NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EVELYN RODRIGUEZ, 

Plaintiff-Appellant, 

 v. 

MARTIN J. O’MALLEY, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 23-15606 

D.C. No. 

4:21-cv-00473-JGZ-BGM 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Jennifer G. Zipps, District Judge, Presiding

Submitted April 3, 2024**

Phoenix, Arizona

Before: HAWKINS, BYBEE, and BADE, Circuit Judges.

Evelyn Rodriguez appeals the district court decision affirming the Social 

Security Commissioner’s denial of her disability benefits application under Title II 

of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and review 

* 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

APR 22 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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the district court’s decision de novo. Miskey v. Kijakazi, 33 F.4th 565, 570 (9th Cir. 

2022). We must affirm if the Commissioner’s disability determination is “supported 

by substantial evidence” and “free of legal error.” Shaibi v. Berryhill, 883 F.3d 1102, 

1106 (9th Cir. 2017). 

Rodriguez argues that the administrative law judge (“ALJ”): (1) improperly 

discounted the credibility of her symptom testimony; (2) erroneously concluded her 

medical impairments did not satisfy the “Paragraph C” requirements under 20 C.F.R. 

Pt. 404, Subpt. P, App. 1 § 12.00A(2)(c); (3) falsely conflated medical and agency 

terminology during his residual functional capacity (“RFC”) assessment; and (4) 

improperly credited the testimony of a non-treating physician over the testimony of 

a treating nurse practitioner. For the reasons below, these arguments fail, and we 

affirm. 

1. Credibility. Rodriguez first argues that the ALJ’s reasons for 

discrediting her symptom testimony did not “rationally relate” to the disability 

factors listed in 20 C.F.R. § 404.1529(c)(3). Generally, an “ALJ can reject the 

claimant’s testimony about the severity of her symptoms only by offering specific, 

clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 

(9th Cir. 1996). Here, the ALJ clearly and convincingly explained that Rodriguez’s 

symptom testimony failed to support the relevant disability factors because it was 

inconsistent with other evidence. Cf. id. at 1284 (noting that a claimant’s symptom 
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testimony must be considered in light of the overall record). Throughout his 

Paragraph B analysis, the ALJ listed each disability factor, identified Rodriguez’s 

relevant symptom testimony, and then described record evidence supporting and 

undermining her testimony before determining her functional limitations. For 

example, when considering Rodriguez’s limitations with “concentrating, persisting, 

or maintaining pace,” the ALJ noted, “The claimant alleges difficulty with 

concentration. She was unsure how long she could pay attention. A consultative 

examiner found no evidence of impairment in this domain.” 

Thus, the ALJ adequately explained (and reasonably concluded) that 

Rodriguez’s symptoms did not satisfy the disability factors under 20 C.F.R. 

§ 404.1529(c)(3). 

2. Paragraph C. Rodriguez next argues that the ALJ’s Paragraph C 

analysis was unsupported by substantial evidence. “Substantial evidence is relevant 

evidence which, considering the record as a whole, a reasonable person might accept 

as adequate to support a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th 

Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 

(9th Cir.1995)). Some specific findings in the Paragraph C analysis do not 

reasonably support the ALJ’s conclusion that Rodriguez’s impairments were not 

“serious and persistent.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00A(2)(c). For 

example, Rodriguez’s ability to cook and her church attendance do not undermine 
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her “marginal adjustment,” i.e., her minimal capacity to handle changes that are not 

already part of her daily life. See id. § 12.00G(2)(c). 

However, the Paragraph C analysis did not rest on these findings alone. The 

ALJ also expressly incorporated “the record review” and medical expert testimony 

thoroughly outlined elsewhere in the decision, both of which support his 

Paragraph C determination. See Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 

2014) (“[W]e must consider the entire record as a whole[.]” (first alteration in 

original) (citation omitted)). For example, the ALJ carefully noted that Rodriguez 

periodically declined therapy and failed to take her medications, which suggests she 

was not receiving “ongoing” medical care as required under C1. See Kitchen v. 

Kijakazi, 82 F.4th 732, 741 (9th Cir. 2023) (finding C1 “is satisfied when the 

evidence shows that [the claimant] rel[ies], on an ongoing basis, upon medical 

treatment, mental health therapy, psychosocial support(s), or a highly structured 

setting(s), to diminish the symptoms and signs of [his] mental disorder.” (alterations 

in original) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00G(2)(b))). 

Additionally, the ALJ outlined testimony from Dr. Julian Kivowitz, examiner 

Gwendolyn Johnson, and state officials, suggesting that Rodriguez’s symptoms were 

manageable, which supports his finding that Rodriguez could not show marginal 

adjustment under C2. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00G(2)(c). 
5 

Thus, the ALJ’s Paragraph C determination was supported by substantial 

evidence. 

3. Residual Functional Capacity. The ALJ determined that Rodriguez 

“has the residual functional capacity to perform a full range of work at all exertional 

levels but with the following nonexertional limitations: she is capable of performing 

simple routine tasks with no more than occasional interaction with coworkers, 

supervisors, and the public.” Rodriguez unsuccessfully attacks this RFC 

determination on two bases.

First, she claims the ALJ never explained why he believed Rodriguez’s 

limitations would be accommodated in the workplace. But the ALJ clearly 

explained that, based on the vocational expert’s testimony, work as an office helper 

would accommodate Rodriguez’s limitations. The ALJ’s conclusion was supported 

by substantial evidence.

Second, Rodriguez claims that the ALJ erroneously conflated “moderate” 

medical symptoms and “moderate” regulatory limitations. Even accepting this 

argument, the RFC determination was independently supported by other substantial 

evidence, and thus, any error was harmless. Lambert v. Saul, 980 F.3d 1266, 1278 

(9th Cir. 2020) (noting that error is harmless when it is “inconsequential to the 

ultimate nondisability determination” (quoting Brown-Hunter v. Colvin, 806 F.3d 

487, 494 (9th Cir. 2015))). The RFC analysis thoroughly described medical records 
6 

from 2015 to 2021, which strongly suggest that Rodriguez’s conditions were 

manageable with medication and treatment. Most of this analysis did not turn on the 

ALJ’s use of the word “moderate.” 

Therefore, notwithstanding any possible error, Rodriguez fails to show the 

RFC determination was unsupported by substantial evidence. 

4. Expert Testimony. Finally, Rodriguez argues the ALJ improperly 

credited Dr. Julian Kivowitz’s opinion over the opinion of the nurse practitioner, 

who had treated Rodriguez. However, the ALJ properly discounted the nurse

practitioner’s opinion for “germane” reasons, such as its inconsistency with the 

overall record and her use of fill-in-the-blank forms. See Popa v. Berryhill, 872 F.3d 

901, 906 (9th Cir. 2017) (“An ALJ may discount the opinion of an ‘other source,’ 

such as a nurse practitioner, if she provides ‘reasons germane to each witness for 

doing so.’”) (citation omitted); Woods v. Kijakazi, 32 F.4th 785, 794 (9th Cir. 2022) 

(affirming an ALJ’s decision to discount a treating nurse practitioner’s opinion 

where it was drafted on a “fill-in-the-blank questionnaire” and inconsistent with 

other evidence). Additionally, although Dr. Kivowitz was a non-treating physician, 

he is a psychologist, and thus, the ALJ appropriately gave his testimony “significant 

weight.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (“Greater weight is 

also given to the ‘opinion of a specialist about medical issues related to his or her 

area of specialty.’” (quoting 20 C.F.R. § 404.1527(c)(5))).
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Accordingly, the ALJ’s consideration of the expert testimony was not 

erroneous. 

AFFIRMED.