Joelle Thayer v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 18, 2019
• Docket: 17-35199
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 18 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOELLE THAYER, No. 17-35199

Plaintiff-Appellant, D.C. No. 2:16-cv-00545-DWC

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

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington David W. Christel, Magistrate Judge, Presiding

Submitted January 16, 2019**

Before TROTT, SILVERMAN, and TALLMAN, Circuit Judges:

Joelle Thayer appeals the district court order affirming the Commissioner’s

denial of applications for disability benefits. We review the district court order 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 and the agency decision for legal error and substantial evidence. Garrison v.

Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014). We affirm.

The ALJ gave specific and legitimate reasons supported by substantial

evidence for giving less weight to some of the opinions of Anselem Parlatore,

Ph.D., who examined Thayer for state benefits. Widmark v. Barnhart, 454 F.3d

1063, 1066-67 (9th Cir. 2006) (requiring specific and legitimate reasons to give

less weight to controverted opinions). The record supports the ALJ’s findings that

the opinions were internally inconsistent, without any explanation for the

inconsistencies; inconsistent with clinical observations and testing; inconsistent

with treatment records and the record as a whole; and specifically premised on

Thayer’s statements, which the ALJ found to be unreliable and inconsistent with

other statements Thayer made in the record. An ALJ may give less weight to

opinions that are brief, conclusory and inadequately supported by clinical findings

or are inconsistent with examination or treatment records. Tommasetti v. Astrue,

533 F.3d 1035, 1041 (9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1216-17

(9th Cir. 2005); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Also, an

ALJ may give less weight to a mental health opinion when it relies “more heavily”

on self-reports than on clinical observations, particularly when the ALJ properly

2 discounts the claimant’s testimony as not credible. Buck v. Berryhill, 869 F.3d

1040, 1049 (9th Cir. 2017).

The ALJ also gave specific and legitimate reasons supported by substantial

evidence for giving less weight to the opinions of David Myers, Ph.D.,1 who

reviewed the record and testified at the hearing. Dr. Myers relied on the properly

discounted, unsupported opinions of Dr. Parlatore. In addition, as the ALJ found,

Dr. Meyers conceded that his opinions were inconsistent with Thayer’s past work

history.

We decline to address Thayer’s challenge to the ALJ’s treatment of other

reviewing opinions. Thayer waived the argument by not raising it to the district

court and waived any arguments regarding exceptional circumstances by not

addressing waiver in her opening brief. Greger v. Barnhart, 464 F.3d 968, 973

(9th Cir. 2006); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th

Cir. 2009).

AFFIRMED.

1 Dr. Myers’s name is spelled in various ways throughout the record. “David A. Myers, Ph.D.” is how it appears in his resume. 3