MISTY SMARTT V. KILOLO KIJAKAZI
53 F.4th 489
9th Cir.2022Background
- In June 2015 Smartt slipped, suffered a cervical injury with fractured vertebrae, and underwent successful spinal surgery; post-op records showed objective improvement in strength and ambulation.
- Smartt treated intermittently at a pain clinic, used opioid therapy, reported high subjective pain, and had some hospitalizations for other conditions between 2016–2019.
- Dr. Karandish (Pain Center physician) saw Smartt three times over three years primarily to complete disability paperwork and completed forms indicating extreme, work-preclusive limitations.
- The agency-ordered consultative examiner, Dr. Gordon, examined Smartt and concluded she could perform light work (sitting/standing/walking limited periods; up to 20 lbs), with assistance needed only beyond about 50 feet.
- The ALJ found Dr. Karandish’s extreme restrictions unsupported by the medical record, gave significant weight to Dr. Gordon, discounted Smartt’s subjective symptom testimony (finding inconsistencies with records, activities, and conservative treatment), and denied benefits.
- The district court affirmed; the Ninth Circuit affirmed, holding the ALJ provided legally adequate reasons supported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Weight of treating physician opinion | Karandish's assessments of extreme limitations should be credited/controlling | Karandish only saw Smartt sporadically for paperwork; opinions contradicted objective records | ALJ properly discounted Karandish; specific, legitimate, substantial-evidence reasons given |
| Weight of consultative examiner opinion | Gordon's report is internally inconsistent (walker/cane) and should not be given significant weight | Gordon's findings are consistent with exam and other records; ALJ reasonably resolved ambiguities | ALJ permissibly gave significant weight to Gordon; findings consistent with record |
| Credibility of subjective pain testimony | ALJ failed to meet the 'clear and convincing' standard for rejecting testimony | ALJ cited clear, convincing reasons: conflicts with objective evidence, inconsistent daily activities, and generally conservative treatment | ALJ met the clear-and-convincing standard; discounting of testimony upheld |
| Consideration of other arguments on appeal | Various additional challenges raised for first time on appeal | Issues not preserved below and thus waived | Court declined to consider them as waived (no exception applied) |
Key Cases Cited
- Lester v. Chater, 81 F.3d 821 (9th Cir.) (treating physician deference and when to give controlling weight)
- Tommasetti v. Astrue, 533 F.3d 1035 (9th Cir.) (ALJ as final arbiter of medical ambiguities)
- Garrison v. Colvin, 759 F.3d 995 (9th Cir.) (clear-and-convincing standard for rejecting symptom testimony)
- Burch v. Barnhart, 400 F.3d 676 (9th Cir.) (ALJ may not reject testimony solely for lack of objective corroboration)
- Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155 (9th Cir.) (contradiction with medical record can suffice to discount testimony)
- Revels v. Berryhill, 874 F.3d 648 (9th Cir.) (need for specific and legitimate reasons when rejecting treating/examining opinions)
- Thomas v. Barnhart, 278 F.3d 947 (9th Cir.) (daily activities can undercut claims of disabling pain)
- Molina v. Astrue, 674 F.3d 1104 (9th Cir.) (ALJ not required to accept every allegation of disabling pain)
- Greger v. Barnhart, 464 F.3d 968 (9th Cir.) (issues forfeited if not raised below)