Veronica Whitty v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 5 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA L. WHITTY, No. 19-35634
Plaintiff-Appellant, D.C. No. 3:18-cv-05837-DWC
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
David W. Christel, Magistrate Judge, Presiding
Submitted June 1, 2020**
Seattle, Washington
Before: GOULD, BEA, and MURGUIA, Circuit Judges.
Veronica Whitty appeals the judgment of the district court affirming the
Commissioner of Social Security’s denial of her claim for disability 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).
Reviewing the district court’s order de novo, we must affirm the Commissioner’s
decision to deny benefits if it is supported by substantial evidence and free of legal
error. Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). We affirm.
Whitty filed a claim for disability benefits based on pain and diminished
cognitive functioning. The Administrative Law Judge (“ALJ”) found that Whitty
was disabled beginning January 28, 2008. However, the ALJ denied benefits
based on the finding that Whitty did not become disabled before March 31, 2007,
the date of expiration of her insurance coverage.
Substantial evidence supports the ALJ’s decision that Whitty did not have a
severe impairment or combination of impairments before her date last insured.
First, Whitty submitted only one piece of medical evidence dated during the
relevant period: a report by her treating physician’s assistant. According to that
report, Whitty had recently experienced stress, but she “felt that she was doing
reasonably well.” The physician’s assistant also reported that Whitty was
“appropriately dressed and groomed,” and that she answered questions
appropriately. Also, Whitty became “appropriate[ly]” tearful when discussing her
son’s recent arrest. This physician’s assistant’s report does not compel the
conclusion that Whitty had a severe impairment during the relevant period.
The ALJ also reasonably concluded that subsequently dated medical
evidence did not relate back to the relevant period. Although disability may be
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established by a retrospective diagnosis, see Flaten v. Sec’y of Health & Human
Servs., 44 F.3d 1453, 1461 (9th Cir. 1995), none of Whitty’s medical evidence
contains a retrospective diagnosis. Because her subsequently dated medical
evidence does not relate back to the relevant period, Whitty has no objective
medical evidence of a severe impairment prior to her date last insured.
Second, the ALJ did not err in discrediting Whitty’s subjective symptom
testimony. The ALJ provided specific, clear, and convincing reasons to reject
Whitty’s testimony about the severity of her symptoms. See Lingenfelter v. Astrue,
504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ rejected Whitty’s testimony based
on the “remarkably sparse” medical record during the relevant period and
inconsistencies in her testimony.
Finally, the ALJ erred in only partially crediting the lay testimony of Carl
Whitty (“Carl”), Whitty’s ex-husband, without explanation, but this error was
harmless. To discount lay witness testimony, the ALJ must give reasons germane
to each witness. Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2018). The ALJ
recognized that Carl was in a “unique position to assess [Whitty’s] functional
abilities,” and found Carl’s opinions to be “consistent with the objective medical
evidence.” However, the ALJ gave only partial weight to Carl’s opinions without
giving any reason for doing so. This was error.
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But this error was harmless because it was “inconsequential to the ultimate
nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.
2012) (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th
Cir. 2008)). Here, Carl’s testimony did not contradict the ALJ’s nondisability
determination. Carl provided only limited information about Whitty’s limitations
during the relevant period. Even if the ALJ had assigned full weight to Carl’s
testimony, his testimony does not establish that Whitty had a severe impairment
during the relevant period.
AFFIRMED.
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