Rick E. Johnson v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICK E. JOHNSON,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 21-35844
D.C. No. 2:20-cv-00032-JTJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
John T. Johnston, Magistrate Judge, Presiding
Submitted July 6, 2022**
Portland, Oregon
Before: WATFORD, R. NELSON, and LEE, Circuit Judges.
Rick Johnson appeals the district court’s order affirming the Administrative
Law Judge’s denial of Social Security disability benefits and supplemental income.
We have jurisdiction under 28 U.S.C. § 1291, and review de novo 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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUL 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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order. See Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir. 1999). We may set aside
the denial of benefits only if it is not supported by “substantial evidence or [if] it is
based on legal error.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). We
affirm.
1. Johnson’s principal argument is that the ALJ and the district court erred
in using March 22, 2017 (when he protectively filed for benefits) as the filing date
instead of April 6, 2017 (when he formally submitted his application to the agency).
That matters because the agency’s regulations about how to evaluate medical
evidence changes based on those two dates. While the day the agency receives the
application for benefits can serve as the “filing date,” a written statement indicating
an intent to claim benefits (i.e., a protective filing) can also trigger the “filing date.”
See 20 C.F.R § 404.630. And the agency regulations state that the earlier date of the
protective filing will be used. See id.; 20 C.F.R § 404.614(a). Similarly, the Program
Operations Manual System (POMS) states the “filing date” is the earlier of the date
of either a valid application received or the protective filing. POMS GN
00204.007(A)(1); POMS GN 00204.010(A)(1). The ALJ and district court thus
correctly used March 22, 2017, as the filing date.
Though Johnson speculates that the earlier filing date belongs to another
individual, substantial evidence supports the finding that Johnson protectively filed
for benefits on March 22, 2017. Numerous application forms and disability

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determination explanations list March 22, 2017, as the application date. The
documents with the protective filing date also include Johnson’s name, address,
education level, birthdate, and Social Security number. Johnson provides no
explanation why another individual’s application date would appear on an
application with his personal information.
2. The ALJ properly rejected some of Johnson’s subjective complaints
because he provided “specific findings stating clear and convincing reasons for
doing so.” See Batson v. Comm’r of Soc. Sec. Admin, 359 F.3d 1190, 1196 (9th Cir.
2004). Batson has been met. The ALJ noted that Johnson reported to a provider
that he had numbness and weakness in his hands, but on exam, Johnson exhibited
good coordination and no weakness or motor deficits. Similarly, Johnson testified
his examining doctor told him not to lift more than five pounds, but two
postoperative evaluations indicated a temporary limitation of no greater than ten
pounds. The ALJ observed that while Johnson complained of worsening neck pain,
medical support showed rehabilitation was proceeding as expected. Furthermore,
the ALJ properly discounted Johnson’s complaints of uncontrollable blood pressure
because Johnson’s hypertension can be “controlled effectively with medication.”
See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).
3. The ALJ did not err by giving more weight to state agency medical
consultants over treating healthcare providers. Nor did the ALJ err in giving less

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weight to treating healthcare provider Hathaway’s opinions, given that the ALJ
provided reasons that were sufficiently “germane.” See Britton v. Colvin, 787 F.3d
1011, 1013 (9th Cir. 2015) (per curiam). The ALJ noted Hathaway’s findings were
not consistent with medical opinions nor supported by objective medical evidence.
See 20 C.F.R § 404.1527(c)(3)-(4), 416.927(c)(3)-(4).
4. The ALJ did not err by not evaluating the frequency of Johnson’s
treatments from August 2018 to January 2019 in evaluating his residual functional
capacity. Johnson presents no evidence to establish that the frequency of his medical
appointments inhibited his ability to work on a regular and continuing basis.
Johnson’s nine appointments within five months seem unlikely to have inhibited
Johnson’s ability to work, especially considering Johnson provided no evidence
showing that his appointments lasted entire workdays or would continue to persist.
AFFIRMED.

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