Glen Withrow v. Carolyn Colvin , 672 F. App'x 748 ( 2017 )

FILED
NOT FOR PUBLICATION
JAN 04 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLEN R. WITHROW, No. 15-55197
Plaintiff - Appellant, D.C. No. 8:13-cv-01959-AS
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Alka Sagar, Magistrate Judge, Presiding
Submitted December 30, 2016**
Before: PREGERSON, LEAVY, and OWENS, Circuit Judges.
Glen R. Withrow appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for supplemental
security income under Title XVI of the Social Security Act. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review de novo, Molina v. Astrue, 674 F.3d 1104,
1110 (9th Cir. 2012), and we affirm.
Withrow contends that the administrative law judge (ALJ) erred by rejecting
Dr. Piasecki’s opinion recommending that Withrow have the option of standing
and sitting at will. We reject Withrow’s contention because the ALJ specifically
indicated that Dr. Piasecki’s opinion was accorded partial weight and included the
standing and sitting at will option in the residual functional capacity (RFC)
determination. Dr. Piasecki’s heavy lifting limitation, moreover, was included in
the ALJ’s hypothetical to the vocational expert.
The ALJ provided specific and legitimate reasons for giving little weight to
the opinions of physicians Drs. Baird and Chung regarding Withrow’s standing
and walking limitations. As to Dr. Baird’s opinion, the ALJ reasonably determined
that this opinion was contradicted by the evidence in the record and by Withrow’s
own statements. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164
(9th Cir. 2008) (holding that if a treating physician’s opinion is contradicted by
other evidence, the ALJ must provide specific and legitimate reasons supported by
substantial evidence in the record for rejecting the opinion); Bray v. Comm’r Soc.
Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (stating that if the ALJ
determines that the subjective complaints of the claimant are not credible, this is a
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sufficient reason for discounting a physician’s opinion upon which the complaints
are based).
As to Dr. Chung’s opinion, the ALJ reasonably determined that Withrow’s
statements describing his activities of daily living indicated that Withrow was able
to stand and walk to a greater extent than Dr. Chung generally outlined. See
Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (stating that an
inconsistency between a treating physician’s opinion and a claimant’s daily
activities is a specific and legitimate reason to discount the treating physician’s
opinion).
The ALJ’s hypothetical to the vocational expert presented all the
limitations that were supported by the record. The hypothetical included the
existence of moderate mental impairments that could be controlled by appropriate
medication. Given the sparse medical record, the ALJ did not err by not including
the existence of uncontrolled impairments in his hypothetical to the vocational
expert. See Osenbrock v. Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001) (holding
that an ALJ’s hypothetical need not include properly rejected limitations).
Moreover, the vocational expert was later presented with an additional hypothetical
that included consideration of moderate and controlled limitations. In response,
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the vocational expert testified that such a person would still be able to perform the
unskilled work already identified.
Finally, Withrow’s contention that the vocational expert’s testimony
deviates from agency policy lacks merit. Withrow points to no actual conflict
between agency policy and the vocational expert’s testimony that a claimant with
moderate mental limitations can perform unskilled work. Moreover, this court has
upheld determinations that claimants with moderate mental limitations are capable
of doing simple unskilled work. See Valentine v. Comm’r Soc. Sec. Admin., 574
F.3d 685, 690 (9th Cir. 2009) (upholding a denial of benefits where the ALJ found
that a claimant with “moderate restrictions of his capacity to concentrate, interact
with the public, and carry out detailed work instructions” was not disabled);
Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) (the ALJ’s
finding of moderate mental limitations was consistent with an RFC for simple,
routine, and repetitive work). Withrow’s reliance on the Program Operations
Manual System (POMS) is misplaced, because POMS “does not impose judicially
enforced duties on either this court or the ALJ.” Lockwood v. Comm'r Soc. Sec.
Admin., 616 F.3d 1068, 1073 (9th Cir. 2010).
AFFIRMED.
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