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Benjamin v. Berryhill, 708 Fed. App’x 478 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of supplemental security income. Plaintiff argued that the ALJ erred at Step 2 in not finding her depression and anxiety a severe impairment and failing to incorporate mental limitations in the RFC finding.

The court disagreed. The court found “the Commissioner’s determination at step two in the sequential evaluation process is supported by substantial evidence” — the ALJ properly relied on the absence of medical records to conclude that the Plaintiff’s depression and anxiety were not severe, none of the treating sources opined that the Plaintiff had more than minimal limitations on her ability to work, the ALJ had a “germane reason” for giving little weight to a Licensed Clinical Social Worker, “because it was inconsistent with the underlying treatment notes”. Likewise, the court found substantial evidence supported the Commissioner’s determination at step three that Plaintiff’s depression and anxiety did not meet or equal a listed impairment (Listing 12.06). Moreover, substantial evidence supported the Commissioner’s determination that Plaintiff’s RFC “sufficiently incorporated her mild mental limitations in concentration, persistence, or pace” and that the ALJ’s hypothetical to the vocational expert sufficiently incorporated Plaintiff’s mild mental limitations in concentration, persistence, or pace. Finally, remand was not warranted based on new medical evidence — this evidence did not change the fact that substantial evidence supported the Commissioner’s decision and was not material because there was not a “reasonable possibility” that it would have altered the Commissioner’s decision. The court affirmed the district court’s judgment.

Jarvis v. Berryhill, 722 Fed. App’x 616 (9th Cir. 2018).

Plaintiff brought action for review of the denial, by the Commissioner of Social Security, of his applications for disability insurance and supplemental security income disability benefits. The district court affirmed. Plaintiff argued the ALJ erred in evaluating the opinions of record.

The court agreed. The court held that the ALJ’s failure to evaluate a treating physician’s opinion was reversible error. This was not cured by the ALJ’s favoring of the opinion of the examining physician. This neglects the deference entitled to a treating opinion. See Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014); 20 C.F.R. § 404.1527(c)(2). An ALJ must present “specific and legitimate” reasons for discounting or rejecting a treating opinion. Likewise, the ALJ erred in failing to evaluate the opinion of a consultative examiner. The court held “[A]n ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.”). Garrison at 1012-13. Further, this could not be harmless as the opinion noted Plaintiff “was seriously impaired by PTSD and needed a year of vigorous psychiatric treatment before he “might” be able to return to work in the daytime.” Next, the court found that the ALJ erred in addressing the opinion another consultative examiner. First, the ALJ’s finding that Plaintiff “had a fair (rather than poor) ability to maintain regular attendance” was not supported by substantial evidence. The ALJ made no mention of the examiner’s opinion that Plaintiff’s mental health symptoms may be chronic in nature and that his condition may not abate on its own within a year. Nevertheless, the ALJ concluded he had a “fair” ability to maintain regular attendance at work. By failing to give legally adequate reasons for rejecting part of the examining opinion, the ALJ erred. See Garrison, 759 F.3d at 1012 (an ALJ is required to explain why her interpretation of the evidence, rather than the doctor’s, is correct). Finally, the ALJ erred in rejecting two other examining opinions based on an assumption about the influence of Plaintiff’s alcohol dependency on his mental limitations. The court concluded, “[n]othing in the record suggests that either [examiners’] observations and conclusions about [Plaintiff’s] limitations were attributable more to his alcohol dependency…than to his devolving mental state. Even assuming [Plaintiff’s] mental functioning was influenced by substance abuse, there is no indication that [the examiner] relied on subjective reports of his impairments over her own clinical findings made during an extended examination. See Regennitter v. Comm’r Soc. Sec. Admin., 166 F.3d 1294, 1300 (9th Cir. 1999) (holding that substantial evidence did not support ALJ’s finding that examining psychologists took claimant’s “statements at face value” where psychologists’ reports did not contain “any indication that [the claimant] was malingering or deceptive”); see also Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001) (“In sum, the ALJ appears to have relied on her doubts about [the claimant’s] overall credibility to reject the entirety of [the examining psychologist’s] report, including portions that [the psychologist] deemed to be reliable.”). The court reversed and remanded. The court affirmed the district court’s judgment.

Shoemaker v. Berryhill, 710 Fed. App’x 750 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for disability insurance benefits. Plaintiff argued that the ALJ erred by; (1) affording only “some weight” to the opinion of the examining psychologist; and (2) in making an adversity credibility assessment of his testimony.

The court disagreed. The court found the ALJ provided “specific and legitimate reasons” to reject the opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). First, the ALJ noted that the prepared form filled out by the doctor provided only options that correlate to no limitations, marked limitations, or extreme limitations. Because the form was limiting, the ALJ instead credited the narrative evaluation. Second, the court noted the ALJ explained that the doctor had provided no explanation for the discrepancy between a second evaluation where Plaintiff was described as “essentially unchanged” and a lower GAF score. However, the court noted that the “ALJ gave three additional reasons that are not specific or legitimate. First, the ALJ noted [his] failure to obtain psychotherapy or take his psychotropic medications. Aside from whether these observations are supported by substantial evidence, they are not a specific or legitimate reason to question [the doctor’s] opinion. Second, the ALJ stated that [the doctor] did not attribute any of [Plaintiff’s] cognitive deficits to marijuana, while [another doctor] noted that it was unclear how much, if any, of [Plaintiff’s] anxiety was related to marijuana use. This reason is not specific or legitimate because these opinions are not inconsistent. Third, the ALJ [the doctor’s] second opinion to be overall “less impartial and more apologetic,” which is not specific or legitimate. However, these errors are harmless because the ALJ provided two legally sufficient reasons supported by substantial evidence. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).

The court likewise rejected Plaintiff’s argument that his testimony with respect to his limitations should have been fully credited. The court noted the ALJ identified specific limitation which were supported and included those in the RFC. Because “the ALJ’s interpretation of [Plaintiff’s] testimony is rational, the ALJ’s decision must be upheld”. The court affirmed the district court’s judgment.

Degen v. Berryhill, 725 Fed. App’x 550 (9th Cir. 2018).

Plaintiff, who is homeless and began seeking treatment after filing for disability, appealed the district court’s judgment affirming the Commissioner’s denial of his application for social security benefits. Plaintiff argued that the ALJ erred in finding his testimony not entirely credible and affording less than significant weight to his treating psychiatrist’s opinion.

The court disagreed. First, the court noted that the ALJ properly considered Plaintiff’s work history, reports of daily activities, and improvement after receiving treatment which undercut his claims. Those factors were properly cited as clear [ and convincing reasons to question portions of the testimony. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (“[A]n ALJ may weigh inconsistencies between the claimant’s testimony and his or her conduct, daily activities, and work record, among other factors.”). Next, the court found that the ALJ provided “specific, legitimate reasons” for affording less than significant weight to the treating psychiatrist’s questionnaire responses. The ALJ accepted the findings in the psychiatrist’s treatment notes regarding substantial improvement while on medication. The ALJ rejected the treating psychiatrist’s checkbox questionnaire responses as conclusory, inconsistent with the treatment notes, and not supported by objective findings. The ALJ’s conclusions were supported by substantial evidence, and his reasoning did not constitute reversible error. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (affirming ALJ’s rejection of treating physician’s opinion because it was conclusory, in checklist form, and not supported by objective evidence). The court affirmed the district court’s judgment.

