Luis Valdez v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS VALDEZ, No. 17-35407
Plaintiff-Appellant, D.C. No. 1:15-cv-03151-MKD
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Mary K. Dimke, Magistrate Judge, Presiding
Submitted August 14, 2018**
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
Luis Valdez appeals the district court’s decision affirming the Commissioner
of Social Security’s denial of Valdez’s application for supplemental security
income under Title XVI of the Social Security Act. We review de novo, Garrison
v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014), and we affirm.
*
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 ALJ properly provided clear and convincing reasons supported by
substantial evidence to discredit Valdez’s testimony. See Garrison, 759 F.3d at
1014-15 (standard of review). First, substantial evidence supports the ALJ’s
reasoning that the medical evidence did not support Valdez’s testimony. See
Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (explaining that the ALJ may
properly include lack of supporting medical evidence in the reasons to discredit
claimant testimony as long as it is not the only reason). The ALJ reasonably
concluded that the medical evidence as a whole supported only relatively mild
mental health limitations and only mild to moderate degenerative changes in
Valdez’s spine. Second, the ALJ reasonably identified Valdez’s specific testimony
as to his need to lie down during the day and his limitations in social interaction
and concentration as inconsistent with Valdez’s activities as actually performed,
including playing sports, living in a shelter with others, visiting the library, and
reading the newspaper. See Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir.
2015) (requiring the ALJ to make specific findings as to what evidence discredits
what testimony); Garrison, 759 F.3d at 1016 (explaining that a claimant’s
activities are a valid basis to discredit their testimony only when the activities as
actually performed are inconsistent with the testimony). Any error in relying on
additional reasons was harmless. See Carmickle v. Comm’r, Soc. Sec. Admin., 533
F.3d 1155, 1162 (9th Cir. 2008).
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The ALJ provided specific and legitimate reasons to reject treating
psychiatrist Dr. Rodenberger’s opinion, including inconsistency with objective
medical evidence in the record and lack of support by Dr. Rodenberger’s own
clinical findings. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)
(inconsistency with objective medical evidence); Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005) (lack of support by clinical findings). Substantial
evidence supports the ALJ’s conclusion that Dr. Rodenberger’s phrase “stably
unstable” was too vague to support his opinion.
The ALJ properly rejected examining psychologist Dr. Moon’s opinion
because it was (1) inconsistent with the longitudinal record of Valdez’s conditions,
and (2) it relied on Valdez’s untrustworthy self-reports. See Bray v. Comm’r of
Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (concluding that the ALJ
may properly reject the opinion of a treating physician that relies on a claimant’s
unreliable self-reports); Tommasetti, 533 F.3d at 1041 (ALJ may reject medical
opinion that is inconsistent with objective medical evidence). While Dr. Moon
conducted a clinical interview and mental status examination, Dr. Moon’s report
explicitly indicated that it relied on Valdez’s self-report in assessing specific
functional limitations.
The ALJ properly rejected the opinions provided for Washington State
Department of Social & Health Services by several examining social workers as
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inconsistent with the longitudinal record. See Molina v. Astrue, 674 F.3d 1104,
1112 (9th Cir. 2012) (concluding that inconsistency with objective medical
evidence is a germane reason to reject non-acceptable medical opinions). Because
no evidence showed that Ms. Vaagen and Mr. Moen acted under close supervision
of a treating psychiatrist, the ALJ was not required to provide specific and
legitimate reasons to reject their opinions. See Molina, 674 F.3d at 1111
(reasoning that a non-acceptable medical source should not be treated as an
acceptable medical source when no evidence shows that they acted under close
supervision of a physician).
The ALJ properly rejected opinions as to Valdez’s physical limitations from
his treating Nurse Practitioners because of a lack of supporting medical evidence
and reliance on Valdez’s self-reports. See Molina, 674 F.3d at 1112 (inconsistency
with medical evidence is a germane reason to reject non-acceptable medical
opinions); Bray, 554 F.3d at 1228 (concluding that the ALJ may properly reject the
opinion of a treating physician that relies on a claimant’s unreliable self-reports).
Any error in failing to discuss the opinions of non-examining psychologists
Dr. Eisenhauer and Dr. Covell was harmless because the ALJ properly rejected the
only medical evidence that Dr. Eisenhauer and Dr. Covell relied on. See Molina,
674 F.3d at 1115 (this court should not remand on account of harmless error);
Bayliss, 427 F.3d at 1216 (9th Cir. 2005) (“an ALJ need not accept the opinion of a
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doctor if that opinion is . . . inadequately supported by clinical findings” (citation
omitted)).
The ALJ properly reviewed the remaining medical evidence, and substantial
evidence supports the ALJ’s conclusion giving greatest weight to the opinions of
Drs. Dougherty, Gentile, and Beaty. By limiting Valdez to simple instructions and
work that requires only occasional changes, the ALJ reasonably assessed specific
functional limitations consistent with the record as a whole, including Dr. Gentile’s
opinion that Valdez’s attention would wane episodically. See Stubbs-Danielson v.
Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (reasoning that the ALJ was not
required to reject a medical opinion where the RFC reasonably assessed specific
functional limitations that adequately accounted for the opinion).
AFFIRMED.
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