NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MISTI

- JO SHAWVER,

Plaintiff

- Appellant,

v.

KILOLO KIJAKAZI,

Defendant

- Appellee. No. 22

- 35879

D.C. No.

4:22

- cv

- 0 5005

- TOR

MEMORANDUM *

Appeal from the United States District Court

for the Eastern District of Washington

Thomas O. Rice, District Judge, Presiding

Submitted October 6, 2023 **

Seattle, Washington

Before: WARDLAW and M. SMITH, Circuit Judges, and MATSUMOTO, ***

District Judge.

Misti

- Jo Shawver (“Shawver”) appeals the District Court’s order affirming

an administrative law judge’s (“ALJ”) denial of her application for supplemental

* 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 Kiyo A. Matsumoto, United States District Judge for

the Eastern District of New York, sitting by designation. 

# FILED

OCT 13 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 22

- 35879

security income. “We review a district court’s order affirming the Commissioner’s

denial of benefits de novo.” Hill v. Astrue , 698 F.3d 1153, 1158 (9th Cir. 2012).

“We may set aside a denial of benefits only if it is not supported by substantial

evidence or is based on legal error.” Bray v. Comm’r of Soc. Sec. Admin.

, 554 F.3d

1219, 1222 (9th Cir. 2009) (internal quotation marks omitted).

We assume the parties’ familiarity with the facts and do not recount them

here. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the decision

of the District Court.

1. The ALJ applied the correct legal standard in evaluating, and ultimately

discounting, the medical opinions and reports provided by Richard Meadows,

M.D.; Tae

- Im Moon, PhD; Erin Darlington, PhD; Jennifer Fordmeir, ARNP;

Daniel Neims, PsyD; Brent Packer, M.D.; David T. Morgan, PhD; and Luci

Carstens, PhD. Although “[g] enerally, a treating physician’s opinion carries more

weight than” an examining or non

- examining physician’s opinion, Holohan v.

Massanari , 246 F.3d 1195, 1202 (9th Cir. 2001), where a treating physician’s

opinion is contradicted by evidence in the record, the ALJ may reject the opinion

“by providing specific and legitimate reasons that are supported by substantial

evidence.” Ghanim v. Colvin , 763 F.3d 1154, 1161 (9th Cir. 2014) (internal

quotation marks omitted).

Here, after reviewing the medical opinion e vidence and Shawver’s3 22

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diagnostic and laboratory results, the ALJ concluded that treating physician Dr.

Meadows’s opinions were largely based on Shawver’s own reported statements of

her symptoms, including the statement that Shawver’s anxiety was “so bad that she

develops PTSD

- like symptoms just from doing employment searches.” See

Ghanim , 763 F.3d at 1162 (“If a treating provider’s opinions are based ‘to a large

extent’ on an applicant’s self

- reports . . . the ALJ may discount the treating

provider’s opinion.”). The ALJ also determined that Dr. Meadows’s opinions

were contradicted by other evidence in the record.

Moreover, the ALJ found that the above

- mentioned non

- treating physicians

re lied in large part on Shawver’s self

- reported symptoms. The ALJ also found that

their opinions conflicted with those of other medical professionals, which the ALJ

found more reliable. Therefore, because the ALJ provided specific and legitimate

reasons for assigning reduced weight to the opinions of Dr. Meadows and the other

medical sources that Shawver cites, the ALJ’s findings regarding the medical

opinion evidence are supported by substantial evidence.

2. Substantial evidence supports the ALJ’s d ecision to “reject [Shawver’s]

testimony about the severity of her symptoms” because the ALJ “offer[ed]

specific, clear, and convincing reasons for doing so.” Smartt v. Kijakazi

, 53 F.4th

489, 494 (9th Cir. 2022) (internal quotation marks omitted). The ALJ found that

Shawver’s subjective symptom testimony was inconsistent with the weight of the4 22

- 35879

evidence in the record. In particular, the ALJ pointed to Shawver’s statements

recounting her enjoyment of activities that require men tal and physical exertion,

such as biking, planting flowers, and socializing with friends and family, which

suggest that her impairments do not rise to a level of severity that would render her

unable to maintain any employment. See Bunnell v. Sullivan , 94 7 F.2d 341, 346

(9th Cir. 1991) (“[I]f the claimant engages in numerous daily activities involving

skills that could be transferred to the workplace, an adjudicator may discredit the

claimant’s allegations

....... ”)

The ALJ also properly considered Shawver’s failure to seek treatment with

respect to her anxiety and migraines prior to her application for disability benefits,

and her refusal to take prescribed medications and attend counseling. See Burch v.

Barnhart , 400 F.3d 676, 681 (9th Cir. 2005) ( “The ALJ is permitted to consider

lack of treatment in [her] credibility determination.”). Finally, the ALJ discussed

the medical opinions of multiple physicians that confirm that Shawver’s HIV was

under control during the relevant time period, as well as medical opinions that

conflict with Shawver’s testimony about the severity and impact of her mental

impairments.

3. At step three of the five

- step sequential analysis under 20 C.F.R.

§ 404.1520(a)(4), substantial evidence supports the ALJ’s finding that Shawver’s

impairments do not meet or equal the criteria for any listings and thus were not per5 22

- 35879

se disabling. The ALJ properly evaluated the record evidence, including as it

relates to Shawver’s anxiety, depression, memory loss, difficulty concentrating,

diarrhea, and migraines/headaches. The ALJ assessed the credibility of the

medical opinions cited by Shawver, and ultimately determined, based on

substantial evidence in the record, that Shawver’s symptoms did not meet or equal

th e criteria in any of the four relevant listings.

4. Because the ALJ’s determination of Shawver’s residual functional capacity

was supported by substantial evidence and free from legal error, and because the

question posed to the vocational expert properly acc ounted for Shawver’s age,

education, work experience, and residual functional capacity, the hypothetical

posed to the vocational expert properly reflected Shawver’s limitations. See

Stubbs

- Danielson v. Astrue , 539 F.3d 1169, 1175 (9th Cir. 2008) (finding t hat the

claimant’s argument that “that the ALJ’s hypothetical was incomplete . . . simply

restates her argument that the ALJ’s [residual functional capacity] finding did not

account for all her limitations”). Therefore, because the vocational expert’s

test imony demonstrated that Shawver had the ability to perform work that exists in

significant numbers in the national economy, substantial evidence supports the

ALJ’s step

- five determination that Shawver is not disabled within the meaning of

the Social Security Act.

AFFIRMED.