NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL KALLENBACH, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner Social Security, 

Defendant-Appellee.

No. 17-35756

No. 3:17-cv-05127-MAT

MEMORANDUM*

Appeal from the United States District Court 

for the Western District of Washington

Mary Alice Theiler, Magistrate Judge, Presiding

Submitted March 27, 2019**

Before: FARRIS, O’SCANNLAIN, and TROTT, Circuit Judges. 

Michael Kallenbach appeals the district court’s affirmance of the 

Commissioner of Social Security’s denial of his application for disability insurance 

benefits under Title II of the Social Security Act. We have jurisdiction under 28 

U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 

 

* 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

MAR 29 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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F.3d 872, 875 (9th Cir. 2016), and we affirm.

Any error the ALJ committed in finding Kallenbach’s impairments did not 

meet Listing 1.04(A) was harmless. Regarding the Listing’s first requirement that 

the claimant have evidence of nerve root compression, the record contains 

evidence of nerve root compromise but also indicates this symptom improved. See

20 C.F.R. Pt. 404, Subpt. P, App.1, Listing 1.04. Kallenbach’s degree of 

improvement is not entirely clear from the medical records both parties cite.

Although the “ALJ is responsible for . . . resolving ambiguities” in the medical 

record, Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995), the ALJ did not 

specifically address this ambiguity. However, this error was harmless, as 

Kallenbach has not demonstrated he has met all of the Listing’s remaining criteria. 

Regarding Listing 1.04’s second requirement, “limitation of motion of the 

spine,” 20 C.F.R. Pt. 404, Subpt. P, App.1, Listing 1.04, Kallenbach cites notes 

from a November 2013 examination that state he had “decreased flexion of [the] 

lumbar spine,” indicating he fulfilled this criterion. However, the medical evidence 

does not show Kallenbach met Listing 1.04’s third requirement of motor loss 

accompanied by sensory or reflex loss. 20 C.F.R. Pt. 404, Subpt. P, App.1, Listing 

1.04(A). Exam results from November 2013 specify he had no deep tendon 

reflexes in his Achilles but also state Kallenbach’s “[m]otor [functions] . . . are 

intact in the bilateral extremities.” In addition, regarding the Listing’s fourth 
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criterion—positive straight-leg raising test results, both sitting and supine, id.—

November 2013 examination results state Kallenbach had a positive left straightleg raise but do not specify if the testing conducted included sitting, supine, or both 

types of straight-leg testing. Finally, concerning the Listing’s twelve-month 

durational requirement, while Kallenbach cites notes from a November 2014 

medical appointment, stating these show he “continues to have left low back 

pain[,] . . . numbness and weakness in the left foot[,] . . .[and] a mildly antalgic 

gait,” this does not show that a year later Kallenbach still met the specific criteria 

for Listing 1.04. See 20 C.F.R. Pt. 404, Subpt. P, App.1, Listing 1.04. As a result, 

any error the ALJ committed by not directly addressing the ambiguous evidence 

concerning whether Kallenbach fulfilled the first requirement of the Listing was 

harmless, as substantial evidence in the record supports the ALJ’s finding that 

Kallenbach did not fulfill all of the Listing’s requirements for at least twelve 

months. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).

We reject Kallenbach’s argument that the ALJ erred by failing to sufficiently 

discuss the evidence that supported the conclusion that Kallenbach did not fulfill 

the Listing’s requirements. Kallenbach cites Marcia v. Sullivan, 900 F.2d 172, 176 

(9th Cir. 1990), in support. However, as the district court pointed out, Marcia 

applies when a claimant attempts to establish his conditions equal, rather than 

meet, a listing, and requires ALJs to explain why evidence does or does not 
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demonstrate equivalency. Because Kallenbach has not contended his conditions 

equal Listing 1.04, Marcia is inapposite.

The ALJ provided specific, clear, and convincing reasons for discounting 

Kallenbach’s testimony, including inconsistencies between Kallenbach’s 

allegations of impairment and his medical treatment records, inconsistencies 

between the medical opinion evidence and Kallenbach’s testimony, and 

Kallenbach’s failure to seek and adhere to prescribed treatment. See Bray v. 

Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Thomas v. 

Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); Molina, 674 F.3d at 1113. 

Kallenbach’s contention that the ALJ failed to associate the objective 

medical evidence with specific testimony the ALJ discounted lacks merit. The ALJ 

identified specific examples of medical evidence that did not support Kallenbach’s 

allegations, such as treatment notes indicating Kallenbach’s nerve compression had 

improved to the point where he no longer required surgery. Kallenbach’s assertion 

that the medical sources did not consider the impact of his lumbar impairment 

when opining about the work Kallenbach would be able to perform, but rather only 

considered limitations arising from his other impairments related to his worker’s 

compensation claim, is not borne out by the record. For instance, when opining 

that Kallenbach had environmental limitations concerning the work he could 

perform, consulting physician Dr. Platter stated Kallenbach would need to avoid 
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concentrated exposure to vibrations and hazards due to “recurrence of lumbar 

disc.” Kallenbach’s remaining arguments advocate for an alternative to the ALJ’s 

rational interpretation of the record, and so Kallenbach has not identified a basis 

for reversal. See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).

Lastly, the ALJ provided germane reasons for discounting the lay witness

testimony from Kallenbach’s girlfriend, Heidi Frost, including discrepancies 

between her statements and the evidence from Kallenbach’s treating and 

examining sources. See Molina, 674 F.3d at 1114. Even if the ALJ erred in citing 

the conflict between Ms. Frost’s statements and these medical opinions, the error 

was harmless. Ms. Frost’s testimony described limitations similar to those that 

Kallenbach alleged. Because the ALJ provided clear and convincing reasons for 

discounting Kallenbach’s testimony, “it follows that the ALJ also gave germane 

reasons for rejecting [Ms. Frost’s] testimony.” See Valentine v. Comm’r Soc. Sec. 

Admin., 574 F.3d 685, 694 (9th Cir. 2009).

AFFIRMED.