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 2021-03

Rachel English v. Andrew Saul ( 2021 )


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  •                            NOT FOR PUBLICATION                            FILED
UNITED STATES COURT OF APPEALS                        MAR 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RACHEL ENGLISH,                                  No.   18-56489
Plaintiff-Appellant,             D.C. No. 2:17-cv-03518-GW-AFM
v.
MEMORANDUM*
ANDREW SAUL, Commissioner Social
Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
George Wu, District Judge, Presiding
Submitted March 15, 2021**
San Francisco, California
Before: SILVERMAN, CHRISTEN, and R. NELSON, Circuit Judges.
Rachel English appeals the district court’s order affirming the Commissioner
of Social Security’s denial of her application for disability insurance benefits under
Title II and supplemental security income under Title XVI of the Social Security
*
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).
Act. We have jurisdiction under
    28 U.S.C. § 1291
     and
    42 U.S.C. § 405
    (g). We
review de novo, Attmore v. Colvin,
    827 F.3d 872
    , 875 (9th Cir. 2016), and we
affirm.1
The ALJ did not err at step two when he found that English did not have a
medically determinable impairment. A medically determinable impairment must
be established through medical evidence including “signs, symptoms, and
laboratory findings,” and “under no circumstances may the existence of an
impairment be established on the basis of symptoms alone.” Ukolov v. Barnhart,
    420 F.3d 1002
    , 1005 (9th Cir. 2005) (citation omitted); see also SSR 16-3p,
    82 Fed. Reg. 49462
    , 49464, 49467 (Oct. 25, 2017). The ALJ properly found that
English’s symptoms lacked support in the medical record as a whole, which
revealed English’s consistently normal test results and clinical findings, the lack of
any definitive diagnosis of endometriosis or thyroid problems, and refusal to
follow prescribed treatments or attend referral visits as recommended by her
physicians. The ALJ did not err by failing to discuss a jury excuse note identifying
English’s endometriosis because this note did not constitute objective medical
evidence and did not describe any clinical findings or laboratory results.
The ALJ properly afforded great weight to the opinion of impartial medical
expert Dr. John Morse, who testified at English’s hearing that he could not identify
1
English’s Motion to Expedite (Dkt. #14) is denied as moot.
2
any medically determinable impairment. Dr. Morse’s opinion was consistent with
the state agency consultant’s uncontroverted opinion that English did not have a
medically determinable impairment, and therefore constituted substantial evidence.
The ALJ did not err by discrediting English’s subjective symptom
testimony. The ALJ was not required to evaluate the extent to which English’s
symptoms interfered with her ability to perform basic work activities because
English’s symptom testimony alone was insufficient to establish the existence of a
medically determinable impairment. Nonetheless, the ALJ still provided clear and
convincing reasons to discount English’s testimony, including the fact that English
had exhibited poor effort during neurological testing, see Thomas v. Barnhart,
    278 F.3d 947
    , 959 (9th Cir. 2002), and declined to follow treatment recommendations
or take advantage of referrals, see Tommasetti v. Astrue,
    533 F.3d 1035
    , 1039 (9th
Cir. 2008).
AFFIRMED.
3