Nicky Nichols v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICKY M NICHOLS, No. 15-35110
Plaintiff-Appellant, D.C. No. 3:14-cv-05139-BHS
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted January 19, 2018**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
Judges
Nicky Nichols appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Nichols’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
*
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).
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and we affirm.
The Administrative Law Judge (“ALJ”) provided specific and legitimate
reasons supported by substantial evidence to reject Dr. Jackson’s opinion.
Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). First, the ALJ reasonably
concluded that Dr. Jackson’s opinion was inconsistent with objective medical
evidence showing only mild physical limitations. Tommasetti v. Astrue, 533 F.3d
1035, 1041 (9th Cir. 2008) (explaining that the ALJ reasonably relied on
inconsistencies with the medical record to discount a treating physician’s opinion).
Second, the ALJ properly rejected the opinion based on inadequate clinical
findings supporting it. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
1228 (9th Cir. 2009) (explaining that an ALJ can reasonably discount a treating
physician opinion that is inadequately supported by clinical findings).
Dr. Jackson’s additional progress notes, first considered by the Appeals
Council, became part of the full record before this court. See Brewes v. Comm’r of
Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (holding that records
considered by the Appeals Council become part of the administrative record that
this court must review). Based on the full record before this court, substantial
evidence continues to support the ALJ’s reasoning for rejecting Dr. Jackson’s
opinion.
2 15-35110
The ALJ properly rejected the opinion of non-acceptable medical source Mr.
Gray based on the germane reasons that Mr. Gray had a short duration of contact
with Nichols and Mr. Gray’s opinion conflicted with his own treatment notes. See
Ghanim, 763 F.3d at 1161 (recognizing a conflict with treatment notes as a
germane reason to reject the medical opinion of a non-acceptable medical source);
Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996) (including limited duration of
contact in germane reasons for rejecting testimony of therapist).
The ALJ provided several specific, clear, and convincing reasons for finding
Nichols less than fully credible regarding the severity of her symptoms. Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ reasonably discredited
Nichols’s testimony regarding the severity of her physical limitations based on the
inconsistency between Nichols’s testimony and her boyfriend’s testimony
regarding her ability to attend to self-care. See Tommasetti, 533 F.3d at 1041–42
(explaining that the ALJ properly resolves conflicts and ambiguities between
evidence). Second, the ALJ properly concluded that Nichols’s physical
performance in medical evaluations was inconsistent with her testimony regarding
the severity of her functional limitations. See Molina v. Astrue, 674 F.3d 1104,
1113 (9th Cir. 2012) (concluding that the ALJ properly relied in part on the
objective medical evidence to discredit claimant testimony). Third, the ALJ
properly discredited Nichols’s testimony regarding the alleged severity of her
3 15-35110
symptoms based on inconsistencies with her own statements regarding her
activities. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (concluding
that the ALJ properly discredited the alleged severity of a claimant’s symptoms
based on inconsistencies with the claimant’s own statements regarding her
activities).
Substantial evidence supports the ALJ’s residual functional capacity finding
and conclusion of non-disability at step five. See Stubbs-Danielson v. Astrue, 539
F.3d 1169, 1175-76 (9th Cir. 2008) (concluding that the claimant fails to raise any
fresh issue when their contention of error at step five restates earlier arguments
regarding the ALJ’s review of the evidence).
AFFIRMED.
4 15-35110