Michael Kallenbach v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL KALLENBACH,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 17-35756
No. 3:17-cv-05127-MAT
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted March 27, 2019**
Before: FARRIS, O’SCANNLAIN, and TROTT, Circuit Judges.
Michael Kallenbach 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 have jurisdiction under 28
U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827
* 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).
FILED
MAR 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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F.3d 872, 875 (9th Cir. 2016), and we affirm.
Any error the ALJ committed in finding Kallenbach’s impairments did not
meet Listing 1.04(A) was harmless. Regarding the Listing’s first requirement that
the claimant have evidence of nerve root compression, the record contains
evidence of nerve root compromise but also indicates this symptom improved. See
20 C.F.R. Pt. 404, Subpt. P, App.1, Listing 1.04. Kallenbach’s degree of
improvement is not entirely clear from the medical records both parties cite.
Although the “ALJ is responsible for . . . resolving ambiguities” in the medical
record, Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995), the ALJ did not
specifically address this ambiguity. However, this error was harmless, as
Kallenbach has not demonstrated he has met all of the Listing’s remaining criteria.
Regarding Listing 1.04’s second requirement, “limitation of motion of the
spine,” 20 C.F.R. Pt. 404, Subpt. P, App.1, Listing 1.04, Kallenbach cites notes
from a November 2013 examination that state he had “decreased flexion of [the]
lumbar spine,” indicating he fulfilled this criterion. However, the medical evidence
does not show Kallenbach met Listing 1.04’s third requirement of motor loss
accompanied by sensory or reflex loss. 20 C.F.R. Pt. 404, Subpt. P, App.1, Listing
1.04(A). Exam results from November 2013 specify he had no deep tendon
reflexes in his Achilles but also state Kallenbach’s “[m]otor [functions] . . . are
intact in the bilateral extremities.” In addition, regarding the Listing’s fourth

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criterion—positive straight-leg raising test results, both sitting and supine, id.—
November 2013 examination results state Kallenbach had a positive left straight-
leg raise but do not specify if the testing conducted included sitting, supine, or both
types of straight-leg testing. Finally, concerning the Listing’s twelve-month
durational requirement, while Kallenbach cites notes from a November 2014
medical appointment, stating these show he “continues to have left low back
pain[,] . . . numbness and weakness in the left foot[,] . . .[and] a mildly antalgic
gait,” this does not show that a year later Kallenbach still met the specific criteria
for Listing 1.04. See 20 C.F.R. Pt. 404, Subpt. P, App.1, Listing 1.04. As a result,
any error the ALJ committed by not directly addressing the ambiguous evidence
concerning whether Kallenbach fulfilled the first requirement of the Listing was
harmless, as substantial evidence in the record supports the ALJ’s finding that
Kallenbach did not fulfill all of the Listing’s requirements for at least twelve
months. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).
We reject Kallenbach’s argument that the ALJ erred by failing to sufficiently
discuss the evidence that supported the conclusion that Kallenbach did not fulfill
the Listing’s requirements. Kallenbach cites Marcia v. Sullivan, 900 F.2d 172, 176
(9th Cir. 1990), in support. However, as the district court pointed out, Marcia
applies when a claimant attempts to establish his conditions equal, rather than
meet, a listing, and requires ALJs to explain why evidence does or does not

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demonstrate equivalency. Because Kallenbach has not contended his conditions
equal Listing 1.04, Marcia is inapposite.
The ALJ provided specific, clear, and convincing reasons for discounting
Kallenbach’s testimony, including inconsistencies between Kallenbach’s
allegations of impairment and his medical treatment records, inconsistencies
between the medical opinion evidence and Kallenbach’s testimony, and
Kallenbach’s failure to seek and adhere to prescribed treatment. See Bray v.
Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Thomas v.
Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); Molina, 674 F.3d at 1113.
Kallenbach’s contention that the ALJ failed to associate the objective
medical evidence with specific testimony the ALJ discounted lacks merit. The ALJ
identified specific examples of medical evidence that did not support Kallenbach’s
allegations, such as treatment notes indicating Kallenbach’s nerve compression had
improved to the point where he no longer required surgery. Kallenbach’s assertion
that the medical sources did not consider the impact of his lumbar impairment
when opining about the work Kallenbach would be able to perform, but rather only
considered limitations arising from his other impairments related to his worker’s
compensation claim, is not borne out by the record. For instance, when opining
that Kallenbach had environmental limitations concerning the work he could
perform, consulting physician Dr. Platter stated Kallenbach would need to avoid

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concentrated exposure to vibrations and hazards due to “recurrence of lumbar
disc.” Kallenbach’s remaining arguments advocate for an alternative to the ALJ’s
rational interpretation of the record, and so Kallenbach has not identified a basis
for reversal. See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Lastly, the ALJ provided germane reasons for discounting the lay witness
testimony from Kallenbach’s girlfriend, Heidi Frost, including discrepancies
between her statements and the evidence from Kallenbach’s treating and
examining sources. See Molina, 674 F.3d at 1114. Even if the ALJ erred in citing
the conflict between Ms. Frost’s statements and these medical opinions, the error
was harmless. Ms. Frost’s testimony described limitations similar to those that
Kallenbach alleged. Because the ALJ provided clear and convincing reasons for
discounting Kallenbach’s testimony, “it follows that the ALJ also gave germane
reasons for rejecting [Ms. Frost’s] testimony.” See Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 694 (9th Cir. 2009).
AFFIRMED.

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