Kortney McGee v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KORTNEY MCGEE,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 20-36074
D.C. No. 1:19-cv-00043-TJC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Timothy J. Cavan, Magistrate Judge, Presiding
Submitted December 8, 2021**
Seattle, Washington
Before: McKEOWN and BADE, Circuit Judges, and FITZWATER,*** District
Judge.
Kortney McGee appeals the district court’s order affirming the
* 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 Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
FILED
DEC 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Administrative Law Judge’s (ALJ) decision denying McGee’s application for
Supplemental Security Income (SSI) under Title XVI of the Social Security Act.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s order affirming the ALJ’s denial of
Social Security benefits, and we must independently determine whether the ALJ’s
decision is free from legal error and supported by substantial evidence. Brewes v.
Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “If the
evidence can support either affirming or reversing the ALJ’s conclusion, we may
not substitute our judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466
F.3d 880, 882 (9th Cir. 2006).
1. McGee first argues that the ALJ failed to comply with our previous
instructions and the district court’s previous instructions on remand. We
previously instructed the ALJ to “make additional step-five findings, incorporating
McGee’s non-exertional limitations,” such as whether McGee would require ready
access to a restroom for her symptoms of urinary incontinence. McGee v. Colvin,
556 F. App’x 616, 618 (9th Cir. 2014). In a subsequent appeal, the district court
instructed the ALJ to “more clearly delineate [McGee’s] requirements with respect
to restroom access, especially including whether she requires ready access to a
restroom, which the [district court] interpret[ed] as immediate access without
regard to any routine, scheduled breaks.” McGee v. Berryhill, No. CV 16-39-

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BLG-TJC, 2018 WL 1378750, at *16 (D. Mont. Mar. 19, 2018). The ALJ
incorporated McGee’s non-exertional limitations concerning ready access to a
restroom into her residual functional capacity (RFC) by finding that McGee
“would need ready access to a restroom and a restroom break of 3–4 minutes every
hour and a half.” This limitation is supported by McGee’s testimony concerning
her estimation of how frequently she would need a restroom break. The ALJ
delineated McGee’s restroom access requirements and clarified that the scheduled
restroom breaks were in addition to normal and mid-shift breaks. The ALJ thus
complied with our and the district court’s remand instructions.
2. McGee also argues that the ALJ did not offer specific, clear, and
convincing reasons for discounting her testimony that she required a restroom
break every 60–90 minutes and instead only providing for a restroom break every
90 minutes. Although an ALJ is “responsible for determining the credibility of a
claimant, an ALJ cannot reject a claimant’s testimony without giving clear and
convincing reasons. In addition, the ALJ must specifically identify the testimony
she or he finds not to be credible and must explain what evidence undermines the
testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (citation
omitted). The ALJ did not improperly discount McGee’s testimony. The ALJ
acknowledged McGee’s testimony on several occasions and accounted for this
testimony in the RFC, which imposed a limitation of a restroom break every 90

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minutes and was within the range of McGee’s estimation. “RFC is not the least an
individual can do despite his or her limitations or restrictions, but the most.” SSR
96-8p, 61 Fed. Reg. 34474, 34475 (July 2, 1996); see also 20 C.F.R. §
416.945(a)(1) (“Your [RFC] is the most you can still do despite your limitations.”).
Accordingly, the ALJ accepted McGee’s testimony that she required a restroom
break every 60-90 minutes and determined that the most she could do despite her
limitations was 90 minutes, which was “within the range of what she estimated for
bathroom needs.” The ALJ therefore did not err in imposing a restriction of a
restroom break every 90 minutes.
3. Last, McGee argues that, because the ALJ failed to incorporate her
non-exertional functional limitations, the ALJ proposed erroneous hypothetical
questions to the vocational expert (VE). As explained above, the ALJ did not fail
to incorporate McGee’s non-exertional functional limitations. McGee also argues
that, although the ALJ proposed a hypothetical to the VE about permitting 30-
minute breaks to change clothing, the ALJ did not include this limitation in the
RFC. An ALJ need only include limitations that are supported by the record. See
Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). McGee only cites her
testimony that she could require 30-minute breaks to change clothes and clean up
after accidents, but she does not dispute or otherwise contest the ALJ’s findings
that this testimony was generally unsupported by the record. The ALJ thus did not

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err in not including this limitation in the RFC.
AFFIRMED.

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