NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE MARIE PRICE, No. 21-35595
Plaintiff-Appellant, D.C. No. 3:20-CV-5815-DWC
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
David W. Christel, Magistrate Judge, Presiding
Submitted July 8, 2022**
San Francisco, California
Before: HAWKINS and BUMATAY, Circuit Judges, and MOSKOWITZ,***
District Court Judge.
Michelle Price appeals from the district court’s order affirming the
*
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 Barry T. Moskowitz, District Judge for the United
States District Court for the Southern District of California, sitting by designation.
Commissioner of Social Security’s denial of disability insurance benefits. “We
review the district court’s order affirming the [Administrative Law Judge]’s denial
of social security benefits de novo and will disturb the denial of benefits only if the
decision contains legal error or is not supported by substantial evidence.” Lambert
v. Saul, 980 F.3d 1266, 1270 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533
F.3d 1035, 1038 (9th Cir. 2008)) (internal quotation marks omitted). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Price argues that the Administrative Law Judge (“ALJ”) improperly
discounted her testimony regarding her physical limitations. The ALJ concluded
that Price had been diagnosed with atrial fibrillation and congestive heart failure but
that the medical evidence did not support her testimony about the severity of her
reported symptoms. Specifically, the ALJ discounted Price’s claims that chest pains
prevented her from being able to “walk around the block,” and that she was “short
of breath all the time.” Price contends that the ALJ failed to provide “specific, clear
and convincing reasons” supporting these findings. Garrison v. Colvin, 759 F.3d
995, 1014–15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th
Cir. 1996)).
The ALJ properly considered Price’s noncompliance with cardiac treatment
and medication, her testimony that her condition improved after her 2017 ablation
procedure, her reports of being able to perform daily activities, her ability to
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occasionally work after the onset date of her symptoms, and reports from treatment
providers recording mild symptoms. These are sufficient “clear and convincing
reasons” for the ALJ to discount Price’s testimony. See Ghanim v. Colvin, 763 F.3d
1154, 1163 (9th Cir. 2014).
2. Price also argues that the ALJ improperly assessed the medical
evidence when he determined Price’s residual functional capacity (“RFC”). Price
asserts that the ALJ made the following errors: he (1) gave “little weight” to Dr.
Myrna Palasi’s opinion, (2) failed to fully include the opinion of Dr. Tasmyn Bowes
and Dr. Jack Norris in the RFC assessment, and (3) failed to account for Price’s
history of emergency room visits. Substantial evidence supports the ALJ’s
assessment of the medical evidence and consequent RFC determination.
First, the ALJ did not err by giving little weight to Dr. Palasi’s medical
opinion. Dr. Palasi opined that Price was unable to sustain a 40-hour work week
and recommended a less-than-sedentary RFC. However, as the ALJ noted, Dr.
Palasi did not personally examine Price and her opinion contained an apparent error
when she listed deep vein thrombosis as a basis for recommending a lower RFC,
even though testing revealed only superficial venous thrombosis. Additionally, the
ALJ correctly noted that Dr. Palasi’s report was “inconsistent with the clinical
findings of treatment providers who found [Price] had irregular heart rate at times
but otherwise had unremarkable physical exams.” These are specific and legitimate
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reasons for the ALJ to discount Dr. Palasi’s opinion. See Ford v. Saul, 950 F.3d
1141, 1156 (9th Cir. 2020).
Second, substantial evidence supports the ALJ’s analysis of the opinions of
Dr. Bowes and Dr. Norris. Price argues that the doctors found that she had
“significant” limitations in performing work activities, and these findings were not
included in the ALJ’s RFC. Both opinions came in the form of a checklist, with the
descriptive work limitation options of “None or Mild,” “Moderate,” “Marked,” or
“Severe.” Although “Moderate” is defined as a “significant limitation,” in context,
that does not imply a complete inability to perform work. “Moderate” is the second
mildest of the options, and only a “Severe” limitation is defined as an “inability to
perform the particular activity in regular competitive employment.” Therefore, the
ALJ’s RFC finding corresponds with the opinions of Dr. Bowes and Dr. Norris.
Finally, Price alleges that the ALJ improperly evaluated the medical evidence
from Price’s many trips to the emergency room and from other non-examining
physicians. Those reports and opinions generally describe Price as suffering from
chest pains and occasional mental distress. However, the ALJ accounted for these
limitations when he calculated the RFC and substantial evidence supports his
findings about the severity of Price’s limitations.1
1
In her opening brief, Price argued that the Commissioner of the Social Security
Administration was appointed unconstitutionally, which divested the ALJ of
4
AFFIRMED.
authority over Price’s case. However, she retracted the argument in her reply brief,
so we do not consider it.
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