David Rice v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID JAMES RICE, No. 19-16105
Plaintiff-Appellant, D.C. No. 2:17-cv-00890-DMC
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dennis M. Cota, Magistrate Judge, Presiding
Submitted June 10, 2020**
San Francisco, California
Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,*** District Judge.
David Rice (“Rice”) appeals a district court decision affirming the
Commissioner of Social Security’s denial of Rice’s application for supplemental
*
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).
***
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
security income under Title XVI of the Social Security Act. Rice claimed
disability due to hepatitis, back pain, and clubfeet. At step five, the Administrative
Law Judge (“ALJ”) determined that Rice could perform jobs that exist in
significant numbers in the national economy. For the reasons stated below, we
affirm.
1. The ALJ ensured a full and complete record, including leaving the record
open for thirty days after the hearing. Dr. Kyle conducted a full consultative
examination on Rice, including assessing his hepatitis B, and Drs. Hanna and
Clancey both also conducted independent reviews of the medical record. See
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The opinions of non-
treating or non-examining physicians may also serve as substantial evidence when
the opinions are consistent with independent clinical findings or other evidence in
the record.”). Rice does not show how Dr. Hanna’s analysis was hampered by the
absence of a different type of examination by Dr. Kyle. See Mayes v. Massanari,
276 F.3d 453, 459-60 (9th Cir. 2001) (“An ALJ’s duty to develop the record
further is triggered only when there is ambiguous evidence or when the record is
inadequate to allow for proper evaluation of the evidence.”).1
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Evidence post-dating the ALJ’s decision that Rice’s hepatitis viral load has
since dramatically increased does not show that the ALJ failed to develop the record
a year before. See Sanchez v. Sec. of Health & Human Servs., 812 F.2d 509, 512
(9th Cir. 1987). Rice also argues that the ALJ failed to pursue inquiry with respect
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2. Even assuming that the ALJ erred at Step 2 in finding that Rice’s
hepatitis, and knee and ankle impairments were non-severe, any error was
harmless. The ALJ found that Rice’s back pain secondary to degenerative disc
disease was severe and properly considered Rice’s non-severe impairments in
assessing his residual functional capacity (“RFC”). See 20 C.F.R. §§ 404.1520,
416.921; see also Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (finding
harmless the failure to list an impairment as severe at Step 2 if the ALJ adequately
considered the impairment and its attendant limitations at Step 4).
3. Rice fails to show reversible error in the ALJ’s determination that he
failed to prove that he had an impairment that met or equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”). See 20
C.F.R. § 416.920(a)(4)(iii). Although the ALJ’s discussion was short, Rice has not
plausibly developed anything to show how his impairments taken together equal a
listing impairment. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (citing
Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001)). The record supports that the
ALJ thoroughly reviewed the evidence, and the ALJ needed not “state why a
claimant failed to satisfy every different section of the listing of impairments.”
Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990).
to his knee issues, but he did not raise this argument below. See Greger v. Barnhart,
464 F.3d 968, 973 (9th Cir. 2006).
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4. The ALJ gave “specific, legitimate reasons” for partially discounting Dr.
McMullin’s opinion, and substantial evidence supports the weight given to that
opinion. Thomas, 278 F.3d at 957 (citation omitted). Dr. McMullin’s opinion was
brief, conclusory, cited no specific clinical findings, and therefore apparently relied
“to a large extent” on Rice’s self-reports. Tommasetti v. Astrue, 533 F.3d 1035,
1041 (9th Cir. 2008) (citation omitted). Substantial evidence also supports the
weight the ALJ gave to the opinions of Drs. Clancey, Hanna, and Kyle. See
Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997) (“Thus, the key question
is not whether there is substantial evidence that could support a finding of
disability, but whether there is substantial evidence to support the Commissioner’s
actual finding that the claimant is not disabled.”).
5. Substantial evidence supports the ALJ’s evaluation of Rice’s subjective
complaints. “[A]n ALJ must provide specific, clear, and convincing reasons”
when discrediting a claimant’s testimony. See Burrell v. Colvin, 775 F.3d 1133,
1137 (9th Cir. 2014). Here, the ALJ reasonably determined that the severity of
Rice’s subjective complaints was not fully credible because records showed
generally mild findings, Rice failed to attend physical therapy, and many
examinations were within normal limits. “Where evidence is susceptible to more
than one rational interpretation, it is the ALJ’s conclusion that must be upheld.”
Burch, 400 F.3d at 679.
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6. The ALJ’s hypotheticals and the responses by the vocational expert were
adequate. The hypotheticals were not incomplete simply because the RFC finding
did not account for all of Rice’s alleged limitations—the ALJ included the
limitations she found supported by the record. And even assuming that the ALJ
omitted some limitations, any error was harmless because substantial evidence
supports the ALJ’s finding of no disability. See Stubbs-Danielson v. Astrue, 539
F.3d 1169, 1173–74 (9th Cir. 2008) (concluding that the ALJ’s RFC finding
“properly incorporated the limitations identified” by physicians and “to the extent
the ALJ’s RFC finding erroneously omitted” certain limitations, the error was
harmless); Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (“Whether or not
the ALJ erred in not including all of [the claimant’s] limitations in a hypothetical is
thus irrelevant given the other reliable evidence. Any error would have been
harmless.”).
AFFIRMED.
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