Leland Thomas Fore v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LELAND THOMAS FORE,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 20-36118
D.C. No. 3:20-cv-05370-MAT
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted February 8, 2022**
Seattle, Washington
Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.
1. Leland Fore (“Fore”) appeals the district court’s affirmation of the partially
favorable final decision of the Commissioner of the Social Security Administration
(“Commissioner”). Specifically, Fore challenges the Commissioner’s denial of his
* 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
FEB 11 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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application for Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act for the period of August 1, 2013 through November 11, 2018. For the
following reasons, we affirm.
2. The parties are familiar with the facts of the case, so we do not recite them
here. Fore first argues that the ALJ erred in denying his DIB application by relying
in part on evidence that postdated his date last insured (“DLI”). The ALJ gave
weight to a medical report that predated Fore’s DLI, a report that standing alone may
well represent substantial evidence to support the ALJ’s decision. Regardless,
Fore’s primary contention is incorrect. There is no rule prohibiting the ALJ from
considering post-DLI evidence when evaluating a claim involving the pre-DLI
period. In fact, the rule is the opposite—Ninth Circuit caselaw expressly allows for
post-DLI evidence to bear on such claims. See, e.g., Smith v. Bowen, 849 F.2d 1222,
1225 (9th Cir. 1988). Fore presents no arguments why the post-DLI evidence should
not be considered in this case.
3. Fore next argues that the ALJ erred in characterizing the medical evidence
of his treating naturopath and affording it “little weight.” First, the ALJ correctly
identified the naturopath as not being an “acceptable medical source” under the
regulations prevailing at the time Fore filed his complaint on May 10, 2016.1
Accordingly, the ALJ was permitted to discount the form opinions so long as the
1 See 20 C.F.R. § 404.1513(a), (d) (2016).

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ALJ “gives reasons germane . . . for doing so.” Britton v. Colvin, 787 F.3d 1011,
1013 (9th Cir. 2015) (quoting Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012)). While the ALJ did flatly mischaracterize the reports as placing “no
restrictions” on Fore’s ability to sit, stand, or walk, the ALJ nonetheless cited a
legitimate germane reason to discount the form opinions—that “acceptable medical
sources” who reviewed the form opinions found “that there [was] no basis” for the
evaluations “apart from the claimant’s subjective complaints.”
4. Fore next argues that the ALJ erred in discounting his subjective complaints
in light of documented activities in which Fore participated and that were
inconsistent with Fore’s allegations. Fore challenges this finding, arguing that the
ALJ used evidence of Fore’s activities impermissibly to conclude that Fore was not
disabled and could work “8 hours a day, 5 days a week, on an ongoing basis.” Fore’s
assertion is incorrect. The ALJ noted only that Fore’s admitted activities were
“inconsistent with his hearing testimony,” not that those activities conclusively
established that Fore was not disabled. An ALJ is permitted to refer to daily
activities that contradict a claimant’s testimony in discounting such testimony. See,
e.g., Smith v. Kijakazi, 14 F.4th 1108, 1114 (9th Cir. 2021). To be sure, it is unclear
whether an isolated fishing, hunting, or weightlifting session would rise to the level
of inconsistent “daily activities” sufficient to enable an ALJ to discount a claimant’s
testimony. However, the record collectively demonstrates that Fore engaged in the

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three aforementioned activities as a matter of routine.
5. Finally, Fore argues that the ALJ erred in discounting lay testimony in the
record. To discount lay testimony, an ALJ must cite germane reasons for so doing.
See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Concerning
testimony from Fore’s family, the ALJ noted that this testimony was inconsistent
with the medical records in evidence. Concerning testimony from Fore’s friends,
the ALJ noted that their statements were inconsistent with Fore’s acknowledged
activities of fishing and hunting.
6. For the foregoing reasons, the district court’s decision is AFFIRMED.

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