Holly Best v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOLLY L. BEST, No. 18-35088
Plaintiff-Appellant, D.C. No. 3:16-cv-06040-RAJ
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted June 5, 2020**
Seattle, Washington
Before: GOULD, BEA, and MURGUIA, Circuit Judges.
Holly Best appeals the district court’s affirmance of the Social Security
Commissioner’s denial of her application for disability insurance benefits and
supplemental security income under Titles II and XVI of the Social Security Act.
*
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).
Although the Administrative Law Judge (“ALJ”) concluded that Best was disabled
after proceeding through the five-step evaluation process, the ALJ denied Best’s
application because the ALJ found that her alcohol and opioid use were contributing
factors material to her disability. See 42 U.S.C. § 423(d)(2)(C). We have
jurisdiction under 28 U.S.C. § 1291. We review the district court’s affirmance of an
ALJ’s denial of social security benefits de novo and the ALJ’s decision for
substantial evidence and legal error. Garrison v. Colvin, 759 F.3d 995, 1009–10
(9th Cir. 2014). We affirm.
1. Best challenges the ALJ’s finding that her fibromyalgia was not a
severe medically determinable impairment, the ALJ’s alleged failure to develop the
record regarding her fibromyalgia, and the ALJ’s decision to discount her testimony
regarding her fibromyalgia as not credible. Best waived these arguments by failing
to raise them in the district court. See Greger v. Barnhart, 464 F.3d 968, 973 (9th
Cir. 2006).
2. Substantial evidence supports the ALJ’s finding that Best’s substance
abuse was a contributing factor material to her disability. Best’s examining
psychologist, Dr. Alysa Ruddell, opined that Best’s mental impairments were
“primarily the result of alcohol or drug use within the last 60 days” of her mental
status examination. Best’s other treatment providers found that Best’s grief was
“exacerbated by her substance use” and that her self-harm and suicidal ideation were
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“primarily related to her substance use.” Drs. Michael Brown and Thomas Clifford,
both non-examining medical consultants, also opined that Best’s substance abuse
was material to her disability. During limited periods of sobriety, Best appeared to
improve and have mild to moderate mental limitations, which were otherwise
accounted for in the ALJ’s residual functional capacity (“RFC”) assessment and by
restricting Best to light, entry-level work that required only occasional adaptation to
change in routine.
3. The ALJ did not err by failing to fully credit the opinion of Best’s
examining psychologist, Dr. Ruddell. Although Dr. Ruddell opined that Best had
several “marked” limitations, Dr. Ruddell found they were “primarily the result of
alcohol or drug use within the last 60 days.” Dr. Ruddell’s opinion is therefore
consistent with the ALJ’s conclusion that substance abuse was material to Best’s
disability.
4. The ALJ did not err by discounting Best’s Global Assessment of
Functioning (“GAF”) scores. The ALJ correctly noted that a GAF score is merely
“a rough estimate of an individual’s psychological, social, and occupational
functioning used to reflect the individual’s need for treatment”; it does not have any
direct correlative work-related or functional limitations. Vargas v. Lambert, 159
F.3d 1161, 1164 n.2 (9th Cir. 1998).
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5. The ALJ did not err by discounting Best’s pain and limitations
testimony. The ALJ proffered specific, clear, and convincing reasons supported by
substantial evidence for discounting Best’s testimony, including that Best failed to
follow her treatment providers’ prescribed course of treatment, her daily activities
were inconsistent with the alleged degree of her disability, and she made inconsistent
statements to treatment providers about her substance abuse. See Trevizo v.
Berryhill, 871 F.3d 664, 679 (9th Cir. 2017); Molina v. Astrue, 674 F.3d 1104, 1112
(9th Cir. 2012); Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002).
6. The ALJ did not err by discounting the lay testimony of Best’s mother,
Linda Best (“Linda”). The ALJ provided two germane reasons for discounting
Linda’s testimony. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). First,
Linda’s testimony was based on Best’s subjective complaints, which the ALJ found
were not credible. Second, Linda’s testimony did not address Best’s substance abuse
and thus was not relevant to the ALJ’s determination that Best’s substance abuse
was material to her disability.
7. The ALJ did not err in assessing Best’s RFC or in posing hypothetical
questions to the vocational expert. The RFC and hypothetical questions properly
included only those limitations the ALJ found credible and supported by substantial
evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Batson v.
Comm’r, 359 F.3d 1190, 1197 (9th Cir. 2004). Because the ALJ did not err in
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assessing Best’s RFC, the ALJ did not err in using it as the foundation for steps four
and five of the sequential evaluation process.
AFFIRMED.
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