Katherine M. Metcalf v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHERINE M. METCALF,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 22-35201
D.C. No. 3:20-cv-06023-MAT
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted December 9, 2022**
San Francisco, California
Before: NGUYEN and KOH, Circuit Judges, and BOUGH,*** District Judge.
Katherine M. Metcalf (“Metcalf”) appeals from the district court’s judgment
affirming the Commissioner of Social Security’s denial of her application for
* 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 Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
FILED
DEC 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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supplemental security income under Title XVI of the Social Security Act. We
have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). The parties are
familiar with the facts of the case, so we do not recite them here. We review de
novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.
Substantial evidence supports the ALJ’s determination that the marked
limitations assessed by Dr. Terilee Wingate were inconsistent with the medical
record and with Metcalf’s activities. See Woods v. Kijakazi, 32 F.4th 785, 787,
789 (9th Cir. 2022) (under the revised regulations that apply to claims filed on or
after March 27, 2017, the ALJ’s evaluation of a medical opinion is reviewed for
substantial evidence).
Substantial evidence also supports the ALJ’s finding that Dr. Daria
Sciarrone’s opinion was internally inconsistent, inconsistent with the medical
record, and lacking support from objective findings. See id. at 792 (holding that an
ALJ can “reject an examining or treating doctor’s opinion as unsupported or
inconsistent” if the ALJ “provide[es] an explanation supported by substantial
evidence”).
As to Dr. Desmond Tuason and Dr. Debra Baylor’s opinions, substantial
evidence supports the ALJ’s determination that the standing/walking limitation
they assessed was inconsistent with the medical record, which reflected minimal
treatment for Metcalf’s foot condition and no treatment for knee pain. See id.

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To the extent that Metcalf contends the ALJ was required to provide
“legitimate” reasons to discount the medical opinions, this contention is foreclosed
by Woods. See id. (concluding that the “specific and legitimate” standard is
“incompatible with the revised regulations”). We do not consider Metcalf’s
contention, raised for the first time in her reply brief, that the revised regulations
are partially invalid. See Coos Cnty. Bd. of Cnty. Comm’rs v. Kempthorne, 531
F.3d 792, 812 n.16 (9th Cir. 2008) (“The general rule is that appellants cannot raise
a new issue for the first time in their reply briefs.” (citation and internal quotation
marks omitted)).
Substantial evidence supports the ALJ’s conclusion—articulated with
specific, clear, and convincing reasons—that Metcalf’s testimony was inconsistent
with the medical record reflecting minimal treatment and improvement with
treatment. See Ahearn v. Saul, 988 F.3d 1111, 1116–17 (9th Cir. 2021) (ALJ
properly discounted claimant’s subjective allegations as inconsistent with the
medical record); Tommasetti v. Astrue, 533 F.3d 1035, 1039–40 (9th Cir. 2008)
(ALJ may discount a claimant’s allegations based on evidence of relief with
conservative treatment); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)
(ALJ may consider a lack of corroborating medical evidence as one factor in the
credibility determination). The ALJ also provided clear and convincing reasons to
discount Metcalf’s symptom testimony as inconsistent with her work history and

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level of activity. See Ahearn, 988 F.3d at 1116–17 (ALJ properly discounted
claimant’s subjective allegations as inconsistent with work history and daily
activities).
Any error in the ALJ’s consideration of the lay witness evidence was
harmless. See Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (“[A]n ALJ’s
failure to comment upon lay witness testimony is harmless where the same
evidence that the ALJ referred to in discrediting [the claimant’s] claims also
discredits [the lay witness’s] claims.” (citation and internal quotation marks
omitted)), superseded on other grounds by 20 C.F.R. § 404.1502(a).
Substantial evidence supports the ALJ’s residual functional capacity
(“RFC”) assessment, and Metcalf shows no error in the ALJ’s analysis. See
Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (affirming the ALJ’s
RFC determination where the ALJ “applied the proper legal standard and his
decision is supported by substantial evidence”). Metcalf’s contentions concerning
the ALJ’s step five finding are based on her previously addressed arguments and
thus lack support. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th
Cir. 2008) (rejecting claimant’s step five challenge where she “simply restate[d]
her argument that the ALJ’s RFC finding did not account for all her limitations”).
AFFIRMED.

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