David Knibbs v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2018
• Docket: 16-35263
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID MITCHELL KNIBBS, No. 16-35263

Plaintiff-Appellant, D.C. No. 6:11-cv-06208-JE

v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted July 16, 2018** San Francisco, California

Before: LEAVY, TROTT, and TALLMAN, Circuit Judges.

David Knibbs appeals pro se the district court’s judgment affirming the

Administrative Law Judge’s (“ALJ”) denial of his application for child disability

benefits and supplemental security income under Titles II and XVI of the Social

* 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). Security Act. “We review the district court’s order . . . de novo, and reverse only if

the ALJ’s decision was not supported by substantial evidence in the record as a

whole or if the ALJ applied the wrong legal standard.” Molina v. Astrue, 674 F.3d

1104, 1110 (9th Cir. 2012) (internal citations omitted). We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

Knibbs contends that the district court erred in affirming the ALJ because he

claims the ALJ failed (1) to consider all of his impairments, including the

limitations caused by those impairments in the residual function capacity (“RFC”)

assessment, and (2) to identify specific, clear and convincing reasons for finding

Knibbs’s and his mother’s testimony less than credible. We disagree.1

Substantial record evidence supported the ALJ’s decision to take account of

credible limitations to formulate an RFC that did not depend on Knibbs’s

subjective complaints. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).

Furthermore, we need not address Knibbs’s undeveloped argument that he has

more than thirty supposed disabilities given the lack of specific evidence

1 Knibbs also makes various claims regarding missing records that support his claim of disability. Because he bears the burden of proof to provide evidence to support his claim, Mayes v. Massanari, 276 F.3d 453, 461–62 (9th Cir. 2001), those documents must be material, Wood v. Burwell, 837 F.3d 969, 977 (9th Cir. 2016), and issues must have been raised first in the district court to be considered on appeal, Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006), we dismiss those claims.

2 presented. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th

Cir. 2008).

As to the credibility findings, the ALJ did not rely solely on the absence of

objective medical evidence or a lack of medical training. Instead, the ALJ also

cited to other substantial evidence in the record, including specific and germane

inconsistencies between Knibbs’s and his mother’s testimony and the objective

medical evidence reports as well as Knibbs’s own reported activities. See Bayliss,

427 F.3d at 1217–18.

AFFIRMED.

3 FILED Knibbs v Berryhill, 16-35263 JUL 18 2018 Leavy, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I would reverse because the ALJ failed to articulate specific, clear and

convincing reasons for finding Knibbs’s symptom testimony less than fully

credible. The ALJ also failed to provide germane reasons for discounting Knibbs’s

mother's lay testimony. I would remand for further proceedings.