James E. Dunn v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES E. DUNN,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 22-35334
D.C. No. 3:21-cv-05413-MLP
MEMORANDUM*
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
FILED
MAY 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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.
1 Because Dunn’s claim for benefits was filed before March 27, 2017, the
Social Security regulations and standards as propounded prior to the 2017
amendments apply to this case. See 20 C.F.R. § 404.1527.
2

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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.
2 Dunn forfeited his remaining arguments “because he did not raise them
before the district court.” Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006);
see also Smartt, 53 F.4th at 495 (“We need not consider [claimant]’s remaining
arguments, which are waived because [he] raises them for the first time on
appeal.”).
3

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