Glen George v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2018
• Docket: 15-35348
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 26 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GLEN GEORGE, No. 15-35348

Plaintiff-Appellant, D.C. No. 3:13-CV-1505-AC

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 March 22, 2018**

Before: FARRIS, CANBY, and LEAVY, Circuit Judges.

Glen George appeals the district court’s affirmance of the Commissioner of

Social Security’s denial of his application for disability insurance benefits under

Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291

* 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). and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875

(9th Cir. 2016), and we affirm.

The administrative law judge (“ALJ”) did not err by affording more weight

to examining psychologist Dr. Bates-Smith’s opinion and discounting treating

psychologist Dr. Smurthwaite’s opinion. Although George contends the ALJ was

required to proffer clear and convincing reasons for rejecting portions of Dr.

Smurthwaite’s opinion because his assessment of George was uncontradicted,

George did not raise this argument in the district court. Therefore, the Court need

not consider this argument on appeal. See Sandgathe v. Chater, 108 F.3d 978, 980

(9th Cir. 1997) (per curiam).

Even if this argument were properly before the Court, it lacks merit, as the

record shows Dr. Smurthwaite’s opinion was contradicted. Dr. Smurthwaite’s

opinion diverges from that of Dr. Bates-Smith concerning George’s ability to

complete simple tasks. While Dr. Bates-Smith concluded George had no

limitations concerning his ability to carry out simple instructions, Dr. Smurthwaite

opined George would need long, frequent breaks from even a simple, routine job.

As a result, the ALJ was only required to provide specific and legitimate reasons

supported by substantial evidence for discounting Dr. Smurthwaite’s opinion. See

Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017).

2 In addition, the reasons the ALJ provided for rejecting portions of Dr.

Smurthwaite’s opinion fulfill either standard of review. The ALJ stated there were

inconsistencies between Dr. Smurthwaite’s opinion and George’s reported daily

activities, Dr. Smurthwaite had not performed a formal psychological evaluation of

George, and Dr. Smurthwaite’s opinion was “speculative” and based on George’s

subjective reports. These reasons are legally valid and supported by substantial

evidence in the record. See Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595,

601 (9th Cir. 1999); Chaudry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012);

Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995).

The ALJ did not err in discounting George’s testimony concerning the extent

of his symptoms and their limiting effects. The ALJ applied the requisite two-step

framework and cited specific, clear, and convincing reasons for discounting

portions of George’s testimony. See Trevizo, 871 F.3d at 678. The ALJ cited the

fact that the objective medical evidence did not support George’s testimony, the

inconsistencies between George’s testimony and the medical opinions in the

record, inconsistencies between George’s alleged symptoms and reported daily

activities, and the effectiveness of George’s prescribed treatments.

George takes issue with other reasons the ALJ enumerated for rejecting his

testimony, such as the ALJ’s comments that “not all treatment options have been

3 explored” and that George’s ability to chart his moods and behaviors indicated

some level of persistence, contrary to his testimony. Even if the ALJ erred in

relying on these grounds, any error was harmless, as the other reasons the ALJ

provided for discounting George’s testimony are supported by substantial

evidence. See Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir.

2009).

Contrary to George’s assertions, the ALJ’s Step Five findings are supported

by substantial evidence. The ALJ relied upon the Medical-Vocational Guidelines

(“Grids”), rather than calling upon a vocational expert to testify, to determine

George was able to engage in work that exists in significant numbers in the

national economy. George argues the limitations in his residual functional capacity

(“RFC”) concerning social contact and performing simple tasks significantly

detract from the base of occupations he could perform as represented by the Grids,

and therefore the ALJ erred by not hearing testimony from a vocational expert.

However, the Grids encompass only unskilled work, which by definition involves

only simple tasks and usually does not entail extensive personal contact. See 20

C.F.R. § 404.1568(a); S.S.R. 85-15, 1985 WL 56857, at *3; Terry v. Sullivan, 903

F.2d 1273, 1276-77 (9th Cir. 1990). Consequently, George’s limitations would not

significantly affect the base of unskilled work he could perform.

4 George also contends that multiple nonexertional impairments may

substantially reduce the number of jobs available, even if those impairments

considered singly would not. He argues restricting him to positions that involve

little contact with supervisors or coworkers would require him to take positions

that require independence and complex decision-making. However, in George’s

case, the Grids account for his nonexertional limitations. Because the Grids only

include unskilled jobs, these positions are limited to simple duties and do not

necessitate complex decision-making because, by definition, they require “little or

no judgment.” See 20 C.F.R. § 404.1568(a). Thus, the Grids provide substantial

evidentiary support for the ALJ’s Step Five findings.

AFFIRMED.