Jessica L. Seaich v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSICA L. SEAICH,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 17-35803
D.C. No. 9:16-cv-00127-JCL
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge, Presiding
Resubmitted December 6, 2022**
Seattle, Washington
Before: IKUTA and CHRISTEN, Circuit Judges, and FREUDENTHAL,***
District Judge.
FILED
DEC 6 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 Nancy D. Freudenthal, United States District Judge for
the District of Wyoming, sitting by designation.

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Jessica Seaich appeals from the district court’s order affirming the
administrative law judge’s (ALJ’s) denial of her application for disability-
insurance benefits for the period from June 13, 2012 to September 30, 2014. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. We review de novo
the district court’s order, and we will disturb the ALJ’s decision only if it “contains
legal error or is not supported by substantial evidence.” Ford v. Saul, 950 F.3d
1141, 1154 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038
(9th Cir. 2008)).
1. Seaich suggests the ALJ improperly based his decision on an April 2012
medical record—pre-dating the disability period by two months—that indicated
Seaich’s bladder and bowel incontinence had “resolved’ at that point in time. We
are not persuaded. An ALJ considers “all evidence in [the] case record” when
determining whether an applicant is disabled, which may include evidence from
outside the period of disability. See 20 C.F.R. § 404.1520(a)(3). Though evidence
outside the disability period is often “of limited relevance,” Carmickle v. Comm’r,
Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008), it can provide additional
context when, as here, a claimant alleges they suffer from conditions that are
chronic or progressive in nature. The ALJ did not base his decision solely on the
April 2012 medical record; rather, he considered that record to assess the trajectory
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of Seaich’s incontinence problems in conjunction with other records from the
applicable period that noted new complaints of incontinence and records post-
dating the period that showed Seaich may have been diagnosed with Crohn’s
disease by late 2014 or early 2015. The ALJ therefore did not err when he
considered the April 2012 medical record.
2. Seaich further contends the ALJ failed to provide “specific, clear and
convincing reasons” for finding that her testimony regarding the intensity,
persistence, and limiting effects of her symptoms was “not entirely credible.”
When an ALJ determines that a claimant “has presented objective medical
evidence of an underlying impairment that could reasonably be expected to
produce the pain or other symptoms alleged,” and “there is no evidence of
malingering, ‘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.’”
Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir. 2021) (quoting Smolen v. Chater, 80
F.3d 1273, 1281 (9th Cir. 1996)). We conclude the ALJ’s adverse credibility
determination is adequately supported by his discussion of numerous conflicts
between Seaich’s testimony and the record evidence, as well as Seaich’s failure to
follow treatment advice.
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Seaich claimed in her Function Report that she could only sit or stand for a
few minutes, but the ALJ noted the record contained: a July 2013 treatment note
from Dr. Mack, a neurosurgeon, who observed that Seaich had ambulated normally
and “[did] not appear to be anything other than healthy” during his examination; a
March 2013 treatment note from Seaich’s rheumatologist stating that Seaich
reported walking and swimming for exercise; and a September 2014 treatment note
from Seaich’s rheumatologist stating that Seaich reported walking an hour with no
muscle weakness or pain after her car broke down. The ALJ also noted that Seaich
claimed to experience severe bladder and bowel incontinence throughout the
disability period, but medical records showed that Seaich denied bowel
incontinence in November 2012 and October 2013 and that a urodynamic study in
January 2013 demonstrated that she had “overwhelmingly normal . . . bladder
capacity” and “a good healthy bladder.” In addition to these contradictions, the
ALJ properly considered Seaich’s unexplained failure to comply with treatment
advice. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). The ALJ noted
evidence that Seaich repeatedly ignored her providers’ advice to decrease her habit
of drinking significant amounts of caffeinated beverages per day and delayed going
to physical therapy for several months. Substantial evidence therefore supports the
ALJ’s credibility determination. See Carmickle, 533 F.3d at 1162.
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3. Last, Seaich argues the ALJ erred by failing to give “appropriate weight”
to the opinions of Dr. Nelsen,1 her treating rheumatologist. For claims filed before
March 27, 2017, to discount a treating physician’s opinion, an ALJ must provide
“specific, legitimate reasons for doing so that are based on substantial evidence in
the record.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.
1999) (quoting Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995)); see also
Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (holding that the 2017
revisions to the Social Security regulations eliminated this requirement).
The ALJ gave only “some weight” to the opinions expressed in Dr. Nelsen’s
August 17, 2012 Rheumatoid Arthritis Residual Functional Capacity
Questionnaire. In the questionnaire, Dr. Nelsen opined that Seaich suffered from
rheumatoid arthritis and diabetes and as a result could not stand or walk more than
four hours in an eight-hour work day, could only lift 10 pounds occasionally, and
could not perform fine manipulations with her fingers. The ALJ explained that he
discounted some portions of the assessment regarding “postural activities as well
as fine manipulation” because “Dr. Nels[e]n’s assessment was provided in August
2012, just after the relevant period begins, and subsequent evidence supports
1 The ALJ’s decision and the parties’ briefs refer to Seaich’s treating
rheumatologist as both Dr. Nelson and Dr. Nelsen. We use the latter based on the
spelling in Seaich’s medical records.
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greater functioning on the part of the claimant associated with more appropriate
treatment.” Substantial evidence supports this reason to partially discount Dr.
Nelsen’s early assessment. Subsequent records from Dr. Nelsen and other
providers show improvement in Seaich’s joint pain and range of motion and reflect
that Seaich was capable of activities inconsistent with her reported symptoms.
Seaich appears to argue the ALJ improperly disregarded some of Dr. Nelsen’s later
records reflecting more severe limitations, but as the ALJ identified, many of the
limitations noted in those records were premised on Seaich’s self-reports.
The ALJ also gave only “some weight” to a February 2015 record in which
Dr. Nelsen noted her understanding that another physician diagnosed Seaich with
Crohn’s disease in August 2014 and a February 2015 letter in which Dr. Nelsen
opined that Seaich was unable to maintain gainful full-time employment due to her
joint pain and fatigue. The ALJ explained that several of Dr. Nelsen’s February
2015 notes were based on Seaich’s reports post-dating the disability period and
that Dr. Nelsen’s opinion regarding Seaich’s grip strength and dexterity was “not
consistently supported by any objective examination findings shown in the record.”
The ALJ also correctly noted that there was no record evidence of the August 2014
Crohn’s diagnosis, but nevertheless “duly recognize[d] the condition of [Crohn’s
disease] for the purposes of [his] decision.” We therefore conclude that to the
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extent the ALJ discounted Dr. Nelsen’s opinions, he provided the necessary
“specific, legitimate reasons” for doing so.
4. We also reject Seaich’s argument that the ALJ’s hypothetical question to
the vocational consultant was inadequate. The question incorporated all of
Seaich’s medically determinable impairments as determined by the ALJ, and that
determination was supported by substantial evidence. See Burch v. Barnhart, 400
F.3d 676, 684 (9th Cir. 2005).
AFFIRMED.
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