Appellee.


                                      OPINION

TALLMAN, Circuit Judge:

      Ruth Farlow appeals the district court’s decision affirming the denial of her

claim for disability benefits under Title II of the Social Security Act. Farlow argues

the Social Security Administration’s administrative law judge (“ALJ”) erred by

rejecting the uncontested opinion of a non-examining physician that supported her

claim. We affirm.

                                           I

      Farlow suffered a heart attack and was hospitalized on July 25, 2013. Medical

records show that at the time of Farlow’s hospitalization, her heart’s ejection fraction

was 50%. 1 Farlow continued to receive follow-up care for her heart condition after

she was discharged from the hospital. In April 2015, a cardiac stress test showed


1
 “Ejection fraction” is the percentage of blood which leaves the heart’s ventricle
each time it contracts. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 4.00D(1)(i).

                                           2
Farlow had “normal heart function” and revealed “no evidence of [her] old heart

attack.” The same test found Farlow’s ejection fraction was 77%.

      Farlow applied for disability benefits on February 23, 2017. She claimed that

after the heart attack, she “wasn’t strong enough” to return to work. Farlow said she

suffered chest pain, was short of breath, and struggled to do basic tasks without

taking frequent breaks.    Farlow’s initial claim was denied, and she requested

reconsideration. On reconsideration, state agency consultant Dr. Norman Staley was

asked to evaluate Farlow’s functional capacity. Dr. Staley reviewed Farlow’s

medical records and opined that she could stand or walk for six hours and lift no

more than 20 pounds—a finding that would limit her to performing light exertion

work. Farlow’s request for reconsideration was denied, and she requested a hearing

before an ALJ.

      The ALJ denied Farlow’s claim at step four of the sequential evaluation

process.2 He concluded Farlow still had the capacity to perform medium exertion

work with some restrictions, meaning she could return to work at her last job. The

ALJ gave little weight to Dr. Staley’s opinion that Farlow should be limited to light

exertion work. The ALJ gave less weight to Dr. Staley’s opinion in part because he



2
  Social Security regulations establish a five-step sequential process for evaluating
disability claims. See Woods v. Kijakazi, 32 F.4th 785, 787 n.1 (9th Cir. 2022). Step
four provides that a claimant is not disabled if, despite medical impairments, she
retains the residual functional capacity to perform past relevant work. Id.

                                         3
relied on Farlow’s initial 2013 ejection fraction reading to support his opinion

without addressing the 2015 test that showed normal cardiac function. No other

doctor offered an opinion about Farlow’s functional capacity, and the Commissioner

concedes Dr. Staley’s opinion would limit Farlow to light exertion work under the

applicable regulations if it had been credited.

      The agency’s Appeals Council denied Farlow’s request for review. Farlow

sought judicial review, and the district court affirmed the ALJ’s denial of benefits.

Farlow filed this timely appeal. See Fed. R. App. P. 4(a)(1)(B)(ii).

                                          II

      A district court’s decision affirming an ALJ’s denial of benefits is reviewed

de novo. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded on

other grounds by regulation, Revisions to Rules Regarding the Evaluation of

Medical Evidence, 82 Fed. Reg. 5844, 5863 (Jan. 18, 2017) (Codified at 20 C.F.R.

§ 404.1502(a)). An ALJ’s denial of benefits is reviewed for substantial evidence or

legal error. Molina, 674 F.3d at 1110. Substantial evidence is “relevant evidence”

that “a reasonable mind might accept as adequate to support a conclusion.” Biestek

v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consolidated Edison v. NLRB,

305 U.S. 197, 229 (1938)). Even if the evidence is “susceptible to more than one

rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v.

Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).


                                          4
                                         A

      Farlow alleges that the ALJ erred in rejecting Dr. Staley’s opinion. Farlow

argues that because Dr. Staley’s opinion was the only functional assessment in the

record, it could not be rejected by the ALJ without a “clear and convincing” reason.

Farlow claims the ALJ improperly discounted Dr. Staley’s expertise in favor of the

ALJ’s own lay, non-expert opinion.

