NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN SCHIAFFINO, 

Plaintiff-Appellant, 

 v. 

KILOLO KIJAKAZI, Acting Commissioner 

of Social Security, 

Defendant-Appellee.

No. 22-35288

D.C. No. 3:21-cv-05231-BAT

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Brian A. Tsuchida, Magistrate Judge, Presiding

Argued and Submitted February 14, 2023 

Seattle, Washington

Before: PAEZ and VANDYKE, Circuit Judges, and LIBURDI,

** District Judge.

Dissent by Judge PAEZ.

Martin Schiaffino appeals the district court’s affirmation of the denial of his 

application for disability benefits. He contends the ALJ who denied those benefits 

* This disposition is not appropriate for publication and is not precedent except as 

provided by Ninth Circuit Rule 36-3. 

** The Honorable Michael T. Liburdi, United States District Judge for the District of 

Arizona, sitting by designation.

FILED

MAY 1 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

improperly discounted (1) his testimony, (2) lay witnesses’ statements, (3) the 

supportive opinion of an examining physician, and (4) a disability determination by 

the Veterans Administration. He further contends the ALJ miscalculated his residual 

functional capacity (RFC) by not giving greater weight to limitations found only in 

those discounted sources. He lastly contends this is an extraordinary case where we 

can remand for an award of benefits. We have jurisdiction under 28 U.S.C. § 1291, 

and we deny the appeal.

Martin Schiaffino is a college-educated veteran who was continuously 

employed, often as a manager, during the first years after he transitioned into civilian 

life. When he lost his job at a home improvement store in 2015, he conducted a 

wide-ranging job search and swore on his application for unemployment benefits 

that he was ready and able to take any job offered. But three months into that job 

search, he applied for social security income and disability insurance benefits 

(SSDI). In his application, he swore he had been unable to work any job during the 

preceding months because of mental and physical disabilities including PTSD and 

diabetes mellitis. 

The Social Security Administration denied him SSDI. The district court 

affirmed, but our court in 2020 remanded for the agency to further develop the record 

and reconsider Schiaffino’s application. 

The agency added approximately 1,700 pages of medical documentation to 
3 

Schiaffino’s administrative record before a different ALJ reheard the case. That 

second ALJ again denied benefits. The district court affirmed on appeal, and 

Schiaffino now appeals to us. 

We review a district court’s judgment affirming the agency’s denial of SSDI 

de novo, and we “set aside a denial of benefits only if it is not supported by 

substantial evidence or is based on legal error.” Smartt v. Kijakazi, 53 F.4th 489, 

494 (9th Cir. 2022) (quotation omitted). Substantial evidence is such “relevant 

evidence” as “a reasonable mind might accept as adequate to support a conclusion.” 

Farlow v. Kijakazi, 53 F.4th 485, 487–88 (9th Cir. 2022) (quotation omitted). If the 

evidence in the record “is susceptible to more than one rational interpretation,” the 

ALJ’s conclusion “must be upheld.” Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 

2022) (internal quotation marks and citation omitted).

To determine whether a claimant is disabled within the meaning of the Social 

Security Act, an ALJ must follow a prescribed five-step analysis. See 20 C.F.R. 

§ 404.1520. In the first four steps, the ALJ determines whether the claimant has a 

disability that is “severe enough to prevent [him] from doing a gainful activity” and 

whether the claimant retains sufficient RFC to perform any job he’s done in the past 

15 years. 20 C.F.R. § 404.1520(a)(4)(iii), (e); 20 C.F.R. § 404.1525(a); 20 C.F.R. 

§ 404.1560(b)(1). If he cannot, the burden shifts to the agency to prove he can 

perform “a significant number of other jobs in the national economy.” White v. 
4 

Kijakazi, 44 F.4th 828, 833–34 (9th Cir. 2022); see 20 C.F.R. § 416.960(c)(2).

If the claimant testifies and provides corroborating medical evidence for his 

testimony and there is no evidence of malingering, the ALJ can reject his testimony 

only by offering “specific, clear, and convincing reasons for doing so.” Garrison v. 

Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). If the claimant offers a lay witness to 

corroborate his testimony, the ALJ must take that testimony into account unless “she 

expressly determines to disregard [it] and gives reasons germane to each witness for 

doing so.” Diedrich v. Berryhill, 874 F.3d 634, 640–41 (9th Cir. 2017) (internal 

quotation marks and citation omitted). An ALJ must evaluate all opinions a claimant 

offers from a medical professional. 20 C.F.R. § 404.1527(c). If those opinions 

contradict each other, she ultimately is “the final arbiter” with respect to “resolving 

ambiguities in the medical evidence.” Smartt, 53 F.4th at 494.

In cases that involve veterans who have also applied for disability through the 

VA, an ALJ similarly must at least consider a VA determination of disability during

her own review of the record and “must ordinarily give [it] great weight.” Luther v. 

Berryhill, 891 F.3d 872, 876 (9th Cir. 2018) (quotations omitted). But a VA 

disability determination is not dispositive. Valentine v. Comm’r of Soc. Sec. Admin, 

574 F.3d 685, 695 (9th Cir. 2009) (quotation omitted). An “ALJ is not compelled 

to adopt the conclusions of the VA’s decisions wholesale,” but may deviate from 

final VA determinations upon “contrary evidence that is ‘persuasive, specific, valid’ 
5 

and supported by the record.” Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) 

(quoting McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002)). 

Schiaffino argues the ALJ improperly rejected parts of his testimony about his 

symptoms as inconsistent with his medical record without offering any specific, 

clear, and convincing reason. But the ALJ provided such reasons. She chronicled 

his course of treatment from 2011 to 2020—considering and discussing individual 

treatment notes across years of Schiaffino’s mental health exams—to draw from 

them a conclusion that the course of treatment was consistent with milder symptoms 

than his testimony suggests. And she surveyed the activities Schiaffino had been 

involved in since the alleged onset of his disability and found them dissonant with 

his testimony. Collectively, those considerations offer “such relevant evidence as a 

reasonable mind might accept as adequate to support” the ALJ’s conclusion that 

Schiaffino’s symptoms were milder than he claimed. Smartt, 53 F.4th at 494 

(quotation omitted); see also Smith, 14 F.4th at 1113.

Schiaffino similarly argues that the ALJ committed error in failing to list his 

obsessive compulsive disorder as a severe impairment. But an ALJ’s failure to 

identify every severe impairment at step two is not reversable error provided the ALJ 

considers all an individual’s impairments—even those that are not severe—in 

assessing the RFC. See Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017)

(explaining that step two “is not meant to identify the impairments that should be 
6 

taken into account when determining the RFC”). In making her RFC findings, the 

ALJ explicitly listed Schiaffino’s “obsessive behavior” before explaining why the 

inconsistencies in the medical record undermined the weight that could be given to 

his symptom testimony. Having specifically taken his obsessive behavior into 

account, any alleged error in failing to characterize Schiaffino’s obsessive 

compulsive disorder as “severe” did not affect the ALJ’s overall RFC assessment. 

See id. at 1049 (stating that RFC “should be exactly the same regardless of whether 

certain impairments are considered ‘severe’ or not”) (emphasis omitted).

1

Schiaffino further argues the ALJ impermissibly discounted his lay witnesses’ 

statements. But that argument fails because his manager and wife both offered 

testimony substantially similar to his. That similarity meant the ALJ could discount 

their statements to the extent she discounted his similar statements. Valentine, 574 

1 The dissent “would remand because the ALJ failed to take into account the 

limitations caused by Schiaffino’s obsessive compulsive disorder,” specifically, his 

compulsive handwashing. Respectfully, the record belies the notion that the ALJ 

failed to take Schiaffino’s obsessive behavior into account: she in fact refers to it in 

her analysis before concluding that (1) the “overall record does not establish” that 

Schiaffino’s disabilities qualify as a severe disability under 20 C.F.R. 

§ 404.1567a(c); and (2) Schiaffino retains residual functional capacity to hold 

certain jobs. 

What the dissent ultimately disagrees with is the weight the ALJ gave this obsessive 

behavior in her analysis. But even if the evidence in the record “is susceptible to 

more than one rational interpretation,” Woods, 32 F.4th at 788, it is well-settled that 

we cannot simply second guess the weight an ALJ gives to individual factors in her 

RFC analysis. Instead, we must review the RFC finding for substantial evidence. 

Farlow at 487–88.
7 

F.3d at 694.

