Linda Spears v. Nancy Berryhill ( 2017 )


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  •                                                                             FILED
                                NOT FOR PUBLICATION
                                                                                 DEC 21 2017
                        UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS
    
    
                                FOR THE NINTH CIRCUIT
    
    
    LINDA SPEARS,                                    No.    15-35033
    
                  Plaintiff-Appellant,               D.C. No. C14-5198-MAT
    
     v.
                                                     MEMORANDUM*
    NANCY A. BERRYHILL, Acting
    Commissioner Social Security,
    
                  Defendant-Appellee.
    
    
                       Appeal from the United States District Court
                         for the Western District of Washington
                      Mary Alice Theiler, Magistrate Judge, Presiding
    
                              Submitted December 19, 2017**
    
    
    Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
    
          Linda Spears appeals the district court’s affirmance of the Commissioner of
    
    Social Security’s denial of her application for disability insurance benefits under
    
    Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291
    
          *
                 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).
    and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 
    827 F.3d 872
    ,
    
    875 (9th Cir. 2016), and we affirm.
    
          The administrative law judge (“ALJ”) did not err in assessing the medical
    
    evidence concerning Spears’s physical and mental health. Spears’s argument
    
    amounts to a request that we reweigh the evidence, which we cannot do. The
    
    ALJ’s failure to discuss some of Dr. Layton’s records and clinical findings is of no
    
    consequence. “[T]he key question is not whether there is substantial evidence that
    
    could support a finding of disability, but whether there is substantial evidence to
    
    support the Commissioner’s actual finding that claimant is not disabled.”
    
    Jamerson v. Chater, 
    112 F.3d 1064
    , 1067 (9th Cir. 1997).
    
          Contrary to Spears’s allegations, the ALJ did not err in relying upon
    
    consulting physician Dr. Virji’s assessment. The ALJ declined to rely on the
    
    adverse report Dr. Virji commissioned from the Cooperative Disability
    
    Investigations Unit for additional investigation of the veracity of Spears’s claims
    
    because Spears contested the accuracy of the report. Although Dr. Virji discounted
    
    Spears’s subjective reports of her symptoms based on this report, Dr. Virji cited to
    
    objective medical evidence in the record to formulate the opinion upon which the
    
    ALJ relied. Because Dr. Virji’s opinion was supported by objective medical
    
    evidence, the ALJ did not err in relying upon it.
    
    
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           Similarly, the ALJ did not err in assessing the evidence from consulting
    
    physician Dr. Arcega. Spears’s contention that the ALJ should have accepted Dr.
    
    Arcega’s opinion that Spears was limited to sedentary work amounts to no more
    
    than a bold assertion unsupported by substantive argument or case law. We need
    
    not address this argument. See Carmickle v. Comm’r, Soc. Sec. Admin., 
    533 F.3d 1155
    , 1161 n.2 (9th Cir. 2008).
    
           Spears’s argument that the ALJ violated her duty to make a de novo
    
    determination concerning Spears’s eligibility for disability benefits by granting
    
    significant weight to Dr. Arcega’s opinion that Spears was not disabled also lacks
    
    merit. The ALJ explained she credited this portion of Dr. Arcega’s opinion because
    
    it was consistent with the overall medical evidence of record, which the ALJ
    
    discussed to support her opinion. Therefore, Spears has not shown the ALJ
    
    abdicated her duty to formulate an independent opinion concerning Spears’s
    
    eligibility for disability benefits.
    
           The ALJ also did not err in assessing the medical evidence concerning
    
    Spears’s mental health symptoms. The ALJ adopted the portion of examining
    
    physician Dr. Meagher’s opinion that conformed to the other medical evidence in
    
    the record. The ALJ reasonably discounted the results of the mental status
    
    examination tests Dr. Meagher administered because Spears appeared to be
    
    
                                              3
    exaggerating the severity of her symptoms during the exam by using a walker
    
    when, according to Spears’s own testimony, the exam took place during a period of
    
    time in which Spears did not need a walker. In addition, contrary to Spears’s
    
    argument that the ALJ erred in failing to incorporate Dr. Postovoit’s opinion that
    
    Spears’s pain could affect her sleep, and as a result affect her efficiency and ability
    
    to focus, the ALJ explained she adopted Dr. Postovoit’s opinion on this point and
    
    incorporated it into the residual functional capacity (“RFC”) analysis by limiting
    
    Spears to simple, routine tasks.
    
