Elena Hughey v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 12, 2018
• Docket: 16-35894
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 12 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ELENA L. HUGHEY, No. 16-35894

Plaintiff-Appellant, D.C. No. 6:15-cv-01432-KI

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

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Garr M. King, District Judge, Presiding

Submitted September 10, 2018**

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges

Elena L. Hughey appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of Hughey’s application for disability

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

Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de

* 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). novo, Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), and we affirm.

1. “The ALJ has an affirmative responsibility to develop the record,

particularly . . . where the claimant is unrepresented.” Celaya v. Halter, 332 F.3d

1177, 1184 (9th Cir. 2003). However, this duty is triggered only when the

evidence is ambiguous or the ALJ finds that the record is inadequate. Tonapetyan

v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). If the duty is triggered, it can be

discharged by “subpoenaing the claimant’s physicians, submitting questions to the

claimant’s physicians, continuing the hearing, or keeping the record open after the

hearing to allow supplementation of the record.” Id. Here, the evidence was

adequate to review Hughey’s impairments, and no inadequacy or ambiguity

triggered the ALJ’s duty to further develop the record. See McLeod v. Astrue, 640

F.3d 881, 885 (9th Cir. 2011) (concluding that the ALJ’s duty to develop the

record is only triggered by inadequate or ambiguous evidence).

There were no inadequacies or ambiguities in the record regarding Hughey’s

physical impairments. Hughey’s epilepsy, breast cancer, vision issues, knee

problems, body aches, leg pain and swelling, headaches, and fatigue were all

discussed extensively in the record. To the extent Hughey’s treating, examining,

and non-examining physicians identified significant functional limitations, the ALJ

took these limitations into account and his conclusions were supported by

substantial evidence. See Molina, 674 F.3d at 1110 (explaining that we may only

2 16-35894 reverse “if the ALJ’s decision was not supported by substantial evidence” or

applied the wrong legal standard).

As to Hughey’s mental impairments, this case is not like Webb v. Barnhart,

where the ALJ relied on a medical record which reflected “obvious vicissitudes in

Webb’s health” to deny his claim at Step 2. 433 F.3d 683, 687 (9th Cir. 2005).

Here, the ALJ considered significant and generally consistent documentation of

Hughey’s mental health condition within a temporally connected record. As a

result, the duty to further develop the record was not triggered. See id.

Furthermore, the ALJ discharged any duty to develop the record regarding

Hughey’s mental health impairments by leaving the record open following the

hearing. See Tonapetyan, 242 F.3d at 1150.

2. The ALJ was not required to discuss evidence that was neither significant

nor probative. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012). Ms.

Strain’s assessments were consistent with other evidence showing that Hughey’s

mental health impairments were adequately treated with medication and therapy,

and that Hughey had managed her mental health impairments at work in the past.

Further, Ms. Strain’s assessments did not provide detail regarding Hughey’s

functional limitations caused by her mental impairments. Therefore, these

assessments were not probative, and the ALJ’s brief discussion of this evidence

was acceptable. See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)

3 16-35894 (The ALJ need not discuss all evidence in its decision, but must explain “why

significant probative evidence has been rejected.” (internal quotation marks

omitted)).

Hughey’s argument that the ALJ failed to discuss probative evidence from

Dr. Cook lacks adequate specificity for this Court to review, because Hughey fails

to identify any specific evidence in the record that the ALJ failed to discuss. See

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008)

(explaining that this Court will not review issues when the claimant fails to brief

them with any specificity).

AFFIRMED.

4 16-35894