Kenneth Hubbell v. Kilolo Kijakazi

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH HUBBELL,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI,
Defendant-Appellee.
No. 22-35672
D.C. No.
4:21-cv-05060-RMP
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna M. Peterson, District Judge, Presiding
Submitted October 6, 2023**
Seattle, Washington
Before: WARDLAW and M. SMITH, Circuit Judges, and MATSUMOTO,***
District Judge.
Kenneth Hubbell (“Hubbell”) appeals the district court’s order affirming the
Administrative Law Judge’s (“ALJ”) denial of disability insurance benefits and
* 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 Kiyo A. Matsumoto, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED
OCT 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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supplemental security income. “We review a district court’s judgment upholding
the denial of social security benefits de novo,” and “may set aside a denial of
benefits only if it is not supported by substantial evidence or is based on legal
error.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009)
(internal quotation marks omitted). Because the parties are familiar with the facts,
we do not recount them here, except as necessary to provide context to our ruling.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
1. The ALJ did not fail to meet his duty to develop the record. There is no
indication that the record before the ALJ was ambiguous or insufficient. See
Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (“Ambiguous evidence,
or the ALJ’s own finding that the record is inadequate to allow for proper
evaluation of the evidence, triggers the ALJ’s duty to ‘conduct an appropriate
inquiry.’”).
2. Hubbell fails to raise a colorable due process claim. Hubbell had two
hearings before the ALJ and had the opportunity to submit evidence, including his
own testimony. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The
fundamental requirement of due process is the opportunity to be heard ‘at a
meaningful time and in a meaningful manner.’”). Hubbell does not articulate how,
if at all, the ALJ’s alleged failure to call a vocational expert at the 2021 hearing or
the ALJ’s reliance on the 2018 hearing testimony disadvantaged his claim. See

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Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) (holding that an error must
be material for a claimant to state a colorable constitutional claim).
3. The ALJ provided specific and legitimate reasons to discount the opinions of
Dr. Roman, Dr. Marks, Dr. Eisenhauer, Dr. Khaleeq, Dr. Morgan, Dr. Petaja, and
Eric Thoma, LMHC, as, inter alia, (1) lacking support, or contradicting, the
objective medical record, (2) premised on inaccurate information provided by
Hubbell, (3) premised on unreliable medical opinions, (4) internally inconsistent,
(5) outside the individual’s area of expertise, and/or (6) not meaningfully
explained. See Ford v. Saul, 950 F.3d 1141, 1154–56 (9th Cir. 2020) (observing
that an ALJ may reject opinions that are “brief, conclusory, and inadequately
supported by clinical findings,” “inconsistent with [the claimant’s] activity level,”
“lack[ing] explanation,” or “contradicted by the opinions of [other doctors]”). For
substantially the same reasons given by the district court, we find no error as to the
ALJ’s evaluation of these opinions.
4. Substantial evidence supports the ALJ’s finding that Hubbell’s impairments
were not per se disabling at step three of the sequential process. Listed
impairments are set at a high level of severity because “the listings were designed
to operate as a presumption of disability that makes further inquiry unnecessary.”
Sullivan v. Zebley, 493 U.S. 521, 532 (1990), superseded by statute on other
grounds as stated in Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013). The

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ALJ offered more than mere “boilerplate” rejection at step three, Lewis v. Apfel,
236 F.3d 503, 512 (9th Cir. 2001), citing improvement in Hubbell’s plexopathy,
physical exams that showed no motor or neurological deficits, and imaging that
showed stable findings. Although the ALJ did not discuss Listing 12.15, his
findings on the criteria of Listings 12.04 and 12.06 apply to Listing 12.15. See
Gonzales v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (“It is unnecessary to
require the [Commissioner], as a matter of law, to state why a claimant failed to
satisfy every different section of the listing of impairments.”).
5. The ALJ offered clear and convincing reasons to discount Hubbell’s
symptom testimony as inconsistent with the medical record and his daily activities,
noting, for example, exam findings of “5/5 grip strength, intact sensation, good
range of motion, etc.” and that Hubbell had been dirt biking in 2020. See
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008)
(finding that “[c]ontradiction with the medical record is a sufficient basis for
rejecting the claimant’s subjective testimony”).
6. Having found no error with the ALJ’s determinations above, we find no
step-five error. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir.
2008) (rejecting step-five argument where claimant “simply restate[d] her
argument that the ALJ’s RFC finding did not account for all her limitations”).
7. Hubbell’s remaining arguments are waived because he failed to raise them

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before the district court. See Smartt v. Kijakazi, 53 F.4th 489, 500–01 (9th Cir.
2022) (“We need not address [the claimant’s] remaining arguments because she
waived them by not raising them before the district court.”).
AFFIRMED.

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