NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY MARIE TUCKER, No. 20-36063
Plaintiff-Appellant, D.C. No. 1:19-cv-00068-TJC
v.
KILOLO KIJAKAZI, Acting Commissioner MEMORANDUM*
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Timothy J. Cavan, Magistrate Judge, Presiding
Submitted December 10, 2021**
San Francisco, California
Before: GOULD and COLLINS, Circuit Judges, and EZRA,*** District Judge.
Appellant Kimberly Marie Tucker (“Appellant”) applied for Supplemental
Security Income (“SSI”) on January 22, 2013, alleging she was unable to work due
*
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 David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
to impairments including impingement of the bilateral shoulders, osteoarthritis of
the right shoulder, degenerative disc disease of the cervical spine, obesity, major
depressive disorder, anxiety disorder, posttraumatic stress disorder, and personality
disorder. Appellant’s claims were initially denied on February 28, 2013, and were
denied upon reconsideration on October 4, 2013.
Before this court is Administrative Law Judge Michele M. Kelley’s
decision, dated February 15, 2019,1 denying Appellant’s application for SSI, which
Magistrate Judge Timothy J. Cavan affirmed on October 14, 2020. Appellant then
filed the present appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
review the Magistrate Judge’s decision affirming the ALJ’s denial of benefits de
novo. See Webb v. Barnhart, 433 F.3d 683, 685–86 (9th Cir. 2005).
Appellant contends Administrative Law Judge Michele M. Kelley (the
“ALJ”) erred by not (1) providing specific and legitimate reasons for rejecting
certain medical opinion evidence; (2) identifying the portions of Appellant’s
testimony the ALJ found not credible and explaining the evidence undermining her
testimony; and (3) incorporating all of Appellant’s impairments in the hypothetical
posed to the vocational consultant. Appellant also argues her case should be
remanded for an award of benefits. We hold that the ALJ did not commit
1
The ALJ’s February 2019 decision was her second in this case because the ALJ’s
initial decision denying benefits, dated February 13, 2015, was remanded by the
district court for further proceedings.
2
reversible error on any of the grounds Appellant asserts and affirm the district
court’s judgment.
In order to reject Appellant’s medical opinion evidence, the ALJ was
required to “make findings setting forth specific, legitimate reasons for doing so
that are based on substantial evidence in the record.” Magallanes v. Bowen, 881
F.2d 747, 751 (9th Cir. 1989) (quoting Winans v. Bowen, 853 F.2d 643, 647
(9th Cir. 1987)). The ALJ explained her decision to discount certain aspects of the
medical opinion evidence Appellant provided by describing in detail the opinions’
inconsistencies (1) with the providers’ own records and opinions; (2) with the
observations and opinions of other medical sources; and (3) with Appellant’s own
testimony and activities. By “setting out a detailed and thorough summary of the
facts and conflicting clinical evidence, stating [her] interpretation thereof, and
making findings[,]” the ALJ met the applicable burden of providing specific and
legitimate reasons based on substantial evidence in the record. Id. at 753 (quoting
Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986))
Because the ALJ rejected portions of Appellant’s testimony, the ALJ was
required to offer “specific, clear and convincing reasons for doing so.” Trevizo
v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison v. Colvin, 759
F.3d 995, 1014–15 (9th Cir. 2014)). In making a credibility determination, ALJs
may “consider inconsistencies either in the claimant’s testimony or between the
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testimony and the claimant’s conduct, . . . and whether the claimant engages in
daily activities inconsistent with the alleged symptoms.” Molina v. Astrue, 674
F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks omitted), superseded on
other grounds by 20 C.F.R. § 404.1502(a); see also Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (holding ALJ properly discounted the
claimant’s testimony based on inconsistencies in the testimony, claimant’s daily
activities, and the objective medical evidence).
Here, the ALJ offered a detailed description of the internal inconsistencies in
Appellant’s testimony and daily activities, as well as how Appellant’s testimony
conflicted with medical evidence in the record. The ALJ thus properly provided
specific, clear, and convincing reasons for discounting Appellant’s testimony.
Finally, Appellant contends the ALJ erred by failing to include every
functional limitation Appellant claims in the hypothetical posed to the vocational
expert. She cites Embrey v. Bowen, 849 F.2d 418 (9th Cir. 1988), in support.
However, Embrey specifically provides that limitations must be included in an
ALJ’s hypothetical “[u]nless the record indicates that the ALJ had specific and
legitimate reasons for disbelieving a claimant’s [limitation evidence].” Id. at 423
(emphasis added). Here, the ALJ’s hypothetical mirrored Appellant’s residual
functional capacity, which the ALJ determined based on her credibility findings
and evaluation of the medical evidence. Thus, because we conclude that there was
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no error in the ALJ’s consideration of Appellant’s testimony and medical opinion
evidence, we also hold that the ALJ did not err by including in the hypothetical
only those limitations she found applicable.
We conclude that the ALJ’s decision is free of reversible error and affirm.
AFFIRMED.
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