NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DALE A. LOUPEE, 

Plaintiff-Appellant, 

 v. 

MARTIN J. O'MALLEY, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 23-35150 

D.C. No. 1:21-cv-03104-JAG 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

James A. Goeke, Magistrate Judge, Presiding

Submitted April 1, 2024**

Portland, Oregon

Before: OWENS and FRIEDLAND, Circuit Judges, and ORRICK,*** District 

Judge.

Becky A. Loupee appealed the district court decision affirming 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).

*** The Honorable William Horsley Orrick, United States District Judge 

for the Northern District of California, sitting by designation.

FILED

AUG 16 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Commissioner of Social Security’s denial of her application for disability 

insurance benefits under Title II of the Social Security Act (“Act”) for the period 

of February 1, 2012 through February 22, 2015.

1

 

In a prior determination issued in 2015, an Administrative Law Judge 

(“ALJ”) concluded that given Loupee’s Residual Functional Capacity (“RFC”),

Loupee was not disabled until February 23, 2015, when she turned 55 years old. 

Following a series of stipulated remands and further proceedings, an ALJ again 

concluded in a decision dated June 4, 2021, that Loupee was not disabled between 

February 1, 2012, and February 22, 2015.

2

 That determination was affirmed by the

district court.

As the parties are familiar with the facts, we do not recount them here. We 

have jurisdiction under 28 U.S.C. § 1291. We review de novo, Attmore v. Colvin, 

827 F.3d 872, 875 (9th Cir. 2016), and we affirm.

1. Loupee cannot challenge the ALJ’s Step Five reliance on the job 

numbers provided by the Vocational Expert (“VE”). Loupee forfeited that

challenge by not submitting evidence or argument in support of it at any point 

1 Becky Loupee passed away after her notice of appeal was filed. Her husband,

Dale Loupee, was allowed to substitute in as her personal representative under Fed. 

R. App. P. 43(a)(1). 

2 The ALJ decision under review erroneously states that Loupee had been 

determined eligible for social security benefits starting on February 24, 2015, but 

she was granted benefits starting on February 23, 2015.
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during the administrative proceedings. See Shaibi v. Berryhill, 883 F.3d 1102, 

1108-09 (9th Cir. 2017), as amended (Feb. 28, 2018) (“[W]hen a claimant fails 

entirely to challenge a vocational expert’s job numbers during administrative 

proceedings before the agency, the claimant forfeits such a challenge on appeal, at 

least when that claimant is represented by counsel.”); Meanel v. Apfel, 172 F.3d 

1111, 1115 (9th Cir. 1999), as amended (June 22, 1999) (Represented claimants 

“must raise all issues and evidence at their administrative hearings in order to 

preserve them on appeal. The ALJ, rather than this Court, was in the optimal 

position to resolve the conflict between [claimant’s] new evidence and the 

statistical evidence provided by the VE.”). By waiting to raise legal challenges to 

the VE’s job numbers and present evidence of contrary job numbers until the case 

came to district court, Loupee deprived the Commissioner of the opportunity to 

address the alleged discrepancy and error. See Wischmann v. Kijakazi, 68 F.4th 

498, 505-06 (9th Cir. 2023).

2. The ALJ provided specific, clear, and convincing reasons to discount 

Loupee’s subjective testimony that her physical and mental health symptoms

prevented her from working. With respect to her physical conditions, the ALJ

appropriately relied on treatment notes and examinations showing that her 

generally mild conditions responded well to conservative treatments to discount 

Loupee’s claimed severity. See Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 
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2022) (“When objective medical evidence is inconsistent with a claimant’s 

subjective testimony, 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.’” (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 

2014))); Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001) (that “the 

claimant has not participated in any significant pain regimen or therapy program,” 

was appropriately considered in discounting “the claimant’s allegations of 

disabling pain excess pain and limitation”).

With respect to Loupee’s mental health limitations, the ALJ acknowledged 

the existence of Loupee’s depression and anxiety but found that those conditions 

responded well to and were largely controlled by medications during the relevant 

timeframe. 

Finally, the ALJ did not err in finding Loupee’s daily activities – including 

caring for grandchildren, driving, doing household chores, and engaging in crafts 

and hobbies, as well as her ability to lift up to 20 pounds – contrasted with 

Loupee’s allegations of totally debilitating symptoms. See Orn v. Astrue, 495 F.3d 

625, 639 (9th Cir. 2007) (an ALJ may discount a claimant’s testimony if the 

claimant’s daily activities contradict the testimony).

3. The ALJ considered the requisite factors and applied the correct legal 

standard in evaluating the medical source opinions. The ALJ provided clear and 
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convincing reasons to reject as cursory and unsupported the opinion of Loupee’s 

treating physician limiting her to sedentary work. See Ford v. Saul, 950 F.3d 1141, 

1155 (9th Cir. 2020) (“An ALJ is not required to take medical opinions at face 

value, but may take into account the quality of the explanation when determining 

how much weight to give a medical opinion.”); Rollins v. Massanari, 261 F.3d 

853, 856 (9th Cir. 2001) (ALJ permissibly discounted treating physician’s opinion 

where, among other factors, the examination notes did not include “the sort of 

description and recommendations one would expect to accompany a finding” of 

disability).

The ALJ did not err in discounting the limitation on lifting and requiring 

“extra breaks” imposed by a consultative examining physician in February 2012 

when that limitation was rejected by a second consultative examining physician in 

2014 (based on Loupee’s self-report) and the basis for that limitation was 

unidentified and failed, in functional terms, to describe what it would entail. See 

Ford, 950 F.3d at 1156 (ALJs can disregard vague opinions as not useful where 

they fail to specify “functional limits.”).

The ALJ did not err in discounting the hours limitation on sitting and 

walking imposed by a different consultative examining physician in 2014 because 

it was inconsistent with the findings on the examination and the record as a whole. 

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (inconsistency between 
6 

a physician’s opinion and the medical record constitutes a “specific and legitimate 

reason” to discount the opinion). The ALJ appropriately relied on the opinions of 

the other state agency consultants and, more critically, the independent medical 

examiner who testified in this regard at the hearing. 

Finally, the ALJ did not err in rejecting the limitations imposed by the 

consultative psychiatric examiner that Loupee needed “additional supervision and 

instruction” and appropriately discounted that opinion as “vague and left 

unexplained” and because the examiner did not identify any examination findings 

or other support for the limitation. The ALJ also explained that the opinion was 

not supported by any other opinion evidence or medical records. Woods v. 

Kijakazi, 32 F.4th 785, 794 (9th Cir. 2022) (no error where ALJ found medical 

provider’s opinions of limitations “on a fill-in-the-blank questionnaire” not 

persuasive because they were not supported by any explanation or pertinent exam 

findings).

Finally, the ALJ provided clear and convincing reasons in support of giving 

significant weight to the opinions of the neutral medical expert who testified 

during the ALJ hearing. Contrary to Loupee’s assertion, that medical expert 

addressed imaging regarding Loupee’s degenerative disc disease and explained his 

disagreement with the lifting limitation identified by the first consultative 

examining physician.
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AFFIRMED.