Kelly v. Berryhill, 727 Fed. App’x 282 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits. Plaintiff argued that the ALJ erred in rejecting the opinion of one examining psychologist and affording more weight to that of second examining psychologist.

The court disagreed. Because there was a conflict the ALJ was required to proffer specific and legitimate reasons supported by substantial evidence for discounting it. See Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). The court found the ALJ met this standard by pointing to evidence indicating the one opinion appeared more speculative in nature and that the opinion was contradicted by Plaintiff’s work history. The ALJ explained the opinion he credited was a full intellectual assessment while the one he rejected was not based on clinical findings. See Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). In addition, the ALJ reasonably construed Plaintiff’s job history, which included positions entailing simple tasks, as contradicting the opinion that she could not handle simple job duties. See Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008). Plaintiff’s argument that the ALJ relied more upon the opinion of a non-examining consultant was unavailing as the ALJ found this opinion consistent with other evidence such as the examining opinion and Plaintiff’s work history. “The contrary opinion of a non-examining medical expert does not alone constitute a specific, legitimate reason for rejecting a[n] . . . examining physician’s opinion, it may constitute substantial evidence when it is consistent with other independent evidence in the record.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Plaintiff’s contention that the ALJ erred by interpreting her statement that she had left her last position because she “could not do the job” to mean she left for reasons unrelated to her health issues was without merit. The court noted, “[w]hen filling out her disability report and answering the question of why she had stopped working, [Plaintiff] did not select the answer that she had done so because of her medical conditions, but rather indicated she had stopped “because of other reasons.” The Court will uphold the ALJ’s reasonable interpretation of this evidence. See Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). The court affirmed the district court’s judgment.

George v. Berryhill, 727 Fed. App’x 287 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for disability insurance benefits. Plaintiff argued that: (1) the ALJ erred by affording more weight to examining psychologist opinion and discounting the treating psychologist opinion; (2) erred in discounting his testimony; and (3) erred by failing to call a vocational expert and relying upon the Medical-Vocational Guidelines (“Grids”) at Step 5 due to his limitation to simple work and limited public contact.

The court disagreed. First, the court noted Plaintiff argued that his treating psychologist’s opinion was uncontradicted in part but that he had waived this argument by not raising it in district court. Therefore, it need not consider this argument on appeal. See Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (per curiam). Nevertheless, the court found that since the treating opinion actually was contradicted in the record ALJ had provided “specific and legitimate reasons” for rejecting the opinion. The ALJ noted inconsistences between the opinion and Plaintiff’s daily activities, the opinion’s reliance on subjective reports, and the fact that the examiner had performed a detailed formal evaluation. These reasons are legally valid and supported by substantial evidence in the record. See Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999); Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012); Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995). Likewise, the ALJ had offered valid reasons for discounting Plaintiff’s testimony. The courted noted the ALJ cited the fact that the objective medical evidence did not support the testimony, the inconsistencies between the testimony and the medical opinions in the record, inconsistencies between alleged symptoms and reported daily activities, and the effectiveness of the prescribed treatments.

Finally, the court held the ALJ did not err in failing to call a vocational expert. Despite Plaintiff’s mental limitations the Court found the Grids encompass “only unskilled work, which by definition involves only simple tasks and usually does not entail extensive personal contact. See 20 C.F.R. § 404.1568(a); Terry v. Sullivan, 903 F.2d 1273, 1276-77 (9th Cir. 1990).” Consequently, the court found these limitations would not significantly affect the base of unskilled work he could perform.

Plaintiff alos contended that multiple nonexertional impairments may substantially reduce the number of jobs available, even if those impairments considered singly would not. He argued restricting him to positions that involve little contact with supervisors or coworkers would require him to take positions that require independence and complex decision-making. The court rejected this argument finding the Grids account for his nonexertional limitations. “Because the Grids only include unskilled jobs, these positions are limited to simple duties and do not necessitate complex decision-making because, by definition, they require “little or no judgment.” See 20 C.F.R. § 404.1568(a). Thus, the Grids provide substantial evidentiary support for the ALJ’s Step Five findings.” The court affirmed the district court’s judgment.

Alvares v. Berryhill, 716 Fed. App’x 705 (9th Cir. 2018)

A pro se Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for a period of disability and disability insurance benefits.

The court held it was not proper to remand to the agency to consider new evidence because Plaintiff made no showing that this new evidence, particularly the letters from his treating providers, was material to his case or that there was good cause for his failure to incorporate it into the administrative record. See Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990) (quoting 42 U.S.C. § 405(g)). The court affirmed the district court’s judgment.

Daley v. Berryhill, 728 Fed. App’x 691 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits. Plaintiff argued that the ALJ erred in finding his testimony not entirely credible and little weight to his treating physician’s opinion.
The court disagreed. The court found the ALJ cited specific, clear, and convincing reasons for discounting Plaintiff’s statements. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The ALJ cited inconsistencies in Plaintiff’s testimony concerning his reasons for ceasing work, medical evidence and medical testimony that contradicted his allegations, and reports of his activities that controverted his alleged limitations. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 887 (9th Cir. 2006); Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012). Plaintiff contended that his daily activities were not sustained over an eight-hour period, but the court found this argument lacks merit. The court stated, “[t]he relevant inquiry is not whether the claimant could sustain the activities for eight hours, but rather whether these daily activities were inconsistent with the alleged symptoms. [Plaintiff’s] reported activities, such as walking his dogs, pulling weeds, and operating a chainsaw, were inconsistent with the limitations [he] alleged, including that he could not stand for more than ten minutes, walk for more than fifteen minutes, and grasp or hold objects at all.

Further, the court found the ALJ did not err in not crediting the VA’s disability determination. The ALJ reasoned that the VA “did not attempt to identify the degree of limitation [his] impairments caused and did not utilize vocational evidence to establish work was unavailable for someone with [his] limitations. To the extent that these two reasons amount to pointing out differences in the VA and SSA disability programs that are true in every case, these reasons are not specific and valid rationale that justify discounting the VA’s disability finding. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009). However, the other reasons that the ALJ provided that were specific to [his] VA disability finding, such as the fact that his diabetes symptoms had subsided or were well controlled, more recent medical evidence contradicted the VA’s disability determination, and [his] activity level was inconsistent with the VA’s decision, amount to persuasive, specific, and valid reasons, rendering any error harmless.”

