Delano O. Nielsen, Jr. v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DELANO O. NIELSEN, JR.,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 19-35857
D.C. No. 6:17-cv-01495-JE
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
John Jelderks, Magistrate Judge, Presiding
Submitted September 30, 2021 **
Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges.
Delano Nielsen appeals the district court’s decision affirming the
Commissioner of Social Security’s denial in part of his application for supplemental
security income under Title XVI of the Social Security Act. This court reviews the
* 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
OCT 4 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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district court’s order sustaining the denial of benefits de novo. Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2015). This court may set aside the
administrative law judge (“ALJ”)’s denial of benefits only if it is not supported by
substantial evidence or is based on legal error. Id.
The ALJ provided specific, clear and convincing reasons for discounting
Nielsen’s testimony that he was totally disabled by back and neck pain. First, the
ALJ reasonably concluded that the medical record did not support Nielsen’s claimed
limitations. Despite Nielsen’s claims of significant back pain, the ALJ referenced
an April 28, 2014, back examination by Nielsen’s treating physician, Dr. Michelle
Taube, showing only some decreased muscle strength, sensation, and reflexes. The
ALJ reasonably concluded that the overall medical record did not support the
severity of impairment alleged in Nielsen’s testimony. See Burch v. Barnhardt, 400
F.3d 676, 679 (9th Cir. 2005) (holding that although a claimant may interpret the
medical evidence differently, an ALJ’s reasonable interpretation must be upheld).
Second, the ALJ reasonably found that Nielsen’s treatment was essentially
conservative in nature where he took pain medication but never was prescribed
additional pain control measures such as physical therapy or a pain specialist, and
where Nielsen did not schedule a prescribed back surgery. This served as another
basis for discounting Nielsen’s testimony. See Parra v. Astrue, 481 F.3d 742, 750-
51 (9th Cir. 2007). Third, the ALJ reasonably found that Nielsen’s daily activities

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were inconsistent with his claims that he was unable to perform work activity. The
ALJ reasonably noted record evidence that Nielsen performed self-care, prepared
simple meals, did household chores, went shopping, and exercised by taking daily
walks and riding his bicycle. See Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir.
2012) (holding that when weighing credibility, an ALJ may consider a claimant’s
daily activities).
The ALJ provided specific and legitimate reasons for giving little weight to
the opinion of Nielsen’s treating physician, Dr. Taube, that Nielsen was severely
impaired. First, the ALJ reasonably concluded that the opinion was inconsistent
with the objective medical record evidence. As the ALJ discussed when assessing
Nielsen’s credibility, despite his degenerative disc disease, Nielsen’s range of
motion was only mildly limited, he had only mildly decreased muscle strength, and
he had not received medical treatment that would be expected for a totally disabled
individual. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th
Cir. 2004) (holding that an inconsistency between a physician’s opinion and the
medical evidence is a specific and legitimate reason for rejecting the physician’s
opinion). Second, the ALJ reasonably found that Dr. Taube’s opinion was
inconsistent with Nielsen’s reported activities. See Tommasetti v. Astrue, 533 F.3d
1035, 1039–40 (9th Cir. 2008) (holding that a specific and legitimate reason for

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rejecting a physician’s opinion may include inconsistency with a claimant’s daily
activities).
The ALJ provided a germane reason for discounting the lay witness testimony
of Nielsen’s niece, who submitted a written Function Report alleging that Nielsen
had difficulty bending, walking, getting out of bed, and getting out of the house. The
ALJ reasonably concluded that the report was inconsistent with the objective
medical evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)
(holding that a conflict with objective medical evidence is a germane reason to
discount lay testimony).
AFFIRMED.

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