Arthur Andy v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTHUR ANDY,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 22-35934
D.C. No. 1:20-cv-03203-JAG
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
James A. Goeke, Magistrate Judge, Presiding
Submitted October 3, 2023**
Seattle, Washington
Before: WARDLAW and M. SMITH, Circuit Judges, and HINKLE,*** District
Judge.
Arthur Andy (“Andy”) appeals the district court’s decision upholding an
* 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 Robert L. Hinkle, United States District Judge for the
Northern District of Florida, sitting by designation.
FILED
OCT 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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administrative law judge’s (“ALJ”) denial of his application for Supplemental
Security Income. We “will disturb the denial of benefits only if the decision
contains legal error or is not supported by substantial evidence.” Terry v. Saul, 998
F.3d 1010, 1012 (9th Cir. 2021). We have jurisdiction under 8 U.S.C. § 1291, and
we affirm.
1. The ALJ properly weighed the medical opinions of examining
physician Dr. Drenguis and non-examining physicians Dr. Hurley and Dr. Baylor in
determining that Andy does not have a forward reaching limitation. In 2017, the
agency revised its regulations to eliminate the “three-tiered hierarchy” of medical
opinions based on a doctor’s relationship with the claimant. See Woods v. Kijakazi,
32 F.4th 785, 788–89 (9th Cir. 2022). Under the revised regulations, which apply
to all claims filed on or after March 27, 2017, an ALJ must “not defer or give any
specific evidentiary weight, including controlling weight, to any medical opinion,”
but must instead weigh various factors to evaluate the persuasiveness of each
medical opinion. See 20 C.F.R. § 416.920c(a). “The most important factors that the
agency considers when evaluating the persuasiveness of medical opinions are
supportability and consistency.” Woods, 32 F.4th at 791 (internal quotation marks
omitted).
Andy filed his application on March 26, 2018. Therefore, the ALJ properly
applied the new regulations in analyzing Andy’s claim. After reviewing Andy’s

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medical records and the doctors’ opinions, the ALJ determined that Dr. Drenguis’s
opinion lacked supportability because his physical examination “findings indicated
some limitation in shoulder movement, but not to the extent that [Andy] would have
difficulty reaching forward.” For example, although he concluded that Andy was
limited in both overhead and forward reaching, Dr. Drenguis’s exam showed that
Andy could extend his arm outward and encountered difficulty only when he
attempted to raise his arm farther above his head. As for the consistency of Dr.
Drenguis’s opinion, the ALJ found that “the record otherwise does not contain
consistent evidence” regarding Andy’s shoulder pain, because Andy’s medical
records showed only “two instances of complaints about his shoulder” and “only
moderate limitation and generally normal use of his upper extremities.”
In contrast, the ALJ found that Dr. Hurley’s and Dr. Baylor’s conclusions that
Andy did not have a forward reaching limitation were supported by “findings by the
consultative examiner and findings in the treatment notes,” and that their opinions
were “consistent with the later treatment notes” which “showed generally normal
strength and movement of [Andy’s] extremities.” Furthermore, because we review
the ALJ’s decision for substantial evidence, even if the medical opinion “evidence
is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that
must be upheld.” Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017) (internal
citation and quotation marks omitted). Therefore, because the ALJ considered the

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most important factors of supportability and consistency, and because “considering
the record as a whole, a reasonable person” could find that the evidence supported
the ALJ’s conclusion, the ALJ’s determination that Andy did not have a forward
reaching limitation was supported by substantial evidence. Terry, 998 F.3d at 1012.
Moreover, neither the ALJ nor the district court committed legal error by
concluding that Andy does not have a forward reaching limitation. The ALJ’s
reasoning was not “impermissibly vague” because, although the ALJ’s analysis of
the supportability and consistency of Dr. Drenguis’s opinion is summarized in one
sentence, at other points throughout his decision the ALJ clearly articulated why
Andy’s complaints about his right shoulder were not supported by the record. See
Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th Cir. 2022) (finding substantial
evidence supported the ALJ’s decision where “[l]ooking to all the pages of the
ALJ’s decision . . . the ALJ had, in fact, explained” the basis of its ruling). Nor did
the ALJ improperly rely on his own interpretation of the medical opinion evidence,
because the ALJ adopted the findings of Dr. Hurley and Dr. Baylor in determining
Andy’s residual functional capacity. Lastly, although “[w]e consider the district
court’s decision, [] the statutory scheme mandates a full review of the facts by our
court and an independent determination as to whether the [ALJ’s] findings are
supported by substantial evidence.” Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.
1985). Therefore, even if we agreed with Andy’s argument that the district court

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engaged in a “post hoc rationalization” of the ALJ’s decision, this would not
warrant remand because the ALJ’s finding that Andy does not have a forward
reaching limitation is supported by substantial evidence.
2. Substantial evidence supports the ALJ’s conclusion at step five that
there are a significant number of jobs in the national economy that Andy can
perform. “[W]ork exists in the national economy when it exists in significant
numbers either in the region where [the claimant] live[s] or in several other regions
of the country.” 20 C.F.R. § 416.966(a). In Gutierrez v. Comm’r of Soc. Sec., 740
F.3d 519, 529 (9th Cir. 2014), we held “that 25,000 jobs . . . signifies a significant
number of jobs in several regions of the country” for purposes of step five.
Here, the vocational expert testified that there are 28,100 jobs in the national
economy that an individual of Andy’s age, education, work experience, and residual
functional capacity can perform, if that individual does not have a forward reaching
limitation. Because substantial evidence supports the ALJ’s determination that
Andy does not have a forward reaching limitation, and because the existence of
28,100 jobs nationwide constitutes “a significant number of jobs in several regions
of the country” under Gutierrez, substantial evidence supports the ALJ’s step five
conclusion that Andy is not disabled within the meaning of the Social Security Act.
See id.
AFFIRMED.

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