Lynnette Green v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYNNETTE E. GREEN, No. 15-35694
Plaintiff-Appellant, D.C. No. 2:14-cv-01487-MAT
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted April 19, 2018**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
Judges
Lynnette Green appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Green’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
*
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).
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015),
and we affirm.
We cannot review the ALJ’s determination that the relevant period for this
application began on June 19, 2009, because the ALJ decided not to reopen
Green’s previous disability denial. See Klemm v. Astrue, 543 F.3d 1139, 1144-45
(9th Cir. 2008) (concluding that we cannot review the ALJ’s decision not to open a
prior disability denial unless there is a colorable constitutional claim of a due
process violation). Green does not argue in her opening brief that we have
jurisdiction to consider the ALJ’s refusal to reopen her prior claim because it raises
a colorable constitutional claim of denial of due process. See Carmickle v.
Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (explaining
that we will not address issues that are not specifically raised in the opening brief).
The ALJ was not required to discuss earlier evidence that was not probative of
Green’s condition during the relevant period for this application. See Hiler v.
Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (explaining that the ALJ does not need
to discuss evidence that is neither significant nor probative).
The ALJ provided several specific and legitimate reasons to reject the
opinion of treating physician Dr. Sargent, including that the opinion predated the
relevant period, that Green’s activities were inconsistent with the opinion, and that
2 15-35694
a gap in treatment was inconsistent with the alleged severity of Green’s limitations.
See Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014) (including
frequency of examination and inconsistency with claimant’s activities in the
factors that the ALJ may consider in weighing a treating physician’s opinion);
Carmickle, 533 F.3d at 1165 (concluding that medical opinions that predate the
relevant period are of limited relevance). Any error in relying on additional
reasons was harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
(explaining that error is harmless if it is inconsequential to the ultimate
nondisability determination).
The ALJ properly rejected Dr. Herman’s opinion based on specific and
legitimate reasons, including lack of clinical support for Dr. Herman’s opinion
prior to March 2011, inconsistency with the treatment record, and inconsistency
with Green’s activities. See Ghanim, 763 F.3d at 1161-62 (inconsistency with the
treatment record and with claimant’s activities); Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (inadequate support from clinical
findings). Any error in relying on additional reasons is harmless. See Molina, 674
F.3d at 1115.
The ALJ provided germane reasons to reject the opinion of Physician’s
Assistant Ms. Ellis, including inconsistency with Green’s activities and
inconsistency with Green’s own testimony regarding her pain levels. See
3 15-35694
Carmickle, 533 F.3d at 1164 (inconsistency with claimant’s activities is a germane
reason to reject lay testimony); Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001)
(inconsistency with the claimant’s own testimony is a germane reason to reject lay
testimony).
The ALJ properly rejected Dr. Moore’s opinion based on specific and
legitimate reasons, including inconsistency with Dr. Moore’s own clinical findings
and inconsistency with the treatment record. See Tommasetti v. Astrue, 533 F.3d
1035, 1041 (9th Cir. 2008) (concluding that the ALJ properly rejected a treating
physician’s opinion based on inconsistencies with the medical record and
inconsistencies with the treating physician’s own treatment notes). Any error in
relying on additional reasons is harmless. See Molina, 674 F.3d at 1115.
The ALJ provided specific and legitimate reasons to reject Dr. Washburn’s
opinion, including inconsistency with Dr. Washburn’s own mental status
examination findings, inconsistency with Green’s activities, and inconsistency with
other evidence in the medical record. See Ghanim, 763 F.3d at 1162
(inconsistency with the claimant’s activities and other evidence in the record);
Tommasetti, 533 F.3d at 1041 (inconsistency between a physician’s opinion and
treatment notes).
The ALJ properly rejected Ms. Falsetto’s opinion as inconsistent with the
medical record. See Molina, 674 F.3d at 1112 (concluding that inconsistency with
4 15-35694
other medical records is a germane reason to reject the opinion of a non-acceptable
medical source).
Green waived the issue of whether the ALJ erred by concluding that her
carpal tunnel syndrome was non-severe based on Dr. Riel’s opinion by failing to
raise it before the district court. Ghanim, 763 F.3d at 1160 (concluding that the
claimant waived an issue by failing to raise it before the district court).
The ALJ properly incorporated all relevant limitations from Dr. Gaffield and
Dr. Pepka’s opinions into the residual functional capacity (RFC). See Stubbs-
Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (concluding that the ALJ
does not err in assessing the RFC when the ALJ reasonably includes all limitations
supported by the medical record).
Substantial evidence supports the ALJ’s review of the opinions of Dr. Choi
and Dr. Fligstein. See Tommasetti, 533 F.3d at 1041 (explaining that “the ALJ is
the final arbiter with respect to resolving ambiguities” in the medical record).
The ALJ properly discredited Green’s testimony based on clear and
convincing reasons supported by substantial evidence. Green’s testimony was
inconsistent with the objective medical evidence, Green’s testimony was
inconsistent with her daily activities, and the alleged severity of Green’s symptoms
was inconsistent with conservative and routine treatment. See Tommasetti, 533
F.3d at 1039-40 (concluding that the ALJ properly discredited claimant testimony
5 15-35694
based on inconsistencies with the objective medical evidence and a conservative
treatment record); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (explaining
that the ALJ properly rejected claimant testimony based on inconsistencies with
the claimant’s activities). The ALJ did not err by failing to make findings
regarding transferability of Green’s activities to work. See Orn, 495 F.3d at 639
(explaining that the ALJ can properly discredit claimant testimony either because
the claimant’s activities are inconsistent with the claimant’s other testimony or
because the activities show skills that are transferrable to work). Any error in
relying on additional reasons is harmless. See Bray, 554 F.3d at 1227 (concluding
that the ALJ’s error in relying on invalid reasons to discredit claimant testimony
was harmless because the ALJ also provided other clear and convincing reasons to
discredit claimant testimony).
The ALJ properly include all limitations supported by substantial evidence
in the RFC and the hypothetical posed to the vocational expert, and Green fails to
raise any additional issue by restating her arguments regarding the ALJ’s
assessment of the medical record. Stubbs-Danielson, 539 F.3d at 1175-76.
AFFIRMED.
6 15-35694