Finally, the court found that the ALJ properly discounted the opinion of Plaintiff’s treating physician because it was inconsistent with objective medical evidence and medical opinion evidence in the record, unsupported by independent medical findings, and conflicted with Plaintiff’s own testimony. The court held that “[w]hile ALJs usually “afford greater weight to a treating physician’s opinion,” the ALJ may disregard it when the opinion is controverted by other medical opinions in the record by citing specific, legitimate reasons based on substantial evidence, which the ALJ did in this case. See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).” The court affirmed the district court’s judgment.

Holden v. Berryhill, 731 Fed. App’x 606 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for supplemental security income. Plaintiff argued that the ALJ erred in evaluating the opinion of the testifying medical expert. The expert opined that Plaintiff medically equaled part C of listing 12.04 for affective disorders and that she had marked limitations in concentration, persistence, and pace. He believed that Plaintiff met listing 12.04, part C.2., indicating that she had a residual disease process that had resulted in such marginal adjustment that a minimal increase in mental demands or change in environment would be predicted to cause episodes of decompensation. Plaintiff argued it was error to reject this opinion since the expert had the benefit of two more years of evidence. Further, Plaintiff argued that it was illogical for the ALJ to discount this opinion because it was inconsistent with the findings of the examining physicians when the ALJ did not fully accept their opinions either.

The court agreed in part. The court held the ALJ erred in assigning “little weight” to the testifying expert’s opinion that Plaintiff’s condition equaled Listing 12.04(C). In reasoning that the expert had undermined his own opinion by indicating that Plaintiff had not had any episodes of decompensation in the past, the court found the “ALJ improperly conflated the requirements of the first and second clauses of Listing 12.04(C). While the first clause of Listing 12.04(C) requires evidence of repeated episodes of decompensation, the second clause requires only a prediction of decompensation occurring in the future and does not mention evidence of decompensation in the past. See 20 C.F.R. Part 404, Subpt. P, App. 1, 12.04(C) (2014); Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1084 (9th Cir. 2007) (“As a general interpretive principle, the plain meaning of a regulation governs.” (citation and internal quotation marks omitted)). Because the ALJ erroneously incorporated the requirements of the first clause of Listing 12.04(C) when determining whether Plaintiff fulfilled the criteria in the second clause of the listing, the ALJ misapplied the regulation.”

However, the ALJ did not err by discounting the opinion that Plaintiff suffers from marked limitation in concentration, persistence, and pace. The ALJ supported this conclusion by citing to substantial evidence in the record, namely the other opinions and exam notes that Plaintiff’s concentration, persistence, and pace were within normal limits. “Even if this evidence lends itself to more than one interpretation, we will uphold the ALJ’s rational interpretation, see Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9thCir. 2008), and defer to the ALJ’s resolution of ambiguities in the medical evidence, see Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008).”

Nevertheless, under the credit as true doctrine the court found that the ALJ proffered insufficient reasons for rejecting the medical expert’s opinion that increases in mental demands or changes in the environment would likely cause Plaintiff to decompensate, as required under Listing 12.04(C); and if this evidence were credited as true, the ALJ would be required to find Plaintiff disabled on remand, as she would fulfill the criteria of Listing 12.04(C). Therefore, the court reversed and remanded for an immediate award of benefits.

Noah v. Berryhill, 732 Fed. App’x 520 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance and supplemental security income. Plaintiff argued that the ALJ erred in failing to find that Plaintiff’s impairments did not meet or equal Listing 12.07 for somatoform disorders. Although the ALJ found Plaintiff did not meet any of the Paragraph B criteria under Listing 12.07, Plaintiff argued the ALJ did not properly analyze her physical and mental impairments in combination and that, contrary to the ALJ’s finding, her limitations on her daily living activities rise to the “marked” level.

The court disagreed. The court held that Plaintiff “advocates for an alternative interpretation of the evidence. Because the ALJ supported her conclusions concerning [her] level of limitation with substantial evidence and provided a rational interpretation of the record, we will uphold the ALJ’s decision. See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).” The court noted that Plaintiff primarily relied upon her testimony to establish her argument. However, “this is precisely the type of argument this court has rejected as inadequate to establish equivalency to a listed impairment. A claimant cannot illustrate equivalency by “showing that the overall functional impact of her . . . impairments is as severe as that of a listed impairment.” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citation and internal quotation marks omitted). Instead, a claimant shows equivalency by “present[ing] medical findings equal in severity to all the criteria for the one most similar listed impairment.” Id. (citation and internal quotation marks omitted); see also Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). [Plaintiff] does not proffer the requisite specific explanation as to how the medical evidence shows her impairments are medically equivalent to Listing 12.07.”

Further, the court held that the ALJ had properly evaluated Plaintiff’s credibility. The court observed the “ALJ applied the requisite two-step framework and cited specific, clear, and convincing reasons for discounting [Plaintiff’s] statements. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The ALJ cited inconsistencies in [her] testimony, contradictory objective medical evidence, and conflicting medical testimony. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 887 (9th Cir. 2006).

The court noted that Plaintiff specific objections were without merit. Plaintiff contended “it was improper for the ALJ to “single out ‘a few periods of temporary well-being . . .’ in an attempt to discredit her,” the record indicates [Plaintiff’s] treatment providers made similar assessments that [she] was in no acute distress, appeared well nourished, and displayed a normal mood over a series of appointments spanning several years. Because the ALJ’s interpretation of the record is reasonable and supported by substantial evidence, the ALJ did not err. Likewise, although Plaintiff took issue with the ALJ’s reliance on her failure to quit smoking as a reason to discount her testimony, the court held the ALJ proffered additional reasons supported by the record for discounting Noah’s testimony. Thus this amounts to harmless error.

Finally, Plaintiff challenged the ALJ’s comment that she “is a single mother of a child diagnosed with significant mental health problems” who “feels uncomfortable leaving her son alone” and “has significant motive to remain at home.” Plaintiff argued this amounts to “unsupported speculation” about her motivation for seeking disability benefits and is not supported by the record. However, the court found the ALJ’s statement was not included with the portion of the ALJ’s decision analyzing her testimony. “Rather, the ALJ was recognizing the “competing interests in [her] life are understandably difficult,” while nevertheless concluding that “it does not appear that her severe physical or mental problems would reasonably preclude her from performing a range of unskilled light work” within the limitations included in her RFC. As a result, this argument does not address the grounds upon which the ALJ actually discounted [Plaintiff’s] testimony. The court affirmed the district court’s judgment.

Pacheco v. Berryhill, 733 Fed. App’x 356 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits. Plaintiff argued that the ALJ erred in evaluating the medical evidence; assessing Plaintiff’s credibility; evaluating the lay witness testimony; and determining the RFC and that she could perform other work at step five.

The court disagreed. The court noted while Plaintiff asserted error in evaluating the medical opinions “she does not identify any specific errors the ALJ made when assessing this evidence.” Similarly, although [she] asserts the ALJ erred by not acknowledging Dr. Lawton is a rheumatologist, she does not indicate any way in which the ALJ failed to support his decision with substantial evidence or any harmful error that influenced the ultimate nondisability determination.” Similarly the court found Plaintiff’s argument that the ALJ erred in the evaluation of the other opinions likewise lacked merit and Plaintiff established no harmful error in the ALJ’s evaluation of them

Second the court held the ALJ applied the requisite two-step framework and cited specific, clear, and convincing reasons for discounting Plaintiff’s statements. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The ALJ cited contradictory medical evidence, evidence that her symptoms were well controlled with medication, and statements she had made contradicting her claims of debilitating impairment. See Warre v. Comm’r of the Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).

