NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NELLIE J. PEEBLES, 

Plaintiff-Appellant, 

 v. 

KILOLO KIJAKAZI, Acting Commissioner 

of Social Security, 

Defendant-Appellee.

No. 22-35841 

D.C. No. 3:21-cv-05892-SKV 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Sarah Kate Vaughan, Magistrate Judge, Presiding

Submitted August 25, 2023**

Portland, Oregon

Before: BENNETT, VANDYKE, and H.A. THOMAS, Circuit Judges.

Nellie Peebles appeals the district court’s order affirming an Administrative 

Law Judge’s (ALJ) denial of her claim for Social Security disability benefits. We 

have jurisdiction under 28 U.S.C. § 1291. We review the district court’s decision 

* 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

AUG 29 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

de novo and may only overturn the ALJ’s decision if it is not supported by 

substantial evidence or based on legal error. See Luther v. Berryhill, 891 F.3d 872, 

875 (9th Cir. 2018).

1. The ALJ found persuasive the opinions of Dr. Linda Lindman and Dr. 

Sushil Sethi and found not persuasive the medical findings from state agency 

consultants Dr. Eugene Kester and Dr. Howard Platter. Under the applicable 

regulations, the agency is only required to articulate “how persuasive it finds all of 

the medical opinions from each doctor or other source, and explain how it 

considered the supportability and consistency factors in reaching th[o]se findings.” 

Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (cleaned up); see 20 C.F.R. 

§ 404.1520c(b). Substantial evidence supports the ALJ’s conclusion that the 

opinions of Dr. Lindman and Dr. Sethi were “consistent with the majority of the 

medical record, which did not reflect significant limitations in functioning.”1

Peebles provides a list of medical providers whose clinical findings she argues are 

inconsistent with the opinions of Dr. Lindman and Dr. Sethi. But she does not 

explain what portions of the findings are inconsistent, and we do not identify any 

inconsistencies.

1 Peebles argues for the first time in her reply brief that the opinions lacked 

supportability, but arguments raised for the first time in a reply brief are forfeited. 

Vasquez v. Rackauckas, 734 F.3d 1025, 1054 (9th Cir. 2013) (“Because we do not 

consider issues raised for the first time in reply briefs, we deem this late-raised 

argument forfeited.”).
3 

Substantial evidence also supports the ALJ’s conclusion that the findings 

from Dr. Kester and Dr. Platter were “not consistent with the current medical 

records,” including the medical opinions of Dr. Lindman and Dr. Sethi. Although 

Peebles argues that the findings from Dr. Kester and Dr. Platter were “more 

consistent” with the record than other findings the ALJ found persuasive, her 

argument misconstrues the relevant standard of review. “Where evidence is 

susceptible to more than one rational interpretation, it is the ALJ’s conclusion that 

must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

2. Substantial evidence supports the ALJ’s discounting of Peebles’s 

testimony regarding the severity and extent of her limitations. “When objective 

medical evidence in the record is inconsistent with the claimant’s subjective 

testimony,” the ALJ may “weigh it as undercutting such testimony.” Smartt v. 

Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022). But the ALJ must offer “‘specific, 

clear, and convincing reasons for doing so.’” Id. at 494 (quoting Garrison v. 

Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). The ALJ here reasonably 

contrasted Peebles’s stated use of assistive devices for mobility with the lack of 

objective medical evidence that such devices were prescribed or otherwise 

medically necessary. Additionally, Peebles “alleged an inability to perform work 

activity due to impaired vision,” but, as the ALJ noted, had already undergone

surgery for her glaucoma, “did not wear glasses,” and “watched television.” 
4 

Finally, Peebles’s lack of visits to a mental health counselor supports the ALJ’s 

conclusion that she “did not experience significant [mental health] limitations.” 

Ultimately, “the ALJ’s rationale is clear enough that it has the power to 

convince.”2Id. at 499.

3. Because the “lay witness testimony” of Peebles’s husband did “not 

describe any limitations not already described by the claimant,” the ALJ did not 

commit prejudicial error by discounting it. Molina, 674 F.3d at 1117. The ALJ’s 

“well-supported reasons for rejecting” Peebles’s testimony “apply equally well to 

the lay witness testimony.” Id.

4. Finally, because substantial evidence supports the ALJ’s discounting of 

“the limitations described by Peebles and Peebles[’s husband],” substantial 

evidence also supports the ALJ’s residual functional capacity assessment.

AFFIRMED.

2

It is true that, as Peebles argues, the ALJ was required to “mak[e] specific 

findings” relating to the question whether she engages in daily activities involving 

skills that could be transferred to the workplace. Burch, 400 F.3d at 681. Even 

assuming that the ALJ failed to do so here, any error was harmless because the 

ALJ provided other valid reasons to discount Peebles’s testimony. See Molina v. 

Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), superseded on other grounds by 20 

C.F.R. § 404.1502(a).