Bay Mar v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 2 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BAY MAR, for Anthony Mar (deceased), No. 19-56147
Plaintiff-Appellant, D.C. No.
3:18-cv-01015-W-JLB
v.
ANDREW M. SAUL, Commissioner of MEMORANDUM*
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted February 4, 2021**
Pasadena, California
Before: GOULD, LEE, and VANDYKE, Circuit Judges.
Appellant Bay Mar (“Appellant”) appeals the district court’s affirmance of the
denial of Anthony Mar’s (“Claimant”) social security benefits. Because the parties
are familiar with the facts and procedural history of the case, we recite only those
*
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).
facts necessary to decide this appeal. We have jurisdiction of this appeal under 28
U.S.C. § 1291, and we affirm.
In 2014, Anthony Mar applied for Disability Insurance Benefits under Title II
of the Social Security Act (“Act”). His application was initially denied, and it was
denied again on reconsideration. Claimant died in July 2016. Since then, his wife,
Bay Mar, has continued to pursue the matter. In April 2017, the ALJ determined
Claimant was not disabled under the Act. In March 2018, the Appeals Council
denied Appellant’s request for administrative review.
Seeking judicial review, Appellant brought an action in the United States
District Court for the Southern District of California. A magistrate judge issued a
report and recommendation recommending the district court affirm the
Commissioner’s decision. The district court adopted the report and
recommendation. This appeal followed.
“On judicial review, an ALJ’s factual findings . . . [are] ‘conclusive’ if
supported by ‘substantial evidence.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1153
(2019) (citation and quotation marks omitted). The substantial evidence threshold
“is not high,” id. at 1154, and “defers to the presiding ALJ, who has seen the hearing
up close.” Id. at 1157. The substantial evidence standard is even less demanding
than the “clearly erroneous” standard that governs appellate review of district court
fact-finding. Dickinson v. Zurko, 527 U.S. 150, 152–53 (1999).
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“Substantial evidence means more than a scintilla but less than a
preponderance.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citation
omitted). Under longstanding precedent, substantial evidence “means—and means
only—‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Biestek, 139 S. Ct. at 1154 (citation omitted). “Where
evidence is susceptible to more than one rational interpretation, it is the
[Commissioner’s] conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d
676, 679 (9th Cir. 2005).
For the following reasons, we affirm the decision of the district court. First,
the ALJ did not err by not considering Claimant’s post-2014 medical records. The
ALJ considered all the evidence of medical impairments, dated before and after
2014.
Second, the ALJ did not err in its consideration of Claimant’s mental
functioning. The ALJ considered the medical opinions supporting Claimant’s
position, and gave legitimate reasons, supported by substantial evidence, for the
ALJ’s conclusion that these opinions deserved less than full weight and did not prove
that Claimant had a severe mental impairment. Substantial evidence supports the
ALJ’s analysis of the opinions of Dr. Henderson and Dr. Lessner, and the ALJ
properly resolved conflicting evidence to find that Claimant did not have a severe
mental impairment.
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Third, the ALJ properly considered Claimant’s physical functioning. The
ALJ properly considered Dr. Lin’s letter discussing Claimant’s vision. The ALJ also
properly used a medical expert to help transform visual acuity measurements in
Claimant’s treatment notes into specific functional limitations. The ALJ also
properly considered Dr. Gelber’s testimony. The ALJ properly evaluated the
evidence arising from the physicians concerning Claimant’s physical limitations.
Appellant has not shown error.
Fourth, the ALJ did not err by discounting Claimant’s testimony and
Appellant’s lay testimony. The ALJ properly analyzed the statements of Claimant
and of Appellant. And the ALJ gave valid reasons for concluding that these
statements deserved less than full weight. Appellant has not identified any error,
and the ALJ’s finding is supported by substantial evidence.
Fifth, the ALJ properly obtained and interpreted testimony from the
vocational experts. The record shows that the ALJ gave Appellant the opportunity
to develop vocational evidence favorable to her case. Further, the ALJ held a second
hearing to allow for medical expert testimony at Appellant’s request.
Even more, Appellant’s argument that the ALJ should have included further
limitations in the hypothetical questions posed to the vocational expert (“VE”) is
incorrect. Substantial evidence supports the limitations in the RFC, and the ALJ
properly asked the VE to consider a hypothetical person with those limitations.
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AFFIRMED.
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