Kenneth Pedro v. Carolyn Colvin , 671 F. App'x 624 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH R. PEDRO, No. 15-15417
Plaintiff-Appellant, D.C. No. 2:13-cv-00492-CMK
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Craig Kellison, Magistrate Judge, Presiding
Submitted December 15, 2016**
San Francisco, California
Before: KOZINSKI, BYBEE, and N.R. SMITH, Circuit Judges.
Kenneth Pedro appeals the district court’s decision upholding the denial of
his application for disability insurance benefits. We affirm.
*
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).
1. Substantial evidence supports the Administrative Law Judge’s (“ALJ”)
decision to discount the medical reports from Dr. Cushman and Dr. Felix. Dr.
Cushman’s report relies largely on Pedro’s subjective complaints. It contains
limited clinical observations and the results of some short cognitive tests, none of
which showed anything remarkable. Dr. Felix’s report was similarly based on
Pedro’s subjective complaints, largely incorporated Dr. Cushman’s findings, and
even noted the lack of background information necessary to reach any definitive
conclusions. The ALJ did not err in giving these reports minimal weight. See
Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010); Tonapetyan v.
Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
2. Substantial evidence also supports the ALJ’s determination that Pedro was
not credible. The ALJ noted inconsistencies in Pedro’s testimony, found it
incredible that Pedro was not being treated for his allegedly disabling anxiety, and
noted that Pedro did not show signs of anxiety at the hearing. These are all
relevant considerations that the ALJ properly took into account. See Burch v.
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“The ALJ is permitted to consider
lack of treatment in his credibility determination.”); Thomas v. Barnhart, 278 F.3d
947, 958–59 (9th Cir. 2002) (listing a variety of factors an ALJ may consider in
making an adverse credibility determination); Tonapetyan, 242 F.3d at 1148
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(noting that an ALJ may not “rely on his own observations of the claimant at the
hearing as the sole reason for rejecting the claimant’s complaints,” but may
consider such observations as one factor).
3. Finally, substantial evidence supports the ALJ’s decision to discount the
written statements from Pedro’s family. “If the ALJ wishes to discount the
testimony of the lay witnesses, he must give reasons that are germane to each
witness.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). The ALJ noted that
Pedro’s wife’s statement was not supported by objective medical evidence and that
his mother’s and sister’s statements were inconsistent with other evidence in the
record. Although the ALJ should not have discredited Pedro’s wife’s statement
based on their close relationship, this error was harmless in light of the ALJ’s other
reasons for discounting her statement. See Valentine v. Comm’r Soc. Sec. Admin.,
574 F.3d 685, 694 (9th Cir. 2009).
AFFIRMED.
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