James Dunn v. Kilolo Kijakazi

FILED

NOT FOR PUBLICATION

MAY 11 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES E. DUNN, No. 22-35334

Plaintiff-Appellant, D.C. No. 3:21-cv-05413-MLP v.

MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington

Michelle L. Peterson, Magistrate Judge, Presiding Submitted May 9, 2023** Seattle, Washington

Before: HAWKINS, TALLMAN, and IKUTA, Circuit Judges.

James Dunn appeals the district court’s affirmance of the Commissioner of Social Security’s denial of his application for disability insurance benefits under Title II of the Social Security Act. We review the underlying decision of the

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. administrative law judge (“ALJ”) to determine whether it is based on legal error or not supported by substantial evidence. Lambert v. Saul, 980 F.3d 1266, 1270 (9th Cir. 2020) (citation omitted). We affirm.1

The ALJ’s decision to assign low weight to the opinion of Dr. Lear (an examining physician) was based on specific and legitimate reasons supported by substantial evidence, including that the opinion was inconsistent with (1) the overall medical evidence in the record, such as the treatment notes—which state that Dunn had “normal gait,” “strong neurological functioning of the extremities,” “stable postsurgical findings,” and no edema, see Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); (2) evidence of Dunn’s activities of daily living, see Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020); and (3) evidence of Dunn’s demonstrated ability to concentrate.

The ALJ did not err in assigning low weight to Dunn’s testimony because the ALJ offered “specific, clear, and convincing reasons for discrediting [Dunn]’s” testimony. Garrison, 759 F.3d at 1010. The ALJ discussed in detail several inconsistencies between that testimony and the record before the Commissioner, including the objective medical evidence presented to the Commissioner, Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022), Dunn’s reported activities of daily living, Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004); see also Smartt, 53 F.4th at 500 n.3, and the absence of medical evidence supporting Dunn’s stated lack of improvement, diminished memory and concentration, leg swelling, and need for an assistive device.2

AFFIRMED.