Next, the court found the ALJ properly discounted the lay witness opinion because it was largely based on Plaintiff’s own complaints, which the ALJ discredited, and inconsistent with the medical evidence. Finally, since the court found there no error in the evaluation of the medical evidence the RFC and resulting step-five finding are supported by substantial evidence and not in error. The court affirmed the district court’s judgment.

Kawelo v. Berryhill, 732 Fed. App’x 584 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for disability insurance benefits. Plaintiff argued that the ALJ erred in determining that her PRW was as a loan officer and bookkeeper, rather than as a customer service representative. Relying upon Valencia v. Heckler, 751 F.2d 1082 (9th Cir. 1985) she argued that her PRW cannot be reclassified from the one job she purportedly performed — customer service representative — into multiple jobs, thereby labeling all of these jobs “past work,” and finding that she can return to her past work because she can perform some, but not all of these jobs.

The court agreed and disagreed in part but found any error harmless. The court found that Plaintiff’s past work as a bookkeeper was outside the 15-year regulatory period. The record indicated that Plaintiff had performed this job in 1969. The court noted 20 C.F.R. § 404.1565(a) says: We do not usually consider that work you did 15 years or more before the time we are deciding whether you are disabled.” As to her work as a loan officer, the court found the record “replete” with “reliable substantial relevant evidence from her testimony that amply supports the ALJ’s finding.” Plaintiff’s attempt to argue this was part of a composite job was unavailing based upon the record. The VE did not testify that her past work at the bank constituted a composite job. His testimony is unrebutted. Plaintiff was represented by counsel at the hearing, did not question or otherwise object to the VE’s testimony based upon the DOT’s classification of her PRW. Consequently, the ALJ, relying on Plaintiff’s unrefuted testimony and the VE, rationally found that she performed three separate jobs while employed at the bank.

The court distinguished Valencia because the Ninth Circuit’s holding there is that where a job encompasses more than one DOT code, it is error for the ALJ to classify it “according to the least demanding function.” 751 F.2d at 1086. That is, in Valencia, the ALJ based the determination on a single function in an overall more taxing job. The court concluded that, to the extent Plaintiff argued that her job duties as a loan officer were merely part of her job as a customer service representative, she has not met her burden at Step 4. The court affirmed the district court’s judgment.

Calhoun v. Berryhill, 734 Fed. App’x 484 (9th Cir. 2018)

A pro se Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for supplemental security income. Plaintiff generally argued that the ALJ erred in formulating her RFC and in the evaluation of her treating physician.

The court disagreed. First the court noted that Plaintiff had waived several arguments by not raising them at the district court level. Second, the court noted that it could not consider additional documents submitted with Plaintiff’s appeal. In the Social Security context, “[c]ourts are authorized to review only the Secretary’s final decision, the evidence in the administrative transcript on which the decision was based, and the pleadings.” Russell v. Bowen, 856 F.2d 81, 84 (9th Cir. 1988).

Finally, the court found the ALJ did not err in discounting two treating opinions. The ALJ properly gave limited weight to one opinion because it was given in the context of a worker’s compensation case. Next, the ALJ properly considered that the other physician had expressed doubts concerning his earlier opinions due to viewing sub rosa tapes showing Plaintiff engaging in a wide range of activities. The court affirmed the district court’s judgment.

Sievers v. Berryhill, 734 Fed. App’x 467 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for disability insurance benefits and supplemental security income. Plaintiff primarily argued the ALJ “improperly rejected” the opinions of his treating physicians.

The court disagreed. The court found that in the first instance the treating physician could not provide a specific diagnosis and did not indicate which medical evidence he relied upon – if any – in arriving at his opinion. An ALJ “may discredit treating physicians’ opinions that are conclusory, brief, and unsupported by the record as a whole or by objective medical findings.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Further, the court found there was no need for the ALJ under to have evaluated this opinion under SSR 00-3p for Complex Regional Pain syndrome as the ruling indicates that a diagnosis of CRPS “requires the presence of complaints of persistent, intense pain that results in impaired mobility of the affected region.” The court found nothing in the information provided suggested the presence of these associated symptoms.

In the second instance, the court found no error in the evolution of a treating opinion that Plaintiff “cannot work at any job involving any hand use, including but not limited to typing, faxing, filing, scanning, copying, etc.” The court found that the ALJ properly assigned this “little weight” for “three reasons: 1) a lack of diagnostic certainty, 2) a lack of objective medical evidence or probative testing results in the record, and 3) the claimant’s evidence that he was able to use his hands in the activities of his daily living.” Moreover, the court noted, the opinion appeared to rely solely on subjective complaints. The ALJ’s partial credibility finding reflects negatively upon a symptoms-based statement about Plaintiff’s ability to work. The ALJ cited specific, clear, and convincing reasons for discounting Plaintiff’s claims. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “If a treating provider’s opinions are based to a large extent on an applicant’s self-reports and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating provider’s opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). The court found no harm in any of Plaintiff’s other assignments of error. The court affirmed the district court’s judgment.

Schalk v. Berryhill, 734 Fed. App’x 475 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for disability insurance benefits. Plaintiff argued: (1) the Appeals Council erred in rejecting new evidence submitted by him; (2) the ALJ failed to assess his RFC accurately because he improperly discounted his subjective statements, the statements of his evaluating and treating doctors and physical therapist, and the statements of his wife, brother, mother and father.

The Court disagreed. First, the court found the new evidence that Schalk submitted to the Appeals Council did not become part of the administrative record when the Appeals Council returned the evidence without considering it. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (explaining that evidence becomes part of the administrative record only when the Appeals Council considers it). Because the evidence did not relate to the period on or before the ALJ’s decision, the Appeals Council was not required to consider it. Furthermore, Plaintiff failed to establish materiality because the additional records did not offer a “reasonable possibility that the new evidence would have changed the outcome of the . . . determination.” Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984) (internal citations omitted).

Next, the court found the ALJ had offered specific and legitimate reasons for assigning little weight to the opinions. The court recognized that the ALJ’s finding that the treating orthopedist’s opinion “appear to be based” on subjective statements was speculative and “not strong” but the ALJ supported his finding by noting that the physician had treated Plaintiff just prior to the expiration of his date last insured and finding it inconsistent with other medical evidence of record. Likewise, the ALJ gave specific and legitimate reasons for rejecting the other opinions such as inconsistency with the objective medical evidence. The court noted that the ALJ’s rejection of a therapist’s opinion on the basis of that she is not an acceptable medical source was erroneous; however, the ALJ provided other reasons to reject the opinion. Finally, the court found the ALJ provided specific, clear and convincing reasons that are supported by substantial evidence for discounting Plaintiff’s testimony regarding the debilitating effects of his symptoms such as that: (1) there were inconsistencies between his subjective complaints and activities of daily living; and (2) his subjective complaints were not consistent with the medical evidence. Given that the lay witness statements were not fully credible to the extent that they were based on Plaintiff’s subjective statements, which the ALJ discounted for clear and convincing reasons any error in discounting the lay witness testimony was harmless because the lay witness testimony was similar to Plaintiff’s testimony regarding his experience of physical pain. The court affirmed the district court’s judgment.

