David Belcher v. Nancy Berryhill

707 F. App'x 439

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 2017
• Docket: 14-36005
• Status: Unpublished

Opinion

MEMORANDUM **

David Belcher appeals the district court’s decision affirming the Commissioner of Social Security’s denial of Belcher’s application for supplemental security income under Title XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and we affirm.

The ALJ provided specific and legitimate reasons supported by substantial evidence for rejecting Dr. Ogilvie’s June 2010 opinion. The opinion was inconsistent with Dr. Ogilvie’s own treatment records and clinical findings and with Belcher’s daily activities. Id. at 1161-62.

The ALJ gave germane reasons supported by substantial evidence for rejecting Ms. Biggerstaffs March 2011 opinion. Ms. Biggerstaffs opinion was inconsistent with medical records and Belcher’s activities, and was inadequately explained. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).

The ALJ provided several clear and convincing reasons for finding that Belcher’s pain and symptom testimony was not credible. Belcher’s testimony was inconsistent with the objective medical evidence and his daily activities, and Bel- cher’s neck problems were not linked to a medically determinable impairment. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012); Ukolov v. Barnhart, 420 F.3d 1002, 1004-06 (9th Cir. 2005).

The ALJ gave a germane reason supported by substantial evidence for rejecting the lay testimony of Ms. White. Specifically, her testimony was inconsistent with the medical record. See Bayliss, 427 F.3d at 1218.

The ALJ erred by not specifically asking the Vocational Expert (VE) whether her testimony was consistent with the Dictionary of Occupational Titles (DOT). See Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). However, the error was harmless because there was no conflict between the VE’s testimony and the DOT. Id. at 1153 n.19.

Finally, we decline to remand for the ALJ to consider the new evidence submitted to and considered by the Appeals Council. The new evidence is part of the record, see Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012), and supports the ALJ’s decision.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.