Aerni v. Barnhart

Ninth Circuit

Aerni v. Barnhart

136 F. App'x 68

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 15, 2005

DocketNo. 03-35948

StatusPublished

This text of 136 F. App'x 68 (Aerni v. Barnhart) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Aerni v. Barnhart, 136 F. App'x 68 (9th Cir. 2005).

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Opinion

ORDER AND MEMORANDUM**

Surviving spouse Teresa Aerni appeals an order of the district court upholding the denial of her late husband’s applications for Social Security disability insurance and supplemental security income benefits. Unpersuaded by Mrs. Aerni’s assertions of error, we affirm.

We conclude that the post-hearing letter written by L. Lee McCullough, M.D. does not undermine the substantial evidence supporting the decision denying benefits. See Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir.1993). The clinical and diagnostic results described in the letter dated only as far back as February, 2001, and failed to support Dr. McCullough’s opinion that Mr. Aerni had been unable to work since October, 1999. In addition, as the district court noted, the letter primarily “offered observations and objective evidence that the ALJ already had considered in his written decision.” The sole exception was Dr. McCullough’s description of a CT scan obtained in February, 2002, which did not “relate[] to the period on or before the date of the [ALJ] hearing” and therefore was not a proper addition to the record. See 20 C.F.R. § 404.970(b).

We also view the ALJ’s reasons for finding that Mr. Aerni had “limited credibility” — which reasons included the inconsistencies between Mr. Aerni’s testimony and his failure to follow a prescribed course of treatment, his daily activities, and the observations of his treating physicians — as sufficiently clear and convincing. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

Finally, we are not persuaded that the ALJ erred in finding that Mr. Aerni’s limitations did not prevent him from performing his past relevant work. As stated above, Dr. McCullough’s post-hearing letter, including its statement that Mr. Aerni “has a ten pound lift, push, pull, [and] carry limit,” does not undermine the substantial evidence supporting the denial of benefits.

AFFIRMED.

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ORDER AND MEMORANDUM**

Surviving spouse Teresa Aerni appeals an order of the district court upholding the denial of her late husband’s applications for Social Security disability insurance and supplemental security income benefits. Unpersuaded by Mrs. Aerni’s assertions of error, we affirm.

We conclude that the post-hearing letter written by L. Lee McCullough, M.D. does not undermine the substantial evidence supporting the decision denying benefits. See Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir.1993). The clinical and diagnostic results described in the letter dated only as far back as February, 2001, and failed to support Dr. McCullough’s opinion that Mr. Aerni had been unable to work since October, 1999. In addition, as the district court noted, the letter primarily “offered observations and objective evidence that the ALJ already had considered in his written decision.” The sole exception was Dr. McCullough’s description of a CT scan obtained in February, 2002, which did not “relate[] to the period on or before the date of the [ALJ] hearing” and therefore was not a proper addition to the record. See 20 C.F.R. § 404.970(b).

We also view the ALJ’s reasons for finding that Mr. Aerni had “limited credibility” — which reasons included the inconsistencies between Mr. Aerni’s testimony and his failure to follow a prescribed course of treatment, his daily activities, and the observations of his treating physicians — as sufficiently clear and convincing. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

Finally, we are not persuaded that the ALJ erred in finding that Mr. Aerni’s limitations did not prevent him from performing his past relevant work. As stated above, Dr. McCullough’s post-hearing letter, including its statement that Mr. Aerni “has a ten pound lift, push, pull, [and] carry limit,” does not undermine the substantial evidence supporting the denial of benefits.

AFFIRMED.

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