          The ALJ did not err in finding not entirely credible Spear’s allegations
    
    regarding the severity of her symptoms and functionality limitations. The ALJ
    
    performed the required two-step analysis and explained that she discounted
    
    Spears’s testimony because, among other reasons, there were times when Spears
    
    appeared to exaggerate the severity of her symptoms, Spears made statements
    
    inconsistent with her alleged symptoms, and the objective medical evidence in the
    
    record failed to substantiate her symptoms. See Treichler v. Comm’r of Soc. Sec.
    
    Admin., 
    775 F.3d 1090
    , 1102 (9th Cir. 2014). These constitute specific, clear, and
    
    convincing reasons, and they furnish adequate support for discounting Spears’s
    
    testimony. See id.; Thomas v. Barnhart, 
    278 F.3d 947
    , 960 (9th Cir. 2002); Molina
    
    v. Astrue, 
    674 F.3d 1104
    , 1112-14 (9th Cir. 2012).
    
    
                                               4
          The ALJ also did not err in affording little weight to the lay testimony from
    
    Spears’s husband. Even if the ALJ explained the decision to reject Mr. Spears’s
    
    evidence with “less than ideal clarity,” any error was harmless because Mr.
    
    Spears’s evidence “described the same limitations as [Spears’s] own testimony;”
    
    and the ALJ’s reasons for discrediting her testimony apply “with equal force” to
    
    Mr. Spears’s evidence. See Molina, 674 F.3d at 1121-22 (citing Alaska Dep’t of
    
    Envtl. Conservation v. EPA, 
    540 U.S. 461
    , 497 (2004)).
    
          Although the ALJ did not discuss the lay witness evidence from Spears’s
    
    former coworker, Meliah Looney, and Spears’s sister, Stacy Kaech, any error in
    
    this omission was harmless. Spears does not explain how the ALJ omitting
    
    discussion of Ms. Looney’s letter verifying Spears’s work ethic or Ms. Kaech’s
    
    letter, which provides substantially the same information as Spears’s testimony,
    
    “alters the outcome of the case” in light of “the record as a whole.” See Molina,
    
    674 F.3d at 1115. As a result, Spears has not shown that omitting discussion of this
    
    evidence was harmful error.
    
          Spears also has not demonstrated that the ALJ erred in analyzing Spears’s
    
    RFC or finding under Step Five that there are jobs existing in significant numbers
    
    in the national economy that Spears could perform. Spears’s allegations of error
    
    concerning these portions of the sequential evaluation depend upon finding the
    
    
                                              5
    ALJ committed harmful error in previous steps of the analysis, which Spears has
    
    not shown.
    
          Finally, despite Spears’s argument that the Appeals Council erred by not
    
    including additional evidence she submitted to the Appeals Council in the
    
    administrative court transcript, the Court lacks jurisdiction to review the Appeals
    
    Council’s decision about the contents of the record because such a decision is not a
    
    final agency action. See Brewes v. Comm’r Soc. Sec. Admin., 
    682 F.3d 1157
    , 1161-
    
    62 (9th Cir. 2012). Although the Court may instruct the Commissioner to consider
    
    new evidence as provided under 42 U.S.C. § 405(g), which requires showing the
    
    new evidence “is material and that there is good cause for the failure to incorporate
    
    such evidence into the record in a prior proceeding,” Spears has not demonstrated
    
    how the evidence at issue meets this standard.
    
          AFFIRMED.
    
    
    
    
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