Susan Koch v. Nancy Berryhill ( 2017 )

FILED
NOT FOR PUBLICATION
DEC 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN R. KOCH, No. 15-35444
Plaintiff-Appellant, D.C. No. 9:14-cv-00251-JCL
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge, Presiding
Submitted December 19, 2017**
Before: THOMAS, Chief Circuit Judge, TROTT and SILVERMAN, Circuit
Judges.
Susan R. Koch appeals from the district court’s order affirming the decision
of the Commissioner of Social Security denying her applications for disability
*
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).
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review the
district court’s order de novo, Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir.
2014), and we affirm.
The administrative law judge (“ALJ”) did not reject Dr. Sinnathamby’s
opinion. Rather, he accorded it significant weight and accounted for it in the
residual functional capacity (“RFC”) assessment by including relevant limitations
on Koch’s ability to stand. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,
1222-23 (9th Cir. 2010) (ALJ need not provide reasons for rejecting medical
opinion where ALJ accounted for it by including relevant limitations in RFC
assessment).
The ALJ provided specific and legitimate reasons for giving little weight to
Dr. Jenkins’ first opinion dated March 8, 2012. See Ryan v. Comm’r of Soc. Sec.,
528 F.3d 1194, 1198 (9th Cir. 2008) (ALJ may reject controverted medical opinion
by providing specific and legitimate reasons supported by substantial evidence).
Dr. Jenkins’ first opinion was contradicted by the opinion of a state agency
physician, and could be rejected for specific and legitimate reasons. Widmark v.
Barnhart, 454 F.3d 1063, 1066-67 (9th Cir. 2006). The ALJ properly discounted
Dr. Jenkins’ opinion because it was inconsistent with his treatment notes. See
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Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (incongruities between
doctor’s opinion and medical records may suffice as specific and legitimate
reasons for rejecting the opinion). Indeed, Dr. Jenkins opined that Koch could not
sustain employment on account of her Sjögren’s syndrome and other physical
conditions, but upon examination he recorded no worse than mild tenderness and
some reduced ranges of motion, and he noted that medication helped significantly
in managing Koch’s symptoms. At the time Dr. Jenkins rendered his opinion, he
had seen Koch two times. During the second visit, Dr. Jenkins noted the
medication he prescribed had helped Koch, and Koch rated her pain at a 3.5 out of
ten. Additionally, Dr. Jenkins’ findings following a physical examination were
mild, and his treatment notes from follow-up visits indicated that Koch continued
to improve.
Neither the ALJ nor the district court were required to evaluate the second
opinion from Dr. Jenkins, dated April 4, 2013, which Koch submitted for the first
time to the Appeals Council. The evidence related to a period later than the period
on or before the ALJ’s decision, and therefore did not affect the decision about
whether Koch was disabled during the relevant time period: on or before
March 4, 2013, the date of the ALJ’s decision. The Appeals Council did not
consider the second opinion, and the opinion did not become part of the
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administrative record. Accordingly, the district court was not required to consider
it in its determination of whether the ALJ’s decision was supported by substantial
evidence. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162-63 (9th
Cir. 2012).
Although the ALJ erred by not considering arthritis at step two and not
finding that varicose veins were a severe impairment, these errors were harmless
because they did not prejudice Koch at any step of the sequential analysis. See
Burch v. Barnhart, 400 F.3d 676, 682-84 (9th Cir. 2005) (no prejudice at step two
where ALJ recognized other severe impairments and allowed claim to proceed; no
prejudice at step three where claimant did not prove she had an impairment that
met or equaled a listing; no prejudice at step four where ALJ found in claimant’s
favor; and no prejudice at step five where ALJ accounted for omitted impairment
in RFC assessment); Lewis, 498 F.3d at 911 (harmless error where ALJ discussed
evidence related to an omitted impairment and “[t]he decision reflects that the ALJ
considered any limitations posed by [the omitted impairment at a later step]”). The
ALJ considered the evidence relating to Koch’s arthritis and varicose veins. The
ALJ discussed the symptoms and limitations associated with both arthritis and
varicose veins when assessing Koch’s RFC, and the RFC includes limitations
related to arthritis and varicose veins, such as limitations on Koch’s ability to sit,
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stand, and use her extremities. As for the rest of Koch’s impairments, the ALJ
properly reasoned that they were not severe because they caused only minimal
limitation on Koch’s ability to perform basic work activities. See Webb v.
Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005).
The ALJ provided specific, clear, and convincing reasons for finding that
Koch’s testimony was not entirely credible. See Vasquez v. Astrue, 572 F.3d 586,
591 (9th Cir. 2009) (ALJ may discredit claimant’s testimony by providing specific,
clear, and convincing reasons). First, the ALJ properly discredited Koch’s
testimony because the alleged level of severity was inconsistent with her reported
activities. See Molina, 674 F.3d at 1113 (inconsistencies between claimant’s
testimony and reported activities may be grounds for discrediting testimony). For
example, Koch testified she was confined to her bed for nearly two days a week,
but admitted she was able to care for herself and her granddaughter, prepare meals,
tend to household chores, shop for groceries, manage her money, pay bills, and go
camping. Second, the ALJ properly discredited Koch’s testimony because it was
inconsistent with objective medical evidence. See Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007) (inconsistencies between claimant’s testimony and medical
record are proper grounds to discredit testimony). For example, although Koch
testified her carpel tunnel syndrome caused significant pain and numbness in her
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hands, objective findings were unremarkable and relatively mild. Further, despite
Koch’s complaints of arthritis pain and numbness and aching in her arms and legs,
physical examinations showed normal strength, no joint swelling, infrequent
tenderness, and only some crepitus in the knees.
The ALJ properly included only those limitations he found to be both
credible and supported by substantial evidence in the RFC assessment and
hypothetical question to the vocational expert. See Bayliss v. Barnhart, 427 F.3d
1211, 1217 (9th Cir. 2005).
Finally, because Koch did not assert in the district court that the ALJ erred in
failing to consider whether the severity of her Sjögren’s syndrome met or equaled
the criteria of listing 14.10, we decline to address it for the first time on appeal.
See Edlund v. Massanari, 253 F.3d 1152, 1160 n. 9 (9th Cir. 2001) (holding that
where the claimant fails to raise an argument in the district court, this Court may
not consider the argument on appeal).
AFFIRMED.
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