Coulette Osmore v. Michael Astrue , 472 F. App'x 529 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
COULETTE OSMORE, No. 11-35212
Plaintiff - Appellant, D.C. No. 3:09-cv-05640-RBL
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted March 6, 2012 **
Seattle, Washington
Before: PAEZ and FERNANDEZ, Circuit Judges, and GWIN, District Judge.***
*
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).
***
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
Coulette Osmore appeals the district court’s judgment reversing the
Commissioner’s final decision that Osmore was not disabled within the meaning of
Title XVI of the Social Security Act, 42 U.S.C. §1383c(a)(3), and remanding the
matter for further administrative proceedings. With her appeal, Osmore seeks an
order that, on remand, the Adminstrative Law Judge (ALJ) must complete an
entirely new evaluation of Osmore’s Supplemental Security Income and Disability
Insurance Benefits applications. We affirm.
Standing
Osmore has standing to pursue this appeal because “the District Court’s
order g[ave] [Osmore] some, but not all, of the relief she requested.” Forney v.
Apfel, 524 U.S. 266, 271 (1998).
Evaluation of the Medical Evidence
The Commissioner says that, on remand, he will both consider the effects of
Osmore’s mental impairments and allow Osmore to argue that medication side
effects limit her residual functional capacity. Accordingly, Osmore’s claim that
the ALJ improperly disregarded evidence of Osmore’s depression and medication
side effects is moot. See W. Coast Seafood Processors Ass’n v. Natural Res. Def.
Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011) (“An appeal is moot if there exists
no ‘present controversy as to which effect relief can be granted.’” (quoting
Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir.
2007))). On remand, the ALJ must consider Osmore’s mental impairments and
medication side effects.
The ALJ did not err by failing to discuss specifically Osmore’s MRI and CT
scan results. “[I]n interpreting the evidence and developing the record, the ALJ
does not need to discuss every piece of evidence.” Howard ex rel. Wolff v.
Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citation and internal quotation
marks omitted). Here, Osmore’s MRI results were consistent with her CT scan
results. Both revealed that Osmore has the severe impairment spondylolisthesis.
The ALJ properly considered Osmore’s medical records—including records that
evaluated her MRI and CT scan—in evaluating Osmore’s impairments.
The ALJ provided specific and legitimate reasons for rejecting Dr. Tim
Truschel’s (a treating physician) opinion: other treating and non-treating
physicians’ opinions, along with Osmore’s treatment records, contradicted Dr.
Truschel’s opinion. A non-examining physician’s opinion may constitute
substantial evidence to disregard the opinion of an examining physician if it is
consistent with other independent evidence in the record and the ALJ does not rely
on the non-examining physician’s report alone. Lester v. Chater, 81 F.3d 821, 831
(9th Cir. 1995).
The ALJ did not err in evaluating the medical records from Osmore’s twelve
other physicians. The ALJ noted Osmore’s history of back pain, cited several of
Osmore’s physicians’ medical opinions and treatment records, and appropriately
developed and considered the record. See, e.g., Howard, 341 F.3d at 1012.
Evaluation of Other Evidence
The ALJ did not err in discrediting Osmore’s symptom testimony based on
inconsistencies with 1) the objective medical evidence and 2) Osmore’s daily
activities. See Regennitter v. Comm'r Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th
Cir. 1998) (Inconsistencies with clinical observations can “satisfy the requirement
of a clear and convincing reason for discrediting a claimant’s testimony.”); Rollins
v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (The ALJ may reject the
claimant’s testimony when inconsistent with the claimant’s daily activities and
contrary to the medical evidence.).
The ALJ did not err in failing to consider Osmore’s lay-witness evidence. In
2004, Osmore’s husband and sister prepared reports for Osmore’s prior Social
Security benefits applications; the present application concerns disability
beginning March 2005. Accordingly, these out-of-date lay-witness reports are not
probative evidence of Osmore’s 2005 disability status. See Vincent v. Heckler, 739
F.2d 1393, 1395 (9th Cir. 1984) (“[T]he evidence which the Secretary ignored was
neither significant nor probative.”). On remand, however, Osmore may seek leave
to submit additional evidence from lay witnesses.
Other Claims of Error
The district court explained that because “the ALJ erred in evaluating the
medical evidence in the record concerning [Osmore’s] mental impairments and
limitations,” the ALJ also erred “in assessing [Osmore’s] residual functional
capacity.” In its judgment reversing and remanding, the district court ordered the
ALJ to make a new determination of Osmore’s residual functional capacity and of
Osmore’s ability to perform past relevant and current work. Accordingly,
Osmore’s remaining allegations of error—regarding the ALJ’s determination of
Osmore’s residual functional capacity and ability to perform past relevant and
current work—are also moot. See W. Coast Seafood, 643 F.3d at 704.
AFFIRMED.