Edwin Dennin v. Nancy Berryhill ( 2017 )


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  •                                                                             FILED
                               NOT FOR PUBLICATION
                                                                                DEC 13 2017
                        UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS
    
    
                                FOR THE NINTH CIRCUIT
    
    
    EDWIN DENNIN,                                    No. 16-16684
    
                 Plaintiff-Appellant,                D.C. No. 3:15-cv-03686-SK
    
      v.
                                                     MEMORANDUM *
    NANCY A. BERRYHILL, Acting
    Commissioner Social Security
    
                 Defendant-Appellee.
    
    
                        Appeal from the United States District Court
                           for the Northern District of California
                          Sallie Kim, Magistrate Judge, Presiding
    
                              Submitted December 8, 2017**
                                San Francisco, California
    
    Before: THOMAS, Chief Judge, LUCERO*** and OWENS, Circuit Judges.
    
           Edwin Dennin appeals the district court’s affirmance of the Commissioner
    
    
    
           *
                 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).
           ***
                The Honorable Carlos F. Lucero, United States Circuit Judge for the
    Tenth Circuit, sitting by designation.
    of Social Security’s denial of supplemental security income and disability
    
    insurance benefits. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
    
          We review a district court’s affirmance of an Administrative Law Judge
    
    (“ALJ”) decision de novo. Parra v. Astrue, 
    481 F.3d 742
    , 746 (9th Cir. 2007). An
    
    ALJ’s denial of benefits may be set aside only if “‘the ALJ’s findings are based on
    
    legal error or are not supported by substantial evidence in the record as a whole.’”
    
    Id. (quoting Tackett v. Apfel, 
    180 F.3d 1094
    , 1097 (9th Cir. 1999)). “Substantial
    
    evidence is such relevant evidence as a reasonable mind might accept as adequate
    
    to support a conclusion.” Id.
    
          Dennin argues the ALJ erred by rejecting the opinion of a treating physician.
    
    “As a general rule, more weight should be given to the opinion of a treating
    
    source than to the opinion of doctors who do not treat the claimant.” Lester v.
    
    Chater, 
    81 F.3d 821
    , 830 (9th Cir. 1995) as amended (Apr. 9, 1996). Unless a
    
    treating source’s opinion is contradicted by another doctor, “it may be rejected
    
    only for ‘clear and convincing’ reasons.” Id. (quoting Baxter v. Sullivan, 
    923 F.2d 1391
    , 1396 (9th Cir. 1991)). “Even if the treating doctor’s opinion is contradicted
    
    by another doctor, the [ALJ] may not reject this opinion without providing
    
    ‘specific and legitimate reasons’ supported by substantial evidence in the record
    
    for so doing.” Id. (quoting Murray v. Heckler, 
    722 F.2d 499
    , 502 (9th Cir. 1983)).
    
    
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          The ALJ provided three reasons for giving little weight to the opinion of
    
    Dennin’s treating physician: (1) the physician’s limited time treating Dennin; (2)
    
    her questionable objectivity; and (3) her opinion’s inconsistency with the record
    
    and her treatment notes. We conclude the ALJ adequately explained the bases for
    
    rejecting the treating physician’s opinion, and that the explanation was supported
    
    by substantial evidence. See Ghanim v. Colvin, 
    763 F.3d 1154
    , 1161 (9th Cir.
    
    2014) (“A conflict between treatment notes and a treating provider’s opinions may
    
    constitute an adequate reason to discredit the opinions of a treating physician or
    
    another treating provider.”); Benton ex rel. Benton v. Barnhart, 
    331 F.3d 1030
    ,
    
    1038 (9th Cir. 2003) (stating that weight afforded treating physician may be
    
    viewed as “a continuum reflecting the duration of the treatment relationship and
    
    the frequency and nature of the contact” (quoting Ratto v. Sec’y, Dep’t of Health &
    
    Human Servs., 
    839 F. Supp. 1415
    , 1425 (D. Or. 1993))); Matney ex rel. Matney v.
    
    Sullivan, 
    981 F.2d 1016
    , 1020 (9th Cir. 1992) (holding an ALJ may give little
    
    weight to a treating physician who “had agreed to become an advocate”).
    
          Dennin also raises a number of issues that he did not advance before the
    
    district court. “As a general rule, an appellate court will not hear an issue raised
    
    for the first time on appeal.” Whittaker Corp. v. Execuair Corp., 
    953 F.2d 510
    , 515
    
    (9th Cir. 1992). We may exercise our discretion to excuse waiver to prevent a
    
    
                                               3
    miscarriage of justice, if a new issue is based on a change in law, or if the issue is
    
    purely one of law. Bolker v. Comm’r, 
    760 F.2d 1039
    , 1042 (9th Cir. 1985).
    
    Having thoroughly considered the issues presented by Dennin for the first time on
    
    appeal, we decline to excuse his waiver.
    
          AFFIRMED.
    
    
    
    
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