NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL G. SZMANIA, 

Plaintiff-Appellant, 

 v. 

KILOLO KIJAKAZI, Acting Commissioner 

of Social Security, 

Defendant-Appellee.

No. 21-36053 

D.C. No. 3:20-cv-06228-MLP 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Michelle L. Peterson, Magistrate Judge, Presiding

Submitted September 19, 2023**

Before: D. NELSON, O’SCANNLAIN, and KLEINFELD, Circuit Judges.

 

Daniel G. Szmania appeals pro se from the district court’s judgment 

affirming the Commissioner of Social Security’s decision denying 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, 

* 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

SEP 19 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-36053 

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

We reject Szmania’s contention that the ALJ was not properly appointed 

under Article II, Section 2, Clause 2 of the United States Constitution, pursuant to 

Lucia v. S.E.C., 138 S. Ct. 2044 (2018), where Szmania does not dispute that the 

Commissioner ratified the ALJ’s appointment prior to Szmania’s hearing. See 

Carr v. Saul, 141 S. Ct. 1352, 1357 (2021) (establishing that the Commissioner 

preemptively resolved any Appointments Clause issues by ratifying the 

appointments of all SSA ALJs on July 16, 2018). 

Substantial evidence supports the ALJ’s determination that Szmania did not 

have a severe impairment or combination of impairments prior to his date last 

insured. See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The ALJ did 

not ignore impairments, and substantial evidence supports the ALJ’s determination 

that several of Szmania’s conditions were not medically determinable impairments 

during the period at issue. See Ukolov v. Barnhart, 420 F.3d 1002, 1005–06 (9th

Cir. 2005) (finding that in the absence of objective diagnostic findings, claimant 

did not establish a medically determinable impairment). 

The ALJ provided clear and convincing reasons to discount Szmania’s 

subjective allegations as inconsistent with Szmania’s medical record and work 

history. See Ahearn v. Saul, 988 F.3d 1111, 1117 (9th Cir. 2021) (concluding that 

claimant’s employment history undermined claim of longstanding impairment); 
3 21-36053 

Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) 

(“Contradiction with the medical record is a sufficient basis for rejecting the 

claimant’s subjective testimony.”); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 

Cir. 2008) (finding that inconsistent symptom reporting undermined claimant’s 

testimony). 

The ALJ provided specific and legitimate reasons to reject opinions from

treating psychologist Cynthia Parker and several consulting physicians because 

they were issued several years after Szmania’s date last insured, they do not 

address Szmania’s level of functioning during the relevant period, and the record 

lacks evidence of functional impairment during Szmania’s insured period. See

Ford v. Saul, 950 F.3d 1141, 1154, 1156 (9th Cir. 2020) (holding that an ALJ may 

reject an opinion as “inadequately supported by clinical findings” or because it 

does not “provide useful statements” as to the claimant’s degree of limitation

(citation and internal quotation marks omitted)). The ALJ did not err in evaluating 

the opinion of Dr. J.D. Fitterer, a nonexamining medical advisor, where the ALJ 

accepted Dr. Fitterer’s assessment of insufficient evidence as consistent with the 

record and correctly observed that Dr. Fitterer did not express an opinion as to 

Szmania’s functional ability. See id.

The ALJ provided specific, valid reasons to assign little weight to the 

Department of Veterans Affairs 2017 disability rating because it did not address 
4 21-36053 

Szmania’s functional ability during the relevant period; it was based on exams that 

began several years after Szmania’s date last insured; and although his conditions’ 

connection to his military service implied continuity of symptoms, this implication 

was inconsistent with Szmania’s lengthy periods of employment after his military 

service and with the record evidence from the period at issue. See Berry v. Astrue, 

622 F.3d 1228, 1236 (9th Cir. 2010) (concluding that the ALJ properly discounted 

VA disability rating as inconsistent with the record).

The ALJ provided a germane reason to discount a lay witness statement 

from Szmania’s girlfriend because it lacked information concerning the relevant 

period. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 

2009) (establishing that an ALJ must provide germane reasons to discount lay 

witness evidence). 

The ALJ did not err by failing to develop the record. See Mayes v. 

Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001) (explaining that a duty to 

develop the record “is triggered only when there is ambiguous evidence or when 

the record is inadequate to allow for proper evaluation of the evidence”). 

Because the ALJ did not err at step two, and substantial evidence supports the 

ALJ’s step two determination, the ALJ did not err by not proceeding to further 

steps in the sequential analysis. See Ukolov, 420 F.3d at 1003 (“If a claimant is 

found to be disabled or not disabled at any step in the sequence, there is no need to 
5 21-36053 

consider subsequent steps.” (citation and internal quotation marks omitted)).

Szmania’s request for a refund of monies paid into the Social Security 

system is not properly before us. See 42 U.S.C. § 405(g). 

AFFIRMED.