Tami Borowick v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMI BOROWICK,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 21-36022
D.C. No. 2:21-cv-00328-BAT
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Brian A. Tsuchida, Magistrate Judge, Presiding
Argued and Submitted December 7, 2022
San Francisco, California
Before: BRESS and VANDYKE, Circuit Judges, and RESTANI,** Judge.
Tami Borowick appeals the district court’s order affirming an
Administrative Law Judge’s (“ALJ”) denial of Social Security disability benefits.
We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED
DEC 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
decision de novo and uphold an ALJ’s disability determination “‘unless it is either
not supported by substantial evidence or is based upon legal error.’” Woods v.
Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022) (quoting Luther v. Berryhill, 891 F.3d
872, 875 (9th Cir. 2018)). Substantial evidence “means—and means only—such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted).
We affirm.
First, substantial evidence supports the ALJ’s discounting of Borowick’s
subjective symptom testimony. When there is no evidence of malingering, an ALJ
may “reject the claimant’s testimony about the severity of her symptoms only by
offering specific, clear and convincing reasons for doing so.” Smith v. Kijakazi, 14
F.4th 1108, 1112 (9th Cir. 2021) (quoting Garrison v. Colvin, 759 F.3d 995, 1014–
15 (9th Cir. 2014)). In considering the severity of Borowick’s symptoms, the ALJ
found that Borowick’s testimony concerning the intensity, persistence, and limiting
effects of her symptoms to be “not entirely consistent with the medical evidence.”
The ALJ found Borowick’s fatigue had improved with CPAP therapy and
rheumatological treatment, and that her lung x-rays were unremarkable. The ALJ
determined that Borowick’s exercise routine to be inconsistent with her assertion
of minimal stamina and found her severe cognitive symptoms to be inconsistent
with her results on cognitive tests.

-- 2 of 3 --

3
Second, the ALJ did not err in discounting Borowick’s treating physicians’
opinions. The ALJ applied 20 C.F.R. § 404.1520c(a), which clearly states that no
medical opinions will be given “any specific evidentiary weight” at the outset of
evaluating a medical opinion. Rather, an ALJ must determine the persuasiveness
of an opinion based on the most important factors of supportability and consistency
and “explain how [he or she] considered the supportability and consistency factors
for a medical source’s medical opinions.” 20 C.F.R. § 404.1520c(b)(2). The ALJ
found Borowick’s treating physician’s opinions to be unpersuasive. The ALJ
determined that most of the substance of the medical opinions was based on
Borowick’s self-reporting of symptoms, which he previously found to be not
entirely consistent with the record.
We must uphold the ALJ’s finding that Borowick’s symptoms were only
partially consistent with the record and that Borowick’s doctors’ opinions were
unpersuasive. Even if the evidence could be construed differently, the ALJ
provided an interpretation of the evidence that a reasonable mind could accept,
satisfying substantial evidence review. See Biestek, 139 S. Ct. at 1154.
AFFIRMED.

-- 3 of 3 --