      Under the pre-2017 regulations that apply to Farlow’s claim, 3 ALJs are

required to give greater weight to certain medical opinions. See Lester v. Chater, 81

F.3d 821, 830 (9th Cir. 1995), superseded on other grounds by regulation, Revisions

to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5852

(Jan. 18, 2017) (codified at 20 C.F.R. pts. 404 & 416), as recognized in Woods, 32

F.4th at 789–90. Opinions from treating physicians receive more weight than

opinions from examining physicians, and opinions from examining physicians

receive more weight than opinions from non-examining physicians. Lester, 81 F.3d

at 830–31. To reject the uncontested opinion of an examining or treating doctor, an

ALJ must provide “clear and convincing” reasons supported by substantial evidence.

Id. at 830.




3
 The Social Security Administration has altered the regulations which govern the
evaluation of medical evidence for claims filed on or after March 27, 2017. See 20
C.F.R. § 404.1520c. Farlow’s claim was filed prior to this change.

                                         5
      The “clear and convincing” standard does not apply to Dr. Staley’s opinion

because he never treated or examined Farlow. Rather, his opinion was based solely

on a review of her medical records. Farlow now asks us to hold that ALJs must give

similar deference to uncontested opinions from non-examining physicians like Dr.

Staley. We cannot agree.

      In evaluating the weight given to a non-examining, non-treating doctor’s

opinion, we have held that an ALJ “may reject the opinion of a non-examining

physician by reference to specific evidence in the medical record.” Sousa v.

Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). Inherent in this standard is a

presumption that ALJs are, at some level, capable of independently reviewing and

forming conclusions about medical evidence to discharge their statutory duty to

determine whether a claimant is disabled and cannot work. More importantly, Sousa

clearly announces a standard lower than the one that Farlow asks us to apply.

      Our precedent requires ALJs to give more weight to treating and examining

sources because that is what the pre-2017 regulations required—not because such a

requirement exists in the Social Security Act. See Woods, 32 F.4th at 790–91. The

regulations say an ALJ must consider each opinion from a medical source along with

other relevant evidence. 20 C.F.R. § 404.1527(b). An ALJ must give more weight

to opinions from treating or examining physicians, § 404.1527(c)(1)–(2), and

consider whether each opinion is supported by evidence and consistent with the


                                         6
record. § 404.1527(c)(3)–(4). The ALJ must also consider factors such as a source’s

specialized knowledge about disability programs or an area of medicine.             §

404.1527(c)(5)–(6). Nothing in the relevant regulations requires an ALJ to defer to

an opinion from a non-treating, non-examining medical source.

      Here, in rejecting Dr. Staley’s opinion, the ALJ cited specific contradictive

medical evidence in the record. Sousa, 143 F.3d at 1244. The ALJ noted that Dr.

Staley had based his opinion on Farlow’s 2013 ejection fraction reading without

mentioning the 2015 test results which showed “no evidence of [her] old heart

attack.” The ALJ also evaluated Dr. Staley’s opinion under the relevant regulations.

He explained that he gave less weight to Dr. Staley’s opinion because Dr. Staley did

not examine Farlow, did not provide a persuasive basis for his opinion, and his

opinion was not consistent with the record. See § 404.1527(c)(1), (3)–(4). In making

these findings, the ALJ cited the record at length. This satisfies the requirements of

Sousa, the relevant regulations, and the substantial evidence standard.

                                          B

      Farlow also argues that the ALJ erred in rejecting her symptom testimony and

a similar statement offered by her husband. We agree with the district court that the

ALJ provided clear and convincing reasons for rejecting Farlow’s lay testimony,

including inconsistencies in the medical record and in her statements about her daily

activities. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th


                                          7
Cir. 2008). We also agree that because the statement offered by Farlow’s husband

was similar to her own testimony, any error in the ALJ’s evaluation of this

supporting evidence was ultimately harmless. See Molina, 674 F.3d at 1117.4

                                        III

      The district court properly concluded that the ALJ’s denial of benefits was

supported by substantial evidence.

      AFFIRMED.




4
  Farlow also raised a constitutional argument relating to the Social Security
Commissioner’s tenure protection but withdrew it after publication of our decision
in Kaufmann v. Kijakzi, 32 F.4th 843, 846 (9th Cir. 2022).

                                        8