Charel Fisher v. Nancy Berryhill ( 2017 )

  •                            NOT FOR PUBLICATION                              FILED
                        UNITED STATES COURT OF APPEALS                          DEC 26 2017
                                                                          MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT
    CHAREL LYNN FISHER,                             No.    16-35235
                    Plaintiff-Appellant,            D.C. No. 3:15-cv-05507-JPD
    Commissioner Social Security,
                       Appeal from the United States District Court
                         for the Western District of Washington
                      James P. Donohue, Magistrate Judge, Presiding
                              Submitted December 20, 2017**
    Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges
          Charel Fisher appeals the district court’s decision affirming the
    Commissioner of Social Security’s denial of Fisher’s application for disability
    insurance benefits under Title II of the Social Security Act. We have jurisdiction
                 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).
    under 28 U.S.C. § 1291. We review de novo, Rounds v. Comm’r of Soc. Sec.
    807 F.3d 996
    , 1002 (9th Cir. 2015), and we affirm.
           By failing to raise the issue before the district court, Fisher waived her
    challenge to the determination by the Administrative Law Judge (ALJ) that
    Fisher’s testimony was not entirely credible. See Greger v. Barnhart, 
    464 F.3d 968
    , 973 (9th Cir. 2006). Because credibility is not purely an issue of law, no
    exception applies. Id. (explaining that this Court can still review an issue despite
    failure to raise it at the district court when it is purely one of law).
           The record supports the ALJ’s observation that Dr. Ballard’s December
    2012 opinion does not indicate limitations that would last more than 12 months.
    This fact supports the ALJ’s decision to give her opinion “little weight.” Garrison
    v. Colvin, 
    759 F.3d 995
    , 1010 (9th Cir. 2014) (explaining that disability requires an
    impairment that is expected to last at least 12 months).
           The ALJ properly assigned “little weight” to Dr. Ballard’s November 2013
    opinion because (1) it depended upon subjective complaints not supported by
    physical findings and imaging studies, and (2) her diagnosis of fibromyalgia was
    not backed by objective clinical findings. See Tommasetti v. Astrue, 
    533 F.3d 1035
    1041 (9th Cir. 2008) (concluding that the ALJ properly rejected a treating
    physician’s opinion that was inconsistent with objective medical evidence); Bayliss
    v. Barnhart, 
    427 F.3d 1211
    , 1216 (9th Cir. 2005) (including inadequate support by
                                                 2                                  16-35235
    clinical findings as a reason that the ALJ can rely upon to reject a treating
    physician’s opinion).
          Taking into account the evidence considered by the Appeals Council,
    substantial evidence does not support the ALJ’s additional reasons for rejecting Dr.
    Ballard’s November 2013 opinion involving the continuity of her treatment, but
    any error was harmless, because the ALJ provided other specific and legitimate
    reasons supported by substantial evidence for rejecting Dr. Ballard’s opinion. See
    Brewes v. Comm’r of Soc. Sec. Admin., 
    682 F.3d 1157
    , 1163 (9th Cir. 2012)
    (concluding that evidence considered by the Appeals Council is part of the record
    that this Court must review in determining whether substantial evidence supports
    the ALJ’s opinion); Molina v. Astrue, 
    674 F.3d 1104
    , 1115 (9th Cir. 2012)
    (holding that error is harmless when it is inconsequential to the ultimate
    nondisability determination).
          The ALJ properly rejected the more severe limitations in Dr. Irwin’s opinion
    based on inconsistencies with objective medical evidence of unremarkable mental
    status examinations. The Residual Functional Capacity (RFC) reasonably
    incorporated the limitations in the portions of Dr. Irwin’s opinion that the ALJ
    credited. See Tommasetti, 533 F.3d at 1041 (explaining that the ALJ can properly
    reject a medical opinion that is inconsistent with the medical record); Stubbs-
    Danielson v. Astrue, 
    539 F.3d 1169
    , 1174 (9th Cir. 2008) (affirming the ALJ’s
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    assessment of the RFC based on the medical evidence).
          The RFC reasonably incorporated Dr. Donahue’s opinion regarding Fisher’s
    “rumination” when experiencing pain, and that she would have some difficulty
    with workplace stress. See Stubbs-Danielson, 539 F.3d at 1174.
          The ALJ properly weighed the remaining medical evidence, and substantial
    evidence supports the ALJ’s conclusions. See Tommasetti, 533 F.3d at 1041
    (concluding that the ALJ is responsible for resolving conflicts in the medical
          While the lay witnesses each described their personal observations of Fisher,
    substantial evidence supports the ALJ’s reasoning that their opinions regarding
    Fisher’s specific functional limitations relied on Fisher’s self-descriptions. See
    Valentine v. Comm’r of Soc. Sec. Admin., 
    574 F.3d 685
    , 694 (9th Cir. 2009)
    (reasoning that the ALJ provided a germane reason to reject lay testimony because
    it was substantially similar to the claimant’s own subjective complaints); Batson v.
    Comm’r of Soc. Sec. Admin., 
    359 F.3d 1190
    , 1193 (9th Cir. 2004) (explaining that
    when more than one interpretation of the evidence is plausible this Court should
    defer to the ALJ).
          The ALJ properly included in the RFC and the hypothetical to the
    Vocational Expert (VE) all limitations that were supported by substantial evidence.
    See Stubbs-Danielson, 539 F.3d at 1174-76 (concluding that the claimant fails to
                                              4                                      16-35235
    raise a fresh issue based on the RFC and VE testimony by restating earlier
    arguments about the medical evidence).
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