Joshua Woolery v. Andrew Saul ( 2021 )

FILED
NOT FOR PUBLICATION
FEB 11 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA R. L. WOOLERY, No. 19-35959
Plaintiff-Appellant, D.C. No. 2:18-cv-01533-MAT
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted February 3, 2021**
Seattle, Washington
Before: GRABER, McKEOWN, and PAEZ, Circuit Judges.
Claimant Joshua Woolery appeals the district court’s judgment affirming the
Commissioner of Social Security’s decision to deny his claim for benefits.
*
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 for substantial evidence the Administrative Law Judge’s ("ALJ")
factual findings, Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019), we affirm.
1. Substantial evidence supports the ALJ’s weighing of the medical
evidence because one examining psychologist, two nonexamining psychologists,
and an employment consultant each opined that Claimant was capable of working.
See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (holding that
nonexamining physicians’ opinions may "serve as substantial evidence when the
opinions are consistent with independent clinical findings or other evidence in the
record"). Claimant’s argument that several examining psychologists, other
nonexamining psychologists, and a treating therapist reached the contrary
conclusion does not change the fact that "more than a mere scintilla [of evidence],
but less than a preponderance"—that is, substantial evidence, Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006)—supports the ALJ’s assessment.1 The
ALJ permissibly discounted Claimant’s preferred psychologists’ opinions by
"setting out a detailed and thorough summary of the facts and conflicting clinical
evidence, stating h[er] interpretation thereof, and making findings." Magallanes v.
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Claimant’s therapist is not an "acceptable medical source," and the ALJ
need only provide germane reasons for discounting the therapist’s opinions. See
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); see also 20 C.F.R.
§§ 416.902(a), 416.927(f).
2
Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks omitted). As
long as substantial evidence supports the ALJ’s findings, it is for the ALJ to weigh
competing medical evidence. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d
1090, 1098 (9th Cir. 2014).
2. The ALJ provided "specific, clear and convincing reasons," Burrell v.
Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (internal quotation marks omitted),
for concluding that "[C]laimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely consistent with the medical
evidence and other evidence in the record." Plaintiff, for example, argues that he
struggled to do basic volunteer work at a food bank while supervised by an
employment consultant. The ALJ permissibly noted that (1) the consultant gave
Claimant positive reviews and (2) Claimant previously testified that he had no
trouble with that work because it was simple. See Smolen v. Chater, 80 F.3d 1273,
1284 (9th Cir. 1996) (holding that an ALJ may use "ordinary techniques of
credibility evaluation"). The ALJ also permissibly noted that Claimant received a
fair review of his volunteer painting work, despite Claimant’s testimony to the
contrary. See Burrell, 775 F.3d at 1137 ("Inconsistencies between a claimant’s
testimony and the claimant’s reported activities provide a valid reason for an
adverse credibility determination.").
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3. The ALJ provided the requisite "germane reasons for discrediting the
testimony of lay witnesses." Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir.
2005). The ALJ permissibly noted that (1) the assessment from Claimant’s high
school was dated; (2) the record contradicted parts of Claimant’s father’s
statements that Claimant lacked social skills, follow-through, and the ability to
work independently; and (3) the employment consultant stated recommendations,
rather than imperatives.
4. Because substantial evidence supports the ALJ’s conclusions regarding
evidence from witnesses and Claimant, we see no error in the ALJ’s residual
functional capacity ("RFC") determination or in the hypothetical posed to the
vocational expert. See Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1987)
(holding that the ALJ is "free to accept or reject" additional restrictions proposed
by a claimant’s lawyer so long as the ALJ’s final determination is "supported by
substantial evidence"). Under our precedents, it matters not that substantial
evidence may well support an RFC that includes greater limitations, too. See
Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995) ("If
the evidence can reasonably support either affirming or reversing the Secretary’s
conclusion, the court may not substitute its judgment for that of the Secretary.").
AFFIRMED.
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