Kellie Harrington v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2021
• Docket: 20-35140
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 15 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KELLIE K. HARRINGTON, No. 20-35140

Plaintiff-Appellant, D.C. No. 3:19-cv-05159-MAT

v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Mary Alice Theiler, Magistrate Judge, Presiding

Submitted May 3, 2021** Seattle, Washington

Before: CHRISTEN and BENNETT, Circuit Judges, and FRIEDMAN,*** District Judge.

* 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). *** The Honorable Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation. Appellant Kellie Harrington appeals the district court’s order affirming the

denial of her application for Title II Social Security benefits. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm. We review de novo and reverse only

if the decision “is either not supported by substantial evidence or is based upon

legal error.” Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). Because the

parties are familiar with the facts of the case, we recite only those necessary to

resolve the issues on appeal.

1. The ALJ complied with the rule of mandate. See Stacy v. Colvin, 825

F.3d 563, 568 (9th Cir. 2016). The mandate required the ALJ to conduct “further

administrative proceedings” about medical evidence in the record relevant to

Harrington’s condition as of June 30, 2009 that the 2017 ALJ decision had not

addressed. The mandate did not require a new hearing, or further testimony, or

specific findings about Harrington’s post-traumatic stress disorder.

2. The ALJ did not err by failing to explain how he applied res judicata and

Ninth Circuit precedent. The ALJ did not reiterate the standards set out in Chavez

v. Bowen, 844 F.2d 691, 693–94 (9th Cir. 1988), and Acquiescence Ruling 97-4(9),

but we presume ALJs follow the law, see Lockwood v. Comm’r Soc. Sec. Admin.,

616 F.3d 1068, 1072 n.3 (9th Cir. 2010). Here, the ALJ determined the record

supported the 2017 ALJ decision, which explained and applied these standards.

2 Harrington did not rebut the presumption of continuing non-disability that arose

from the 2009 final decision, see Chavez, 844 F.2d at 694. The 2009 decision

determined Harrington was not disabled as of June 29, 2009. Thus, Harrington

bore the burden of proving that she was severely impaired as of June 30, 2009. Id.

at 693. In 2017, the ALJ determined Harrington had not rebutted the presumption,

and here, the ALJ did not err by concluding that the presumption remained

unrebutted.

3. The ALJ provided “specific and legitimate reasons that are supported by

substantial evidence in the record” when it assessed the medical opinions.

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)

(citation omitted). The ALJ afforded Dr. Hofman’s opinion little weight because

the limitations he assessed were inconsistent with the record as a whole, which

documented intact or nearly intact functioning, and with Dr. Hofman’s own exam

findings, which included a normal mental status examination and no inconsistent

observations. The ALJ gave little weight to Dr. Ragonesi’s reports for two

reasons: the examinations took place in June 2010 and February 2011 and thus

provided little insight into Harrington’s functioning as of June 30, 2009; and Dr.

Ragonesi temporally limited Harrington’s symptoms. See Lombardo v. Schweiker,

749 F.2d 565, 567 (9th Cir. 1984) (affirming rejection of medical opinion because

3 examination occurred one and a half years after the time period at issue). The ALJ

gave little weight to Dr. Moore’s evaluations between 2006 and 2008 because they

significantly pre-dated June 30, 2009. See Carmickle, 533 F.3d at 1165 (affirming

rejection of earlier medical opinion because “[m]edical opinions that predate the

alleged onset of disability are of limited relevance”). The ALJ also discounted

numerous other medical opinions because they either significantly pre-dated, or

post-dated June 30, 2009.

Finally, the ALJ did not err by concluding the opinions of the state agency

consultants were only entitled to some weight because the consultants considered

evidence post-dating June 30, 2009, and their conclusions were inconsistent with

the record evidence showing Harrington’s intact mental status in June 2009.

Separately, Harrington does not contest that, before the district court, she failed to

argue the ALJ was internally inconsistent in his assessment of the agency

consultants, and thus that argument is waived. See Gonzalez v. Sullivan, 914 F.2d

1197, 1202 (9th Cir. 1990).

4. The ALJ provided “clear and convincing reasons” for assigning limited

weight to Harrington’s subjective testimony. Robbins v. Soc. Sec. Admin., 466

F.3d 880, 883 (9th Cir. 2006) (citing Smolen v. Chater, 80 F.3d 1273, 1283–84

(9th Cir. 1996)). The ALJ determined the evidence supported the 2017 ALJ’s

4 credibility decision and declined to disturb it. In the 2017 decision, the ALJ gave

two clear and convincing reasons for this determination: Harrington gave

inconsistent testimony concerning her activities in 2009 and admitted that she was

more capable in 2009 than in later years. The ALJ did not err by incorporating the

earlier credibility determination.

5. The ALJ did not err by incorporating the ALJ’s residual functional

capacity determination (RFC) from the 2017 decision. The ALJ determined that

the 2017 RFC was supported by the record evidence after specifically considering

Dr. Hofman’s June 25, 2009 evaluation and the other evidence, as the mandate

directed.

6. The ALJ’s Step-Five findings were supported by substantial evidence.

See Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019). The ALJ did not err when

assigning Harrington’s RFC, as discussed. The ALJ was not required to receive

new vocational testimony because the ALJ permissibly incorporated the earlier

RFC.

AFFIRMED.