Randall Dean Wendt v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDALL DEAN WENDT,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 23-35069
D.C. No. 3:20-cv-02053-MC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted December 7, 2023**
Portland, Oregon
Before: NGUYEN and MILLER, Circuit Judges, and MONTALVO,*** District
Judge.
Randall Dean Wendt appeals from 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 Frank Montalvo, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
DEC 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
Commissioner of Social Security’s denial of his application for disability benefits
under the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
We review the district court’s decision de novo and may overturn the
decision of the administrative law judge (ALJ) only if it is not supported by
substantial evidence or was based on legal error. See Luther v. Berryhill, 891 F.3d
872, 875 (9th Cir. 2018). “Substantial evidence is ‘more than a mere scintilla but
less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Sandgathe v. Chater, 108 F.3d 978,
980 (9th Cir. 1997) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). We will affirm even if the evidence is “susceptible to more than one
rational interpretation.” Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016)
(quoting Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), superseded on
other grounds by 20 C.F.R. §§ 404.1502(a), 416.902(a)).
The ALJ followed the Social Security Administration’s five-step sequential
evaluation to determine if Wendt is disabled. See 20 C.F.R. §§ 404.1520, 416.920.
At step four, the ALJ found that Wendt has the residual functional capacity (RFC)
to perform some of his past work and is thus not disabled.
1. Wendt argues the ALJ did not properly consider all of his alleged
impairments when determining his RFC—specifically the limits on his

-- 2 of 5 --

3
concentration caused by his back pain and the side effects of his pain medications.
The ALJ found that Wendt’s only evidence of such limits were self-reported
symptoms, that Wendt had not sought treatment for these symptoms, and that there
was no medical evidence to support their existence. Those findings are supported
by the record, and the ALJ appropriately relied on them. See Burch v. Barnhart,
400 F.3d 676, 681 (9th Cir. 2005) (explaining that failing to seek treatment is
“powerful evidence regarding the extent” of symptoms). Despite testifying that he
lacked the concentration to be productive at work, Wendt had earlier stated that his
capacity to pay attention was “not a disability” and that his ability to follow written
and spoken instructions was “fine.” Although he complained of side effects of
other medications, he made no complaints of side effects from gabapentin. Wendt
performed well in a mental-status examination and state-agency psychological
consultants found that Wendt was not suffering from any mental limitations.
The ALJ further found that one consultative exam discovered evidence of
malingering, that Wendt lost his job for reasons unrelated to his alleged disability,
and that he continued seek employment as a delivery driver after the alleged onset
of his disability. Substantial evidence supports those findings, and the ALJ was
permitted to consider them in weighing Wendt’s symptom testimony. See Thomas
v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (approving of ALJ’s reliance on
claimant’s lack of consistent effort during an evaluation); Bruton v. Massanari,

-- 3 of 5 --

4
268 F.3d 824, 828 (9th Cir. 2001) (approving of ALJ’s reliance on claimant’s loss
of work for reasons unrelated to the alleged disability); Macri v. Chater, 93 F.3d
540, 544 (9th Cir. 1996) (approving of ALJ’s reliance on claimant’s pursuit of
comparable work during the relevant time).
Wendt argues that the ALJ was obliged to provide “specific, clear, and
convincing reasons” for discrediting his symptom testimony. Garrison v. Colvin,
759 F.3d 995, 1010 (9th Cir. 2014). But that is what the ALJ did; although the
reasons were not all articulated in one place in the ALJ’s opinion, we “[l]ook[] to
all the pages of the ALJ’s decision.” Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th
Cir. 2022). Upon review of the ALJ’s whole decision and the entire record, we
conclude that substantial evidence supports the ALJ’s RFC determination.
2. Wendt also challenges the ALJ’s finding that he could return to past
relevant work. At step four, the ALJ must determine whether a claimant can return
to past work notwithstanding his limitations. 20 C.F.R. § 404.1520(a)(4)(iv).
Wendt insists that changes in technology since the Dictionary of Occupational
Titles was last updated mean that he cannot do his past work in the electronics
industry because he is no longer sufficiently skilled. The vocational expert’s
testimony supported the ALJ’s determination to the contrary. The expert
acknowledged that the electronics industry has changed and that Wendt might not
be able to perform all relevant jobs given his limitations. The expert also

-- 4 of 5 --

5
explained, however, that Wendt could still be a “circuit layout technician.”
Although the expert described that conclusion as a “very close call,” the testimony
is nevertheless substantial evidence sufficient to support the ALJ’s conclusions.
AFFIRMED.

-- 5 of 5 --