Misty Zombie v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MISTY ZOMBIE,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 21-35216
D.C. No. 3:20-cv-05273-MLP
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Michelle L. Peterson, Magistrate Judge, Presiding
Submitted June 7, 2022**
Portland, Oregon
Before: EBEL,*** W. FLETCHER, and CLIFTON, Circuit Judges.
FILED
JUN 13 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 David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

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Claimant Misty La Verne Collier Zombie (“Zombie”) appeals from the
district court’s ruling affirming the Commissioner of Social Security’s denial of
her application for disability benefits. Zombie contends that the Administrative
Law Judge (“ALJ”) improperly discounted both (1) her subjective testimony about
the severity of her symptoms, and (2) the opinion of an examining physician, Dr.
Kim Wheeler.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We “review the district
court’s order affirming the ALJ’s denial of social security benefits de novo and
will disturb the denial of benefits only if the decision contains legal error or is not
supported by substantial evidence.” Lambert v. Saul, 980 F.3d 1266, 1270 (9th
Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)).
1. In her application for benefits and in her testimony before the ALJ,
Zombie stated that she could not be left unsupervised for more than fifteen minutes
because of her seizures; that her chronic pain prevented her from standing or sitting
for more than fifteen minutes at a time; that she had no feeling in her hands; and
that her mental health conditions prevent her from going outside.
Substantial evidence supports the ALJ’s finding discounting the statements
in Zombie’s application and in her testimony. Where, as here, an ALJ finds that
the claimant’s underlying impairments “could reasonably be expected to produce
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the pain or symptoms alleged,” “the ALJ can reject the claimant’s testimony about
the severity of her symptoms only by offering specific, clear[,] and convincing
reasons for doing so.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)
(first quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc); and
then quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). The ALJ did
so here. He wrote that Zombie’s testimony about her physical and mental
limitations was not consistent with the medical record.
Treatment notes by Zombie’s treating physician, Dr. David Woolever, show
that Zombie reported that her medications drastically reduced her chronic pain,
stabilized her epilepsy, and managed her mental health conditions. Further, an
“ALJ may discredit a claimant’s testimony when the claimant reports participation
in everyday activities indicating capacities that are transferable to a work setting.”
Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012), superseded on other
grounds by 20 C.F.R. § 404.1502(a). Zombie consistently reported that her
physical and mental impairments were sufficiently controlled to permit her to do
activities of daily living such as housework, cooking, shopping, and even rafting
and camping.
2. To support her claim of disability, Zombie relies on the opinion of an
examining psychologist, Dr. Kim Wheeler. Dr. Wheeler examined Zombie and
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concluded that Zombie would have marked difficulty “[p]erforming activities
within a schedule, maintain[ing] regular attendance,” “[c]ommunicat[ting] and
perform[ing] effectively in a work setting,” and more.
For applications filed before March 27, 2017, such as Zombie’s, an ALJ may
reject the contradicted opinion of an examining health care provider only “by
providing specific and legitimate reasons that are supported by substantial
evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). The ALJ gave two
reasons for discounting Dr. Wheeler’s opinion. Although the first reason provided
by the ALJ was not a legitimate reason to discount Dr. Wheeler’s opinion, the
ALJ’s second reason is sufficiently specific and is supported by substantial
evidence. The ALJ found that Zombie’s “presentation to Dr. Wheeler [wa]s
inconsistent with her representations to treating personnel.” Zombie’s reporting of
her mental health symptoms to Dr. Wheeler is not supported by the medical record.
Both before and after she met with Dr. Wheeler, Zombie repeatedly reported that
her seizures were well managed, stated that her anxiety and depression were
stabilized, and denied experiencing hallucinations on at least one occasion. A
treating nurse consistently assessed Zombie’s mental status to be “grossly normal,”
and found that Zombie displayed normal thought processes, thought content,
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speech, and judgment. At one visit, Zombie had reported that her mental health
conditions made it “not difficult at all” to work, do housework, and get along with
other people. At best, this evidence is “susceptible to more than one rational
interpretation,” so under the substantial evidence standard we must uphold the
ALJ’s conclusion. Tommasetti, 533 F.3d at 1038.
AFFIRMED.
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