NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERI ANNE JACAWAY,

Plaintiff

- Appellant,

v. KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant

- Appellee. No. 20

- 36075
D.C. No. 3:20

- cv - 05295

- MAT

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Mary Alice Theiler, Magistrate Judge, Presiding

Submitted March 8, 2022 * * Portland, Oregon Before: GRABER, BEA, and VANDYKE, Circuit Judges. Cheri Jacaway appeals the district court’s order affirming the A dministrative

L aw J udge ’ s (ALJ) denial of her application for disability insurance benefits and supplemental social security income under the Social Security Act. We have

* 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 10 2022
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s order affirming the ALJ, and we must
affirm the ALJ’s decision if it applied the correct legal standard and its
determinations are supported by substantial evidence. See Carillo

- Yeras v. Astrue , 671 F.3d 731, 734 (9th Cir. 2011); Lewis v. Astrue , 498 F.3d 909, 911 (9th Cir. 2007). First, substantial evidence supports the ALJ’s decision to discount Jacaway’s subjective claims in light of the objective medical evidence

. I t is the ALJ’s duty to evaluate competing evidence, including a claimant’s subjective complaints

. See
Ahearn v. Saul , 988 F.3d 1111, 1116 (9th Cir. 2021) (“An ALJ is not required to believe every allegation o f disabling pain. ” (quotation marks and citation omitted) )

. The ALJ determined that Jacaway overstated both the physical and mental severity
of her claims , and the ALJ gave clear and convincing reasons that were supported by substantial evidence. See Par ra v. Astrue , 481 F.3d 742, 750 (9th Cir. 2007) (“These inconsistencies constitute significant and substantial reasons to find [claimant’s] testimony less than completely credible.”). Second, substantial evidence supports the ALJ’s decision to discount ce rtain favorable medical opinions after concluding that those opinions relied on unreliable
information and were inconsistent with other portions of the medical record. I t is the ALJ who is “responsible for determining credibility, resolving conflicts in3

medical testimony, and for resolving ambiguities.” Ford v. Saul , 950 F.3d 1141,
1149 (9th Cir. 2020) (citation omitted)

. The ALJ discounted some medical opinions
because those opinions relied heavily on Jacaway’s self

- reporting, which the ALJ already had concluded was unreliable. 1 T he ALJ also discounted these opinions because they were based on limited interactions with Jacaway, failed to account for
the situational na ture of her limitations, and were not consistent with the totality of
the record. See id. at 1156 . The ALJ instead accorded more weight to the medical opinions that the ALJ concluded were better aligned with other medical record s
. 2
See 20 C.F.R. § 404. 1527(c)(4) (“Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion.”). It is the ALJ’s responsibility to evaluate conflicting pieces of evidence, and the ALJ
here offered clear reasons for her rationale that were supported by substantial
evidence. Third, we are not persuaded that the case should have been remanded after Dr. Wheeler reexamined Jacaway two months after the ALJ ’s determination and found severe limitations that would likely last for 12 months. When a claimant submits

1 These opinions were provided by Keith Krueger, Peter Weiss, and Kimberly Wheeler , three medical professionals who concluded that Jaca way had marked or severe limitations with respect to skills needed to be a functioning employee.
2 These included the opinions of Shawn Horn and Michael Regets , who both opined that Jacaway was capable of working

.4

new evidence to the Appeals Council , as wa s the case here, the reviewing court asks whether the ALJ’s order is “supported by substantial evidence” in light of the “record as a whole, including the [new] evidence.” Brewes v. Comm’r of Soc. Sec. Admin. , 682 F.3d 1157, 1160 (9th Cir. 2012). Even considering this additional evidence, the ALJ’s decision is still supported by substantial evidence. Jacaway admits that Dr. Wheeler “made similar findings to her earlier opinion,” so the same reasons for
which the ALJ discounted Dr. Wheeler’s first opinion apply to her similar second opinion

. And the new report examined Jacaway in April 2019, but the ALJ’s
dec ision only examined Jacaway’s limitations up through February 2019, so the new findings were irrelevant to the ALJ’s conclusion

. Fourth and finally, Jacaway challenges her denial of benefits on constitutional grounds. Jacaway argues that the statutory r emoval protections for the Social Security Commissioner are unconstitutional in light of the Supreme Court’s
decisions in Seila Law LLC v. CFPB , 140 S. Ct. 2183 (2020) , and Collins v. Yellin , 141 S. Ct. 1761 (2021) , and that the Appeals Council was imprope rly insulated from
the President in violation of Free Enterprise Fund v. Public Company Accounting Oversight Board , 561 U.S. 477 (2010). We decline to consider the merits of these
argument s here because Jacaway forfeited them by raising them for the first time in a 28(j) letter. “ A rguments raised for the first time in 28(j) letters are ordinarily considered waived,” especially arguments pertaining to “complex issue[s] ....”5

Pakootas v. Teck Cominco Metals, L td

. , 830 F.3d 975, 98 6 n.12 (9th Cir . 2016).
AFFIRMED.