Rawson v. Berryhill, 722 Fed. App’x 697 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for supplemental security income. Plaintiff argued that the ALJ erred in discounting the opinion of the examining psychologists; his testimony; and lay witness testimony.

The court disagreed. First, it pointed out with respect to two opinions in particular that Plaintiff had not identified any specific errors and failed to reference the medical record. With respect to the other opinions, it found the ALJ had properly offered reasonable interpretations of the opinions’ consistency with the evidence. For example, an ALJ may cite inconsistencies between a medical opinion and a claimant’s activities as grounds for rejecting the medical opinion. The court found the ALJ did so here. Likewise, the court found the ALJ applied the requisite two-step framework and cited specific, clear, and convincing reasons for discounting Plaintiff’s statements. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The ALJ pointed out conflicting statements in Plaintiff’s testimony, evidence that Plaintiff daily activities contradicted her claims of debilitating impairment, and contradictory medical evidence. Finally, it found the ALJ cited germane reasons for discounting the lay testimony, including that statements were inconsistent with clinical testing and Plaintiff’s daily activities. The court affirmed the district court’s judgment.

Brown v. Berryhill, 724 Fed. App’x 615 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for supplemental security income. Plaintiff argued generally that the ALJ erred in evaluating her and her husband’s testimony and by failing to include in the hypothetical to the vocational expert restrictions that her attorney added when questioning the vocational expert.

The court disagreed. It found the ALJ proffered specific, clear, and convincing reasons, supported by substantial evidence, for discounting portions of Plaintiff’s testimony. See Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (ALJ must provide specific, clear, and convincing reasons for rejecting the claimant’s testimony about the severity of her symptoms); see also Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (“Where evidence is susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” (citation and internal quotation marks omitted)); Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding no error where the ALJ considered inconsistencies between the claimant’s testimony and objective medical evidence as one of many reason for discounting the testimony). The Court further explained, even if the ALJ erred by discounting Plaintiff’s testimony based on her failure to seek treatment, any error was harmless because the ALJ provided other valid reasons for discounting the testimony and substantial evidence supports the ALJ’s conclusions. Likewise, the court found that even if the ALJ erred by failing to provide substantial evidentiary support for discounting lay witness testimony by her husband any error was harmless because the testimony described substantially similar limitations as Plaintiff’s own testimony.

The court found the ALJ was not bound to accept as true the restrictions presented in a hypothetical question propounded by a claimant’s counsel. The court also declined to address issues raised without specificity in her briefing. The court affirmed the district court’s judgment.

Youngblood v. Berryhill, 734 Fed. App’x 496 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for disability insurance benefits and supplemental security income.
The court affirmed. The court found Plaintiff ‘s challenge to ALJ’s assessment of opinions of treating nurse and physician was not reviewable as the Plaintiff had failed to identify information the ALJ should have considered. Second, the ALJ’s assessment of examining psychologist’s opinion was supported by substantial evidence. Next, any challenge to ALJ’s assessment of consulting physicians’ opinions was not reviewable as Plaintiff did not identify information the ALJ should have considered. The ALJ’s discounting of Plaintiff’s testimony was supported by substantial evidence as the ALJ provided specific, clear, and convincing reasons for discounting it. Likewise, the ALJ’s discounting of lay witness testimony was supported by substantial evidence because it conflicted with Plaintiff’s daily activities. Finally, new evidence considered by Appeals Council showing a diagnosis of sleep apnea did not render ALJ’s decision unsupported by substantial evidence as the physician did not identify any new limitations from the condition and noted effective treatment for it. The court affirmed the district court’s judgment.

Duran v. Berryhill, 725 Fed. App’x 577 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for supplemental security income.

The court affirmed. The court held Plaintiff’s omission of evidence indicating that he had limitations stemming from asthma or back pain does not demonstrate that the ALJ neglected his duty to fully and fairly develop the record. Next, the court held the ALJ properly provided specific and legitimate reasons for discounting the contradicted opinions of Plaintiff’s treating psychiatrist and examining psychologist; The court found that the ALJ properly provided specific, clear, and convincing reasons for discounting Plaintiff’s testimony concerning his symptoms and limitations. Likewise, the court found the ALJ did not err in assigning little weight to the lay witness testimony of Plaintiff’s mother providing “clear and convincing reasons” for rejecting it. Finally, the court found Plaintiff has not identified specific evidence in the record that the ALJ improperly failed to consider in formulating Plaintiff’s RFC or shown how the ALJ’s Step Five findings lack substantial evidentiary support. The court affirmed the district court’s judgment.

Montero v. Berryhill, 726 Fed. App’x 607 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for supplemental security income. Plaintiff argued that the ALJ erred in posing the hypothetical to the vocational expert because the ALJ did not include Plaintiff’s alleged limitations that he could not work continuously and needed to take rest days, or provide clear and convincing reasons for discounting this testimony; and (2) the record does not support the Commissioner’s contention that Plaintiff waived this argument by failing to raise it in the district court or to argue the issue with the requisite specificity.

The court agreed. The court found the ALJ did not offer an adequate rationale for excluding limitations that he could not work continuously and needed to take rest days or provide clear and convincing reasons for discounting this testimony. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (ALJ must identify “what parts of the claimant’s testimony were not credible and why”); Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (“If a vocational expert’s hypothetical does not reflect all the claimant’s limitations, then the expert’s testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.” (citation and internal quotation marks omitted)). The court found the record does not support the Commissioner’s contention that Montero waived this argument by failing to raise it in the district court or to argue the issue with the requisite specificity. Cf. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). The court reversed and remanded.

Davis v. Berryhill, 743 Fed. App’x 846 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits.

The court affirmed. The court held the ALJ proffered several specific, clear, and convincing reasons that supported her decision to discount Plaintiff’s testimony including instances of exaggeration and inconsistencies in her statements, the lack of supporting objective medical evidence, and inconsistencies between her daily activities and her alleged symptoms. Second, the court found the ALJ properly discounted treating physician’s opinion that Plaintiff had severe physical limitations citing the lack of supporting objective medical test results, as well as its inconsistency with the degree of limitation other physicians identified.

