Frederick Rebensdorf v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2019
• Docket: 18-35305
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FREDERICK LARRY REBENSDORF, No. 18-35305

Plaintiff-Appellant, D.C. No. 3:16-cv-01619-SB

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

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding

Submitted May 13, 2019** Portland, Oregon

Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.

Frederick Rebensdorf appeals the district court’s order affirming the

Commissioner of Social Security’s denial of his application for disability insurance

benefits under Title II of the Social Security Act. We review the district court’s

* 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). order de novo and reverse only if the Administrative Law Judge’s (“ALJ”)

“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). “[W]e may not reverse an ALJ’s decision on account of an error

that is harmless.” Id. at 1111. We affirm.

First, the ALJ did not err in discounting Rebensdorf’s testimony regarding

the severity of his impairments. Testimony from multiple sources indicated that

Rebensdorf’s pain symptoms were inconsistent with objective findings and that

Rebensdorf exaggerated his pain. See Batson v. Comm’r of Soc. Sec. Admin., 359

F.3d 1190, 1196 (9th Cir. 2004); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th

Cir. 1997) as amended on reh’g (Sept. 17, 1997) (explaining that an ALJ can take

into consideration “testimony from physicians and third parties concerning the

nature, severity, and effect of the symptoms of which [the claimant] complains”).

These were specific, clear, and convincing reasons for finding Rebensdorf’s

testimony only partially credible. See Morgan v. Comm’r of Soc. Sec. Admin., 169

F.3d 595, 599–600 (9th Cir. 1999). “When evidence reasonably supports either

confirming or reversing the ALJ’s decision, we may not substitute our judgment

for that of the ALJ.” Batson, 359 F.3d at 1196.

Second, the ALJ did not err in discounting the contradicted medical opinion

evidence of Rebensdorf’s examining physician, Dr. Ogisu, and treating physician,

2 Dr. Gillingham. The ALJ provided specific and legitimate reasons for assigning

Dr. Ogisu’s contradicted opinion “little weight.” See Lester v. Chater, 81 F.3d

821, 830–31 (9th Cir. 1995) as amended (April 9, 1996). As Dr. Ogisu himself

noted, his findings pertained to Rebensdorf’s present, rather than long term,

impairment, as an injury had exacerbated his condition, but was expected to

improve in one to two weeks, far less than the requisite “continuous period of not

less than 12 months.” See 42 U.S.C. § 1382c(a)(3)(A). The ALJ was not required

to recontact Dr. Ogisu because the medical record was sufficient to make a

disability determination. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.

2005).

The ALJ similarly provided the following specific and legitimate reasons for

discounting treating physician Dr. Gillingham’s opinion: 1) he is a family

practitioner and his opinion did not square with Dr. Brahms’s, who is an

orthopedic specialist; 2) his opinion was inconsistent with imaging reports and

examination results and was unsupported by any EMG results; and 3) his opinion

did not properly account for Rebensdorf’s inconsistencies and exaggerations. See

Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001).

Third, for many of the same reasons, the ALJ did not commit reversible

error in discounting the testimony of lay witness Marcella Kroger, Rebensdorf’s

wife, regarding Rebensdorf’s limitations and capabilities. Kroger’s testimony as to

3 Rebensdorf’s pain symptoms was inconsistent with the medical evidence,

including imaging reports and examination results that, as interpreted by Dr.

Brahms, showed only mild impairment. Lewis v. Apfel, 236 F.3d 503, 511 (9th

Cir. 2001). Although Kroger’s interest in the case, as a family member, was not a

germane reason to discount her testimony, the ALJ’s error as to this additional

reason was harmless. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685,

694 (9th Cir. 2009).

Fourth, the ALJ did not err in assigning the Veterans Administration’s

(“VA”) 100% disability rating “little weight.” “[A]n ALJ must ordinarily give

great weight to a VA determination of disability,” but an “ALJ may give less

weight to a VA disability rating if he gives persuasive, specific, valid reasons for

doing so that are supported by the record.” McCartey v. Massanari, 298 F.3d

1072, 1076 (9th Cir. 2002).

The ALJ found that the VA’s determination was (1) incomplete, because the

VA’s determination did not reflect imaging of the claimant’s head or spine; (2)

inconsistent with examination results showing no motor deficits; and (3)

inconsistent with the claimant’s only routine and conservative mental health

treatment as well as notes indicating the claimant’s mental health symptoms were

at least somewhat controlled with medication. These reasons undermine the VA’s

disability rating. See Valentine, 574 F.3d at 695.

4 Finally, the ALJ did not err in relying on the testimony of a vocational

expert (“VE”) at step five of the sequential analysis. The ALJ properly asked the

VE a hypothetical that captured those functional limitations that the ALJ found

supported by substantial evidence. See Roberts v. Shalala, 66 F.3d 179, 184 (9th

Cir. 1995). We reject Rebensdorf’s argument that the ALJ failed to reconcile a

conflict between the Dictionary of Occupational Titles (“DOT”) and the VE’s

testimony, because, contrary to Rebensdorf’s argument, not all jobs classified as

“light work” require six hours of standing or walking per day. SSR 00–4P, 2000

WL 1898704, at *3 (“The DOT lists maximum requirements of occupations as

generally performed, not the range of requirements of a particular job as it is

performed in specific settings. A [vocational expert] . . . may be able to provide

more specific information about jobs or occupations than the DOT.”). The VE

thus permissibly reduced the number of jobs available to an individual with the

limitations outlined in the ALJ’s hypothetical, and the ALJ did not err in relying on

those reduced numbers. Further, for the reasons outlined above, the ALJ did not

err in omitting additional limitations. See Stubbs-Danielson v. Astrue, 539 F.3d

1169, 1174–76 (9th Cir. 2008).

AFFIRMED.