Nellie Peebles v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELLIE J. PEEBLES, No. 19-35688
Plaintiff-Appellant, D.C. No. 3:18-cv-05728-BAT
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding
Submitted October 9, 2020**
Seattle, Washington
Before: HAWKINS, GILMAN,*** and CALLAHAN, Circuit Judges.
Nellie J. Peebles appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of her application for disability
*
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 Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We review the district court’s order de novo and the
Commissioner’s decision for substantial evidence and legal error. Attmore v.
Colvin, 827 F.3d 872, 875 (9th Cir. 2016). We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.1
1. Substantial evidence in the record supports the Administrative Law
Judge’s (ALJ’s) Step Two finding that Peebles lacked a diagnosis of psoriatic
arthritis. Peebles’s examining rheumatologist specifically determined that she
“does not have psoriatic arthritis,” and a notation suggesting otherwise appears to
have been based on Peebles’s own reports, rather than an independent medical
assessment. Because the evidence is, at most, “susceptible to more than one
interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion
must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Furthermore, even if the ALJ erred in not listing psoriatic arthritis as a severe
impairment, any such error was harmless because the ALJ accounted for Peebles’s
chronic pain symptoms in determining her residual functional capacity (RFC). See
Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (“Step Two is merely a
threshold determination meant to screen out weak claims [and] is not meant to
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Because the parties are familiar with the facts of this case, we do not discuss
them at length here.
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identify the impairments that should be taken into account when determining the
RFC.”).
2. The ALJ did not err in giving significant weight to the state medical
consultant’s opinion. True, the ALJ tempered the limitations recommended by the
consultant, but she did so in Peebles’s favor based on more recent evidence
suggesting that Peebles’s back pain had worsened since the consultant’s 2015
evaluation. Peebles proceeds to argue that she is considerably more limited than
the consultant’s opinion suggests, but the ALJ reasonably concluded that the
record did not support additional limitations.
3. The ALJ provided specific, clear, and convincing reasons for partially
discounting Peebles’s testimony regarding the intensity, persistence, and limiting
effects of her symptoms. See Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir.
2014). The ALJ first explained that the medical evidence did not support Peebles’s
allegations of disabling levels of pain. “While subjective pain testimony cannot be
rejected on the sole ground that it is not fully corroborated by medical evidence,
the medical evidence is still a relevant factor in determining the severity of the
claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857
(9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)). The ALJ also permissibly
determined that Peebles’s activities and conduct at the hearing belied her
testimony. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (“Even where
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[a claimant’s] activities suggest some difficulty functioning, they may be grounds
for discrediting [her] testimony to the extent that they contradict claims of a totally
debilitating impairment.”); Morgan v. Comm’r of Soc. Sec. Admin., 169 F. 3d 595,
600 (9th Cir. 1999) (“The inclusion of the ALJ’s personal observations does not
render the decision improper.” (citation omitted)). Taken together, these were
sufficient reasons to partially discount Peebles’s complaints of pain.
4. Peebles argues that the ALJ failed to include all her limitations when
assessing her RFC. But because substantial evidence supports the ALJ’s evaluation
of the medical record, and because the ALJ properly discounted Peebles’s
testimony regarding the severity of her symptoms, substantial evidence also
supports the ALJ’s RFC determination.
AFFIRMED.
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