Next, the court held the ALJ properly found that treating physician’s diagnosis that Plaintiff had peripheral neuropathy was unsupported by objective medical evidence. SSR 14-1 the agency’s listing for peripheral neuropathy “requires “disorganization of motor function . . . in spite of prescribed treatment,” meaning “[s]ignificant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station.”” The court found that the physician’s exams indicated she she observed Plaintiff had “normal gait, normal balance, [and] normal motor [function],” and do not indicate [she] displayed objective signs of “disorganization of motor function” in her extremities.” The court noted that Plaintiff did not dispute “that the workup required by the Social Security Administration is not present in this record. Counsel’s answer to the ALJ’s reference to the lack of corroboration in the electrodiagnostic testing is that the testing “did not rule out peripheral neuropathy.” A failure to rule out a condition is not proof of that condition.”

The Court found that while the VE’s error in referencing the incorrect Dictionary of Occupational Titles (DOT) number was harmless as it was one digit off. The Court next found that Plaintiff’s assertion that her RFC limitation to understanding, remembering, and carrying out only simple instructions conflicts with the counter clerk position’s requirement of Reasoning Level 2 lacked merit. The court distinguished this case from Rounds v. Comm’r SSA, 807 F.3d 996 (9th Cir. 2015). “There, the conflict arose from Rounds’s particular limitation to “one-to two-step tasks” and Reasoning Level 2’s requirement to follow “detailed” instructions. Therefore, Rounds does not compel the conclusion that the counter clerk position’s Reasoning Level 2 requirement conflicts with [a] RFC limitation to simple tasks.”

Finally, the court held that any error committed by the ALJ by not incorporating the examining physician opinion into the RFC was harmless. The ALJ included in the RFC a sit/stand option every 20 minutes, a more stringent limitation than the doctor’s restriction to sitting for ninety minutes and standing (and ostensibly walking) for one hour at a time. The court affirmed the district court’s judgment.

Linden v. Berryhill, 736 Fed. App’x 684 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits and supplemental security income.

The court affirmed. The court held that Plaintiff’s tendency to exaggerate her symptoms when seeking treatment was clear and convincing reason for ALJ to find that she was not entirely credible. Second, the Court found the limitations listed in the RFC determination need only be consistent with, rather than identical to, the limitations identified by a treating physician. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010). Here, the limitations that the ALJ incorporated into the RFC were consistent with the limitations identified by the physicians whose opinions the ALJ credited. Next, the ALJ was not required to credit lay testimony of Plaintiff’s mother to the extent it conflicted with the medical evidence in the record.

Finally, the court held the Commissioner properly omitted from the agency record the additional evidence Plaintiff provided to the Appeals Council. The court held “we do not have jurisdiction to review a decision of the Appeals Council denying a request for review”; however, “the administrative record includes evidence submitted to and considered by the Appeals Council.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161-62 (9th Cir. 2012). Thus, “when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner’s final decision for substantial evidence.” Id. at 1163. Here…the Appeals Council looked at the evidence, determined it post-dated [the] date last insured, and decided it was not relevant. Because the Appeals Council did not take the evidence into account in deciding to decline review, it is not “evidence upon which the findings and decision complained of are based.” 42 U.S.C. § 405(g). Thus, the Commissioner did not err in omitting the evidence from the agency record. The court affirmed the district court’s judgment.

Petersen v. Berryhill, 737 Fed. App’x 329 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits. Plaintiff argued the ALJ erred in assessing her testimony regarding her symptoms, rejecting her treating physician’s opinion, and the Appeals Council erred in rejecting new evidence submitted.

The court disagreed. The court held the ALJ provided specific, clear, and convincing reasons for finding Plaintiff’s symptom testimony “not entirely credible” identifying conflicts between the objective evidence and testimony and Plaintiff’s inconsistent efforts on various exams. The court held there was no error in the ALJ’s evaluation of the opinion evidence. Finally, the court held the evidence submitted to the Appeals Council post-dates the period under review, is not retroactive to that period, and therefore would not reasonably affect the ALJ’s decision. The court affirmed the district court’s judgment.

Hornbuckle v. Berryhill, 730 Fed. App’x 502 (9th Cir. 2018)

A pro se Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for disability insurance benefits and supplemental security income. The court affirmed. The court held the ALJ did not err at Step Two of the sequential analysis by not finding depression constituted a severe impairment. The record supports the ALJ’s conclusion that, while two consulting psychologists diagnosed Plaintiff with depression, the record did not show he had any limitations stemming from his depression that would significantly affect his ability to perform basic work activities. Furthermore, because the ALJ decided Step Two in Plaintiff’s favor and considered the evidence of his depression in subsequent steps, thus rendering any error harmless. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). Next the court held the ALJ did not err in discounting Plaintiff’s testimony citing specific, clear, and convincing reasons for discounting his statements, including inconsistencies in his testimony, his erratic work history, evidence of his motivation to obtain benefits, and the lack of supporting objective medical evidence. Further, the ALJ did not err in evaluating the treating medical opinion evidence. The ALJ explained it was internally inconsistent and lacked support from objective medical evidence, which were specific and legitimate reasons for discounting medical opinions. Finally, the ALJ did not err by denying the subpoena requests Plaintiff submitted without his attorney’s knowledge. The court affirmed the district court’s judgment.

Clawson v. Berryhill, 733 Fed. App’x 899 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for disability insurance benefits.

The court affirmed. The court held the ALJ properly found that Plaintiff’s spinal impairment did not equal Listing 1.04B because Plaintiff did not establish symptoms and laboratory findings equal in severity and duration to the characteristics of that listing. Next, the court held the Appeals Council properly considered October 2013 disability opinion from the treating physician and the medical imaging results that Plaintiff submitted after the hearing. The court held even if the ALJ erred in discounting Plaintiff’s testimony concerning the extent of his symptoms and their limiting effects, any error was harmless, as the ALJ cited the requisite two-step framework and cited specific, clear, and convincing reasons for discounting portions of his testimony: inconsistencies between his alleged symptoms and daily activities, and a lack of supporting objective medical evidence. The court held the ALJ supported his findings with substantial evidence at Step Five by obtaining vocational expert testimony. Finally, the court found while the ALJ erred by failing to ask the VE whether his testimony conflicted with the Dictionary of Occupational Titles, the error was harmless though the VE’s testimony did diverge from the DOT (identifying 2 light jobs for a sedentary RFC) the VE also offered 2 jobs consistent with the RFC and DOT. The court affirmed the district court’s judgment.

Garibay v. Berryhill, 733 Fed. App’x 908 (9th Cir. 2018)

Pro se claimant appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits and supplemental security income. Plaintiff argued the ALJ erred in discounting the opinion of his treating physician and in assessing his credibility.
The court disagreed. The court held that the ALJ properly discounted the treating physician opinion because he failed to support his opinion with clinical findings. The court noted that the doctor provided contradictory opinions. Moreover, the ALJ provided specific, clear, and convincing reasons for discounting Plaintiff’s testimony concerning the extent of his symptoms and limitations and properly relied upon evidence in the record that Plaintiff stopped working for reasons unrelated to his health to discount his testimony. Finally, the ALJ did not err by citing Plaintiff’s ability to earn a college degree during his period of alleged disability when evaluating his testimony. The court affirmed the district court’s judgment.

