Darrell Tate v. Michael Astrue , 431 F. App'x 565 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DARRELL TATE, No. 10-35461
Plaintiff - Appellant, D.C. No. 3:09-cv-05302-RJB
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted May 2, 2011 **
Seattle, Washington
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
Darrell Tate appeals from the judgment of the district court affirming a
decision of the Commissioner of Social Security denying his application for
*
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).
Supplemental Security Income disability benefits pursuant to Title XVI of the
Social Security Act. We affirm.
The administrative law judge (“ALJ”) properly weighed the medical
opinions in the record. The ALJ provided specific and legitimate reasons,
supported by substantial evidence, for giving less weight to the psychological
evaluations of Dr. Pamela Sarlud-Heinrich and Dr. Shoshanna Press, including that
Tate had not been forthcoming with these doctors about his alcohol and substance
abuse and had embellished his symptoms. See Lester v. Chater, 81 F.3d 821, 830-
31 (9th Cir. 1995). The ALJ properly gave greater weight to the psychological
evaluation of Dr. Anita Peterson because Dr. Peterson’s conclusions were
consistent with independent evidence in the record. See Tonapetyan v. Halter, 242
F.3d 1144, 1149 (9th Cir. 2001). The ALJ also properly accorded great weight to
the medical evaluations that concluded that Tate could perform sedentary work,
because the evaluations were supported by physical examinations, Lester, 81 F.3d
at 830, and consistent with the evidence in the record, Tonapetyan, 242 F.3d at
1149.
In evaluating Tate’s claim, the ALJ properly followed the five-step inquiry
for determining whether a claimant qualifies for disability benefits. 20 C.F.R.
§§ 404.1520, 416.920; Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir.
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2001). Substantial evidence supports the ALJ’s conclusion that Tate’s alcohol and
substance abuse contributed materially to a finding of disability and that, if Tate
stopped abusing substances, he would be able to perform certain types of unskilled,
sedentary work. See Bustamante, 262 F.3d at 954-55. Dr. Peterson concluded
that, if Tate stopped abusing substances, he would have only moderate restrictions
in activities of daily living and social functioning, and would be able to perform
three-step, repetitive tasks in a structured, low-pressure setting. Tate’s medical
examiners and a treating physician determined that his physical impairments did
not prevent Tate from performing sedentary work with certain postural restrictions.
See Lester, 81 F.3d at 830. A vocational expert testified that an individual with
Tate’s functional restrictions could work in certain representative positions
available nationally and in Washington state. See Magallanes v. Bowen, 881 F.2d
747, 756 (9th Cir. 1989).
Substantial evidence supports the ALJ’s determination that Tate’s diabetes is
not sufficiently severe to qualify as a disability under Appendix 1 to 20 C.F.R. Part
404. See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Part 404, Appendix 1 § 9.08.
Tate is able to walk with a cane and has only some limitations on his ability to
perform other gross and dexterous movements.
AFFIRMED.
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