Julie Soler Amor v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIE A. SOLER AMOR, No. 16-35254
Plaintiff-Appellant, D.C. No. 3:14-cv-01526-TC
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted November 9, 2018
Portland, Oregon
Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,** District Judge.
Julie Soler Amor appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Soler Amor’s application for social
security supplemental security income under Title XVI of the Social Security Act.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ghanim v.
Colvin, 736 F.3d 1154, 1159 (9th Cir. 2014), and we affirm.
This Court lacks jurisdiction to review the Appeals Council’s decision to
deny “a request for review of an ALJ’s decision, because the Appeals Council
decision is a non-final agency action.” Brewes v. Comm’s of Soc. Sec. Admin., 682
F.3d 1157, 1161 (9th Cir. 2012). Although we may review evidence submitted to
and considered by the Appeals Council as part of the administrative record, id. at
1162, here the Appeals Council only looked at the evidence, and determined it did
not meet the standard for consideration, see 20 C.F.R. § 416.1470(b)(1987) (stating
that “if new and material evidence is submitted, the Appeals Council shall consider
the additional evidence only where it relates to the period on or before the date of
the administrative law judge hearing decision”) (current version at 20 C.F.R. §
416.1470(b)( (2018). Therefore, the new evidence did not become part of the
record, and we may not consider it. Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th
Cir. 2003).
Soler Amor’s argument that the ALJ erred in evaluating the medical
evidence and conducting a residual functional capacity assessment fails because
the argument is premised on the new medical evidence submitted to but not
considered by the Appeals Council, which is not part of the administrative record
before this Court.
2 16-35254
Soler Amor argues that this Court should retroactively apply Social Security
Ruling 16-3p, which supersedes a prior Social Security Ruling addressing
credibility. This Court has recognized that SSR 16-3p “makes clear what our
precedent already required,” Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir.
2017). Here, the ALJ’s reasoning satisfies SSR 16-3p and this Court’s precedent.
The ALJ identified specific, clear and convincing reasons that are supported
by substantial evidence for discounting Soler Amor’s testimony regarding the
debilitating effects of her symptoms: (1) she lacked motivation to work; (2) there
were inconsistencies between her subjective complaints and activities of daily
living; and (3) her subjective complaints are not consistent with the medical
evidence. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (affirming an
ALJ’s determination the claimant’s little propensity to work “negatively affected
her credibility regarding her inability to work”); Molina v. Astrue, 674 F.3d 1104,
1112 (9th Cir. 2012) (listing among proper considerations for credibility
assessment an engagement in activities of daily living that are inconsistent with the
alleged symptoms); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (holding
that an ALJ can consider a lack of supporting medical evidence when assessing
credibility). The ALJ incorrectly discounted her testimony on the basis that her
substance abuse and drug-seeking behavior contributed to her condition, but this
was harmless error because the ALJ gave several other specific, clear and
3 16-35254
convincing reasons. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197
(9th Cir. 2004) (concluding that error was harmless even if the record did not
support one of the ALJ’s stated reasons for disbelieving a claimant’s testimony).
The ALJ properly gave limited weight to case manager Mr. O’Neill’s
testimony because he infrequently met with Soler Amor. The ALJ reasonably
inferred that his testimony lacked foundation. Crane v. Shalala, 76 F.3d 251, 254
(9th Cir. 1995) (holding that lay witnesses must have sufficient contact with a
claimant during the relevant period to qualify as competent).
The ALJ properly gave some weight to Ms. Scott’s statement, agreeing that
Soler Amor has symptoms of depression and anxiety. The ALJ properly reasoned
that the activities that Ms. Scott listed do not reflect disabling limitations and
objective testing in the record does not support her stated physical limitations.
Inconsistency with medical evidence and activities of daily living are germane
reasons for discrediting lay witness testimony. Bayliss v. Barnhart, 427 F.3d 1211,
1218 (9th Cir. 2005). The ALJ also gave a germane reason to discount Ms. Scott’s
letter because she described mental limits that conflicted with examining
psychologist Dr. Duvall’s assessment. Id.The ALJ properly gave little weight to Ms. Juul’s statement that Soler Amor
is nervous and easily districted, causing her to cry and panic because it was
inconsistent with Dr. Duvall’s opinion that Soler Amor could pay attention and
4 16-35254
concentrate. The ALJ erred in giving little weight to Ms. Juul’s letter because she
did not have objective information or testing. An ALJ may not reject lay testimony
simply because the lay witness is not “knowledgeable in the medical and/or
vocational field.” Bruce v. Astrue, 557 F.3d 1113, 1116 n.1 (9th Cir. 2009).
However, this error was harmless because the ALJ gave a germane reason to give
little weight to her letter because it conflicts with Dr. Duvall’s opinion. See
Bayliss, 427 F.3d at 1218.
AFFIRMED.
5 16-35254