Meyers v. Berryhill, 733 Fed. App’x 914 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits and supplemental security income. Plaintiff argued the ALJ erred in discounting her testimony and relying upon her lack of treatment in light of her financial constraints and SSR 96-7p.

The court disagreed. The court found that the ALJ properly cited the lack of supporting objective medical evidence, inconsistencies and exaggerations in Plaintiff’s statements, the fact that her symptoms improved with medication, inconsistencies between her alleged limitations and daily activities, and her inadequately explained minimal treatment. Further, the court held Plaintiff misinterpreted SSR 96-7p which “states, “the adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide,” or other explanatory information in the record. The ALJ considered evidence that [Plaintiff] lacked funds for some treatment but concluded there was no evidence she sought additional treatment from low-cost clinics, concluding this suggested she did not require more treatment.” The court affirmed the district court’s judgment.

Davis v. Berryhill, 736 Fed. App’x 662 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits and supplemental security income. Plaintiff argued the ALJ erred in assigning “less weight” to the opinion of the examining psychologist, in assessing her credibility, and assigning “no weight” to her roommate’s testimony.

The court disagreed. The court held substantial evidence supported ALJ’s interpretation of medical record. The court noted that the examining psychologist’s work preclusive opinion was offered at a time when Plaintiff was engaged in substance abuse and the ALJ had reasonably interpreted the record. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”). The court also upheld the ALJ’s credibility finding based upon the examining psychologist’s opinion of malingering and the other evidence in the record including medical evidence and Plaintiff’s daily activities. The court found the ALJ had properly considered the roomate’s testimony and discredited on the grounds that the testimony did not distinguish between times Plaintiff was using substances and periods of sobriety and it covered the same ground as Plaintiff’s own testimony. The court affirmed the district court’s judgment.

Vargas v. Berryhill, 735 Fed. App’x 413 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits and supplemental security income. Plaintiff argued that the ALJ erred failing to recognize and resolve the conflict between the description in the Dictionary of Occupational Titles (“DOT”) of the position of packager as entailing frequent exposure to atmospheric conditions, DOT 920.587-018, and his RFC, which requires him to “avoid moderate exposure to fumes, odors, dust, gas, and poor ventilation.”

The court agreed. However, the court held that any error was harmless in light of the ALJ’s alternative findings at Step Five that Plaintiff could perform the position of kitchen helper and that a significant number of these positions exist in the national economy. The court rejected Plaintiff’s ancillary argument that vocational expert, in responding to the ALJ’s hypothetical, misconstrued Plaintiff’s limitation “as including only over-shoulder reaching by his non-dominant arm, rather than reaching at shoulder level or above. Nor did the ALJ err by failing to resolve a conflict between the DOT’s requirements for kitchen helper and the vocational expert’s testimony that Plaintiff could perform this position, because any such conflict was not “obvious or apparent.” Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (ALJ need only resolve conflicts between expert testimony and the DOT that are obvious or apparent).” The court affirmed the district court’s judgment.

DeWolfe v. Berryhill, 736 Fed. App’x 189 (9th Cir. 2018)

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of his application for disability insurance benefits. Plaintiff argued the ALJ’s finding that there were significant numbers of jobs he could perform at Step 5 lacked substantial evidence. Specifically, Plaintiff identified a conflict between the position the vocational expert testified to —”retail surveillance monitor”—and the job title included at the Dictionary of Occupational Titles (“DOT”) entry the vocational expert identified—”surveillance system monitor.” The DOT entry for this position, DOT No. 379.367-010 describes the job of “surveillance-system monitor” as a government service position that “[m]onitors premises of public transportation terminals to detect crimes or disturbances, using closed circuit television monitors,” rather than a retail position. Plaintiff contended that this deviation from the DOT concerning the position the vocational expert identified as the one Plaintiff could perform affected the validity of the vocational expert’s testimony concerning the number of available jobs. Without being able to determine which position the vocational expert was testifying about—retail surveillance monitor or surveillance-system monitor—it was not possible to assess whether the ALJ’s finding that a significant number of jobs exist.

The court agreed. The court found that the ALJ’s failure to reconcile the vocational expert’s deviation from the DOT affected the validity of the vocational expert’s testimony concerning the number of available jobs. The Court recognized that the Commissioner argued “that the Department of Labor continues to maintain updated vocational information that cross-references the DOT online through the O*Net Online Resource Center (“O*Net”), and that a search of O*Net using the DOT code the vocational expert provided reveals that the position of “retail loss prevention specialist” is now encompassed by this DOT entry, this is not an explanation for the inconsistency that the ALJ presented.” The court concluded it could only affirm an ALJ’s decision based on reasoning the ALJ elucidates in the disability decision. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). The court vacated and remanded for the ALJ to follow up with the vocational expert.

Goodman v. Berryhill, 741 Fed. App’x 530 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits. The court affirmed the district court’s denial. The court held: (1) even assuming the ALJ erred in failing to discuss Plaintiff’s frequent medical appointments in crafting Plaintiff’s RFC, any such error was harmless as the evidence showed Plaintiff could work a non-traditional work shift (nights);(2) ALJ did not err by failing adequately to explain why she rejected the sedentary RFC rendered by a state-agency doctor, instead finding Plaintiff able to work at the light exertional level which was consistent with the objective evidence including medical evidence, daily activities, past work attempts, and lack of medication use; (3) the ALJ gave multiple valid reasons for discounting the VA Rating; (4) any error by the ALJ in not assigning weight to Plaintiff’s wife’s statements is harmless as the ALJ discussed the evidence; and (4) the ALJ’s decision that Plaintiff could perform the work required for the “cleaner, housekeeping” position was supported by substantial evidence. The court affirmed the district court’s judgment.

Saari v. Berryhill, 745 F. App’x 775 (9th Cir. 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for disability insurance benefits and supplemental security income. Plaintiff argued that the ALJ erred at Step Three by finding that Plaintiff did not meet the requirements for Listing 12.05C for intellectual disability. However, the ALJ erred by finding that Plaintiff did not fulfill Listing 12.05(C)’s second requirement, having a “valid verbal, performance, or full-scale IQ of 60 through 70.” The parties agreed that the ALJ’s reasoning that she lacked any IQ scores to corroborate those in the record is no longer correct, as the additional IQ scores were submitted to the Appeals Council and were part of the record. See Further) the other reasons that the ALJ provided for rejecting Plaintiff’s IQ scores lack the requisite substantial evidentiary support. The court reversed and remanded for an immediate award of benefits under the credit as true doctrine; that is to say, if the improperly excluded evidence were credited as true, the ALJ would be required to find Plaintiff disabled, as she meets the criteria for Listing 12.05C and a Plaintiff who meets a listed impairment qualifies as “disabled … without further inquiry”

Jacob v. Berryhill, No. 16-35927, 2018 U.S. App. LEXIS 35420 (9th Cir. Dec. 18, 2018).

