Tammy Jorgensen v. Nancy Berryhill , 680 F. App'x 612 ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMMY R. JORGENSEN, No. 14-35635
Plaintiff-Appellant, D.C. No. 3:13-cv-05199-RBL
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted March 8, 2017**
Seattle, Washington
Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.
Claimant Tammy R. Jorgensen appeals a district court judgment affirming
the denial of her application for disability insurance and Supplemental Security
Income under the Social Security Act. Reviewing the district court’s decision de
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
novo and the administrative law judge’s ("ALJ") decision for substantial evidence,
Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015), we
affirm.
1. The ALJ did not err in analyzing the medical evidence. In particular, the
ALJ did not err in assessing Dr. Laura Keeter’s report because the residual
functional capacity ("RFC") assessment accounted for Claimant’s respiratory
symptoms documented in that report, but the report’s other conclusions lacked
adequate support in the record. The ALJ also did not improperly reject Nurse
Desiree White’s report. The ALJ had no duty to supplement the record because the
White report was adequate "to allow for proper evaluation of the evidence."
Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). The ALJ correctly
concluded that Nurse White was not an "acceptable medical source," see 20 C.F.R.
§ 404.1513(a) (listing acceptable sources), and provided "germane reasons" for
discounting her opinion, see Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012). The ALJ also correctly assessed the remaining medical sources. Finally,
the ALJ did not err in concluding that Claimant’s asthma was not a severe
impairment, because she identified adequate record support for her conclusion that
Claimant’s asthma is well controlled with proper medication.
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2. The ALJ did not err in assessing Claimant’s credibility. The ALJ
"provide[d] clear and convincing reasons, supported by evidence in the record," for
concluding that Claimant’s asthma and dizziness symptoms were not as severe as
alleged. Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). The ALJ
reasonably found that Claimant’s activities of daily living undermined some of her
assertions and formulated an RFC consistent with those activities. See Molina, 674
F.3d at 1113 (explaining that activities of daily living "may be grounds for
discrediting the claimant’s testimony to the extent that they contradict claims of a
totally debilitating impairment"). The ALJ did not err in considering, without
treating as dispositive, Claimant’s application for unemployment benefits during
the alleged disability period, in which she certified an ongoing search for full-time
employment. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,
1161–62 (9th Cir. 2008) (holding that "receipt of unemployment benefits can
undermine a claimant’s alleged inability to work full[-]time"); Copeland v. Bowen,
861 F.2d 536, 542 (9th Cir. 1988) (same).
3. The ALJ did not err in formulating the RFC. Even assuming, without
deciding, that the ALJ did not adequately explain her conclusion at Step Four of
the sequential evaluation process that Claimant could perform past relevant work,
the ALJ did not err in her conclusion at Step Five that Claimant could perform
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other work. See Molina, 674 F.3d at 1115 (explaining that an error was
"inconsequential where the record supported the ALJ’s determination that the
claimant was able to perform other light work and therefore was not disabled").
4. We decline Claimant’s request to credit her testimony as true and to
remand for the calculation of benefits. The ALJ gave permissible reasons for not
crediting aspects of Claimant’s testimony that conflicted with the RFC.
AFFIRMED.
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