Schiaffino also argues the ALJ improperly discounted his examining 

physician’s opinion. But his position is contrary to our precedent regarding the 

ALJ’s power to weigh medical professionals’ testimony. Provided an ALJ evaluates 

all the medical opinions in the administrative record and provides “specific and 

legitimate reasons” for her choices, she is the final arbiter of how much relative 

weight to give opinions that are in tension with or contradict each other. Smartt, 53 

F.4th at 494; see 20 C.F.R. § 404.1527(c). Here, the ALJ incorporated into her RFC

those parts of that examining physician’s report—both those favorable to and those 

adverse to a disability finding—that were consistent with Schiaffino’s subsequent 

medical records. Only those parts of the physician’s assessment that conflicted with 

four other medical opinions, the medical records, and Schiaffino’s activities were 

discounted. 

Schiaffino argues the ALJ also improperly discounted the VA’s disability 

determination. But an examination of the decision compels the opposite conclusion. 

The ALJ noted that the VA determination was inconsistent with objective findings 

in Schiaffino’s medical records. That included material facts such as his mental 

state, demeanor, cognition, and communication skills. The ALJ’s decision discussed 

an additional five years of medical treatment records that were necessarily 

unavailable to the VA when it rendered its decision in June of 2015. With this 
8 

expanded treatment history, the ALJ arrived at a conclusion contrary to the VA’s.

See Valentine, 574 F.3d at 695 (reasoning an “ALJ was justified in rejecting the 

VA’s disability rating on the basis that she had evidence the VA did not”). And by 

noting the above inconsistencies, the ALJ’s decision provided “persuasive, specific, 

valid reasons” for discounting the VA’s disability rating. McCartey, 298 F.3d at 

1076. 

The dissent deems the ALJ’s analysis nonetheless insufficient because, in the 

dissent’s view, it does not remedy two analytical errors a prior panel of our court 

instructed the agency to fix when the case last was before us. See Schiaffino v. Saul, 

799 Fed. App’x 473 (9th Cir. 2020). First, the agency was instructed not to reject 

the VA disability determination without analysis simply because VA and Social 

Security proceedings impose different evidentiary burdens for establishing 

disability. Saul, 799 Fed. App’x at 476. Second, the agency was instructed not to 

simply assume that some of Schiaffino’s energetic leisure activities—such as four 

wheeling, shooting a gun, and taking a trip to Disneyland—show that he has 

capacities transferrable to a work setting. Id.

Respectfully, the dissent appears to misread either the prior panel decision or 

the second ALJ’s analysis of the VA disability determination, which in fact

responded to our prior panel’s concerns and complied with its instructions. 

Responsive to the prior panel’s first instruction, the second ALJ explained how she 
9 

had “independently weighed all of the evidence, including the evidence from the 

claimant’s VA doctors, and arrived at a different conclusion than the VA did.” That 

different conclusion arose not simply because the Social Security evidentiary 

standard is more demanding but because of an “inconsistency between the objective 

findings in the claimant’s treatment record and the subjective asserted degree of 

limitation.” The ALJ on remand then drilled down into a list of specifics showing

that “objective medical evidence as a whole” is inconsistent with the VA’s 

conclusion that Schiaffino is “unable to perform sufficient basic tasks to perform 

any work at all.” 

The ALJ also, in response to our prior panel’s instructions, explained how 

Schiaffino’s diverse and demanding leisure activities are inconsistent with his 

“asserted extreme level of limitation.” The ALJ reviewed “most exams performed 

since the claimant’s alleged onset date,” which other parts of the ALJ’s decision 

make clear included review of medical treatment notes and exams that postdate 

remand of the case. And she concluded from them that Schiaffino, the VA’s 

disability determination notwithstanding, had “had an alert and oriented mental state, 

cooperative demeanor, good eye contact, a linear and goal-directed thought process, 

grossly intact cognition, normal speech, normal psychomotor activity, fair insight 

and judgment, and no perceptual abnormalities.” The ALJ on remand then discussed 

how Schiaffino’s diverse leisure activities “furthermore” provide concrete 
10 

illustrations of how those residual functional capacities manifest themselves in his 

life since he filed for benefits. 