Plaintiff appealed the district court’s judgment affirming the Commissioner’s denial of her application for supplemental security income. Plaintiff argued that the ALJ erred by relying upon Plaintiff’s reported daily living activities to discount her testimony concerning the extent of her symptoms and limitations, discounting the testimony of her mother, and rejecting her psychologist’s opinion that she would benefit from a job coach.

The court disagreed. The court found it was reasonable for the ALJ to conclude that her daily activities undermine her claims that her impairments prevent her from engaging in any work activity. Moreover, the ALJ also provided additional reasons for discounting her testimony such as medical evidence and her course of treatment, which were supported by substantial evidence in the record, rendering any error harmless. Likewise, the ALJ rejection of Plaintiff’s mother’s testimony based on her perceived interest in her daughter’s attainment of benefits was harmless error. While the ALJ’s rationale was improper her testimony overlapped significantly with her daughter’s and the ALJ’s rationale for discounting Plaintiff’s testimony applied with equal force to her mother’s. Finally, the court found that the ALJ did not err by declining to include physician recommendations, as opposed to imperatives, when formulating a claimant’s RFC. The court concluded that an RFC represents “the most [a claimant] can still do despite [his or her] limitations… rather than a claimant’s ideal work conditions.” The court affirmed the district court’s judgment.

Martinez v. Berryhill, 747 Fed. Appx. 634 (9th Cir. 2019).

Plaintiff filed claims for disability insurance benefits and supplemental security income; the ALJ found that she has multiple severe impairments, including neuropathy in her feet, obstructive sleep apnea, and migraine headaches, and that she has the RFC to lift/carry 40 pounds occasionally and 20 pounds frequently, occasionally climb ladders, ropes or scaffolds, occasionally interact with the general public, and mild to moderate loss of ability to understand, remember, and carry out complex or detailed job instructions. The ALJ denied benefits at step 5; the district court affirmed the ALJ’s decision.

On appeal, Plaintiff argued that the ALJ erred in his credibility assessment; specifically, the ALJ determined that Plaintiff’s medically determinable impairments could reasonably be expected to cause “some” of the alleged symptoms, but he “never identified which symptoms were reasonably related to the medically determinable impairments he had identified, or which testimony he found not to be credible.” See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (explaining that ALJs must provide some reasoning in order for a reviewing court to determine whether the ALJ’s conclusions were supported by substantial evidence). The ALJ also failed to make specific findings or provide germane reasons for discrediting the third party function report provided by Plaintiff’s son; “[;]ay testimony generally ‘cannot be disregarded without comment.’” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Reversed and remanded.

Blacksher v. Berryhill, 2019 U.S. App. LEXIS 5668 (9th Cir. Feb. 22, 2019).

Plaintiff filed for disability insurance benefits and supplemental security income; he appealed the denial of his claims. The court found that the ALJ erred in discounting his treating psychologist’s opinion “based on his failure to inquire about [Plaintiff’s] substance abuse and his lack of knowledge of [Plaintiff’s] drug use after an appointment with him, as well as by relying on [the treating psychologist’s] failure to refer [Plaintiff] for psychiatric treatment and medication.” However, the court found that these errors were harmless because “the ALJ properly relied upon [Plaintiff’s] gaps in treatment with [his treating psychologist] and inconsistencies between Blacksher’s behavior and [his treating psychologist’s] observations.”

The court also found that the ALJ erred in failing to provide specific and legitimate reasons for assigning “some weight” to the examining psychologist’s opinion. The court found that the ALJ failed to explain why he did not credit “a significant and probative portion of [the] opinion.” The court found that this error was not harmless because it “[went] to the level of [Plaintiff’s] disability and capacity independent of substance abuse” and was “not contradicted by substantial evidence in the record.” The court then found that this error “pervaded” the ALJ’s application of the six-question inquiry to determine the materiality of Plaintiff’s substance abuse. The court found “the ALJ’s reasoning that [Plaintiff] categorically cannot establish a disability absent sobriety is contrary to agency rulings” and thus was not harmless.

The court remanded the case “so the ALJ can reconsider the portion of [the examining psychologist’s] opinion regarding the severity of [Plaintiff’s] impairments if he ceased substance abuse; properly apply the six-question materiality inquiry without requiring a showing of sobriety; and conduct such further proceedings… as appropriate.” Reversed and remanded.

Still v. Berryhill, 2019 U.S. App. LEXIS 6996 (9th Cir. Mar. 8, 2019).

This is a very short favorable decision. The court found “[t]he ALJ erred in finding that the opinions of all of the mental health professionals who treated and examined [Plaintiff] and filled out mental residual functional capacity assessments were premised on self-reports.” Noting that the treating and examining providers examined her, conducted clinical interviews and mental status evaluations, and performed testing, the court stated “[c]linical interviews and mental status evaluations are ‘objective measures’ that ‘cannot be discounted as a ‘self report’”. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017).

The court also found that the ALJ erred in finding the non-examining physicians’ opinions were consistent with the record as a whole because “an examination of the whole record shows that he mental health experts who personally observed [Plaintiff] and assessed her ability to work unanimously opined that [Plaintiff’s] depression and anxiety prevented her from working.” Reversed and remanded.

Evans v. Berryhill, 2019 U.S. App. LEXIS 421, __ Fed. Appx. __ (9th Cir. Jan. 7, 2019).

Plaintiff’s claims for disability insurance benefits and supplemental security income were denied by the ALJ, which was affirmed by the district court. The court affirmed the district court’s judgment.
The court found the ALJ properly found Plaintiff’s testimony “not wholly credible” because it was inconsistent with the objective medical evidence and irregular and conservative treatment; the court found “[t]he ALJ reasonably contrasted [Plaintiff’s] failure to seek more aggressive treatment with his testimony that he was bedridden and could barely hold an empty glass because of pain.”

Plummer v. Berryhill, 747 Fed. Appx. 631 (9th Cir. Jan. 10, 2019).

Plaintiff appealed the denial of her claims for disability insurance benefits and supplemental security income. The court found that the ALJ misapplied the principles of res judicata – the evidence showed that Plaintiff’s condition had worsened since her prior claim had been denied, which rebutted the Chavez presumption of nondisability. However, the ALJ also offered “specific, legitimate reasons” for finding that Plaintiff was not disabled, which was supported by substantial evidence, and so the court affirmed the denial.

Waterhouse v. Berryhill, 748 Fed. Appx. 129 (9th Cir. 2019).

Plaintiff awarded benefits as of March 2014; on appeal, she argued that benefits should have been awarded as of 2009. During the oral argument, her counsel conceded that the evidence in the record did not support a finding of disability during 2009 or 2010, and proposed several alternative dates that could be considered the disability onset date. The court found that Plaintiff “did not meet her burden of demonstrating that the ALJ erred by not selecting from these dates because the ALJ’s determination that [she] was not disabled until March [] 2014 was based on specific evidence or opinions that we cannot say were improperly discounted.” The court affirmed the district court’s judgment.