Dawn Vermeulen v. Nancy Berryhill ( 2018 )

FILED
NOT FOR PUBLICATION
MAY 16 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAWN M. VERMEULEN, No. 16-35374
Plaintiff-Appellant, D.C. No. 3:15-cv-05400-BAT
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding
Argued and Submitted May 9, 2018
Seattle, Washington
Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM,** Chief District
Judge.
Dawn Vermeulen appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for Disability
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. § 1381 et
seq. We have jurisdiction pursuant to 28 U.S.C. § 1291.
The ALJ provided specific, clear and convincing reasons for concluding that
Vermeulen’s subjective symptom testimony was not credible, including evidence
that Vermeulen engaged in activities such as cooking, cleaning, grocery shopping,
handling finances, completing personal hygiene, taking care of her son, driving to
and attending her son’s sporting events, mowing the lawn, walking, riding a bike,
watching movies, and weight lifting. See Molina v. Astrue, 674 F.3d 1104, 1113
(9th Cir. 2012). Although Vermeulen argued that her ability to engage in these
activities of daily living varied from day to day, “[w]here evidence is susceptible to
more than one rational interpretation, the ALJ’s decision should be upheld.” Orn
v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal quotation marks omitted).
In declining to credit the degree of impairment claimed by Vermeulen, the
ALJ also relied on evidence of Vermeulen’s unwillingness to pursue various forms
of treatment, including declining different types of medication and alternative
suggested treatments such as physical therapy, cognitive behavioral therapy, Tai
Chi, and exercise. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
Evidence that Vermeulen was not motivated to seek recommended treatments “is
powerful evidence regarding the extent to which she was in pain,” id., thus
2
supporting the ALJ’s adverse credibility determination. Although we have held
that the failure to obtain medical treatment cannot be a basis for an adverse
credibility finding if the claimant could not afford treatment, see Orn, 495 F.3d at
638, the ALJ could reasonably conclude that this rationale is not applicable to
recommended treatments such as exercise and Tai Chi which could be obtained at
low cost.
The ALJ did not err in weighing the various medical opinions. The ALJ
gave specific and legitimate reasons for rejecting Dr. Nguyen’s opinion because it
was inconsistent with other evidence in the record and because Dr. Nguyen failed
to provide a basis for many of the indicated functional limitations. See Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ gave
germane reasons for giving limited weight to the opinion of chiropractor Nicholas
Peck because it was inconsistent with treatment records and with Vermeulen’s
reported daily activities. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d
1155, 1163–64 (9th Cir. 2008). The ALJ gave proper weight to the opinions of Dr.
Sapp and Dr. Staley because they were consistent with evidence in the record,
3
including the objective imaging data and the opinions of several of the treating and
examining physicians.1
The ALJ did not err in framing the hypothetical question to the vocational
expert or in the residual functional capacity finding because the ALJ could exclude
limitations based on Vermeulen’s non-credible testimony and on medical sources
that the ALJ had rejected. See Stubbs-Danielson v. Astrue, 539 F.3d 1169,
1175–76 (9th Cir. 2008).
The new medical evidence provided to the Appeals Council was consistent
with the ALJ’s findings and therefore does not compel the conclusion that the
ALJ’s findings were not supported by substantial evidence.
AFFIRMED.
1
We do not address Vermeulen’s argument that the ALJ failed to properly
evaluate fifteen or so other medical opinions because she does not clearly and
distinctly argue how the ALJ erred. See Paladin Assocs., Inc. v. Mont. Power Co.,
328 F.3d 1145, 1164 (9th Cir. 2003).
4