Teresita Tijerina, on behalf of A.V. a minor child v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERESITA TIJERINA, on behalf of A.V.
a minor child,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 21-35559
D.C. No. 4:20-cv-05099-JTR
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
John Tyler Rodgers, Magistrate Judge, Presiding
Submitted June 6, 2022**
Seattle, Washington
Before: GILMAN,*** IKUTA, and MILLER, Circuit Judges.
FILED
JUN 8 2022
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).
*** The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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Teresita Tijerina appeals the district court’s decision affirming the Social
Security Commissioner’s denial of an application for supplemental social security
income submitted on behalf of her minor child (A.V.) under Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381–1383f. We have jurisdiction under 28
U.S.C. § 1291.
The Administrative Law Judge (ALJ) did not err at step three of the
sequential evaluation for childhood disability applications by failing to consider or
mention Listing 106.07, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 106.07. In
finding that A.V. did not have an impairment or combination of impairments that
met or was equivalent to any childhood listing, it was sufficient for the ALJ to rely
on determinations by three doctors (two of whom expressly referenced Listing
106.07) that A.V.’s impairments did not meet or equal any listing. See Tackett v.
Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). Moreover, Tijerina failed to present
evidence that A.V.’s impairments met Listing 106.07 or were medically equivalent
to that listing. Therefore, the ALJ’s conclusion was supported by substantial
evidence, and the ALJ was not required to mention Listing 106.07 specifically.
Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (citing Lewis v. Apfel, 236
F.3d 503, 514 (9th Cir. 2001)). The ALJ did not fail in her duty to develop the
record because this duty “is triggered only when there is ambiguous evidence or
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when the record is inadequate to allow for proper evaluation of the evidence.”
Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (citation omitted). Here, the
record was adequate for the ALJ to evaluate whether A.V.’s impairments met or
equaled a childhood listing, and Tijerina fails to identify what portions of the
record were ambiguous.
The ALJ did not err in discounting Tijerina’s testimony regarding A.V.’s
symptoms and the impact of her impairments on her school attendance. The ALJ
was required to provide only germane reasons for discounting such testimony, not
clear and convincing evidence, see Merrill ex rel. Merrill v. Apfel, 224 F.3d 1083,
1086 (9th Cir. 2000); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005),
and the ALJ provided such reasons. In rejecting Tijerina’s claims regarding the
frequency and severity of A.V.’s urinary tract infections (UTIs), the ALJ relied on
objective medical evidence, including treatment notes demonstrating that A.V. had
no UTIs in July 2016, February 2018, October 2018, and February 2019. In
discounting Tijerina’s claim about the impact of A.V.’s impairments on her school
attendance, the ALJ relied on Dr. Seligman’s testimony that A.V.’s impairments
would not cause the level of absenteeism Tijerina asserted, among other evidence.
Moreover, the record supports the ALJ’s finding that A.V.’s school records
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contradicted Tijerina’s claim that A.V.’s UTIs caused her to miss school for weeks
at a time.
The ALJ’s finding of a marked limitation, rather than an extreme limitation,
in the functional domain of health and physical well-being was supported by
substantial evidence, given that three medical experts opined that A.V. had only a
marked limitation in this domain. Further, the ALJ provided germane reasons for
discounting Tijerina’s contentions about A.V.’s limitations in this domain. See
Lewis, 236 F.3d at 511.
The ALJ’s determination that A.V.’s limitations were not marked in the
domain of acquiring and using information is supported by substantial evidence,
including Dr. Seligman’s testimony, Tijerina’s statements that A.V. was doing well
in school and had normal speech and language development, and medical records
demonstrating that A.V. had normal hearing, speech, and language scores on her
examinations. The ALJ’s determination that A.V.’s limitations were not marked in
the domain of attending and completing tasks was also supported by substantial
evidence, including the opinion of Dr. Seligman, treatment notes demonstrating
that A.V. had no significant cognitive difficulties, Tijerina’s testimony that A.V.
had normal cognition, and the absence of evidence that A.V. was easily distracted
or had problems completing tasks. We reject Tijerina’s argument that the ALJ
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misunderstood the impact of A.V.’s central auditory processing disorder (CAPD)
in determining A.V.’s limitations. Although A.V.’s score in her CAPD testing was
in the first percentile, the Commissioner “will not rely on any test score alone” in
assessing functionality, and the regulations specify that “[n]o single piece of
information taken in isolation can establish whether [the claimant has] a ‘marked’
or an ‘extreme’ limitation in a domain.” 20 C.F.R. § 416.926a(e)(4)(i).
AFFIRMED.
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