Schiaffino’s final merits argument—that the ALJ’s decision lacks substantial 

evidence in support of her RFC calculation—is derivative and duplicative of his 

arguments about how the ALJ considered and weighed the medical opinions. It fails

in tandem with those arguments as discussed above. Similarly, because we reject 

Schiaffino’s other arguments, we necessarily reject his argument that we should 

remand to the ALJ with instructions to award him the SSDI benefits he seeks.

We therefore AFFIRM the district court and DENY Schiaffino’s request for 

an immediate award of disability benefits.
Schiaffino v. Kijakazi, No. 22-35288

Paez, J., dissenting:

I respectfully dissent. Because the ALJ’s decision is inconsistent with our 

precedent and with the specific law of this case, I would reverse and remand for 

further proceedings before the ALJ. There are two critical reasons, which I discuss 

below, why I cannot join the majority’s decision to affirm. 

First, I would remand because the ALJ failed to take into account the 

limitations caused by Schiaffino’s obsessive compulsive disorder (“OCD”) in the 

RFC analysis. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (quoting 

SSAR 96-8p, 61 Fed. Reg. 34474, 34477 (July 2, 1996)) (“[I]n assessing RFC, the 

adjudicator must consider limitations and restrictions imposed by all of an 

individual’s impairments, even those that are not ‘severe.’”). Although the 

majority argues that this failure did not affect the ALJ’s overall RFC assessment, I 

do not agree with that reading of the record. It is uncontroverted that Schiaffino’s 

OCD symptoms led him to wash his hands 30 or 40 times a day, including every 

time he touched a doorknob, opened a drawer, or touched something someone else 

had touched. This affliction caused problems at Schiaffino’s last job because he 

had to take such frequent breaks. At the administrative hearing, the vocational 

expert agreed that Schiaffino’s handwashing would impact his ability to “sustain a 

FILED

MAY 1 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS 
competitive job,” including the jobs that she claimed were consistent with his 

limitations. 

The ALJ’s decision does not address or acknowledge the problems caused by 

Schiaffino’s frequent handwashing after concluding that this limitation was not 

severe. Instead, the ALJ claimed that Schiaffino’s ability to “take care of his own 

personal hygiene without reminders” cut against his asserted degree of limitation. 

Without providing any reasons to discount Schiaffino’s OCD symptoms, these 

symptoms should have been considered in the RFC assessment. See Buck, 869 

F.3d at 1049; Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (quoting 

SSAR 96-8p, 61 Fed. Reg. at 34478) (“The RFC assessment must ‘[c]ontain a 

thorough discussion and analysis of the objective medical and other evidence, 

including the individual’s complaints of pain and other symptoms.’”) 

Second, I would remand because the ALJ failed to heed the instructions that 

we outlined the last time this case was before us. See Schiaffino v. Saul (Schiaffino 

I), 799 Fed. App’x 473 (9th Cir. 2020). In particular, the ALJ again improperly 

discounted the VA’s disability determination by relying on the very same activities 

we explained were “not ‘persuasive, specific, valid reasons for’ discounting the VA 

disability rating,” id. at 477 (quoting McCartey v. Massanari, 298 F.3d 1072, 1076 

(9th Cir. 2002), because “they do not show capacities transferrable to a work 
setting.” Id. at 476. These activities include the Disneyland trip, shooting a 

weapon, and other solitary activities. See id. at 477.

Contrary to the majority’s suggestion, the ALJ did not rely on the additional 

medical records when she discounted the VA’s disability determination. Instead, 

the ALJ ignored the VA’s disability finding because the VA’s regulations “resolve 

reasonable doubt in the claimant’s favor, . . . which the SSA does not do.” But 

there is no indication in the record that the VA found Schiaffino’s application for 

benefits to be a close case and thus resolved all doubt in his favor. The fact that the 

Social Security regulations are different than the VA’s regulations does not 

constitute a “persuasive, specific, valid reason” to discount the VA’s disability 

determination and is not an appropriate basis for an ALJ to ignore the “great 

weight” that must be given to that determination. See McCartey, 298 F.3d at 1076. 

As we said in our prior disposition, these “errors are not harmless.” 

Schiaffino I, 799 Fed. App’x at 477. “The ALJ’s assessment of Schiaffino’s 

residual functional capacity . . . may well change once” his limitations are properly 

considered and “the VA’s disability determination is given proper weight.” Id. 

Accordingly, I would reverse and remand for further proceedings.