Mike Gopher v. Carolyn W. Colvin , 572 F. App'x 478 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 05 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MIKE GOPHER, No. 12-35210
Plaintiff - Appellant, D.C. No. 4:11-cv-00018-RKS
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Keith Strong, Magistrate Judge, Presiding
Submitted December 17, 2013**
San Francisco, California
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Mike Gopher appeals the district court’s summary judgment order affirming
the Commissioner of Social Security’s decision denying his application for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
supplemental security income under Title XVI of the Social Security Act. Gopher
contends that in assessing his residual functional capacity, the administrative law
judge (“ALJ”) failed to accord proper weight to two physicians’ opinions. He also
contends that the ALJ erred in assessing the credibility of his statements
concerning his symptoms. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
We review the district court’s order de novo. Molina v. Astrue, 674 F.3d
1104, 1110 (9th Cir. 2012). We may set aside the denial of benefits only if it is not
supported by substantial evidence or is based on legal error. Id.
The ALJ properly assessed the opinions of Drs. Paul Donaldson and Ernest
Gray. In contrast to Dr. Donaldson, an examining physician who opined that
Gopher could be “on his feet” for possibly two to three hours in an eight-hour work
day, the ALJ found that Gopher could stand or walk for about six hours in an eight-
hour work day. The ALJ’s reasoning that the amount of time Gopher could be “on
his feet” was immaterial is clear and convincing, given that “the claimant’s
determined residual capacity incorporate[d] the claimant’s need to be off his feet,
at will, if needed.” See Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
In addition, any error was harmless because two of the jobs the ALJ found Gopher
capable of performing were sedentary jobs, which require only occasional walking
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and standing. See 20 C.F.R. § 416.967(a); Molina, 674 F.3d at 1111, 1122. The
ALJ did not err in concluding that Dr. Gray, who did not have an ongoing, regular
patient-physician relationship with Gopher, was not a treating physician. See 20
C.F.R. § 416.927(c). Any error in the ALJ’s rejection without explanation of Dr.
Gray’s statements regarding the amount of time Gopher could stand or walk was
harmless because Dr. Gray’s statements were illogical and the apparent result of
his misreading of a form. See Molina, 674 F.3d at 1111, 1122.
The ALJ also properly assessed Gopher’s credibility. He offered specific,
clear and convincing reasons for rejecting some of Gopher’s statements regarding
the intensity, persistence, and limiting effects of his symptoms by explaining that
the medical records showed that with treatment, Gopher’s pain lessened and his
ability to walk improved. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th
Cir. 2007); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.
2006); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195–97 (9th Cir.
2004).
AFFIRMED.
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