Kenneth Lemberg v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2019
• Docket: 17-15832
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KENNETH W. LEMBERG, No. 17-15832

Plaintiff-Appellant, D.C. No. 2:15-cv-02394-SRB

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

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

Argued and Submitted February 5, 2019 Withdrawn from Submission February 5, 2019 Resubmitted April 22, 2019 Phoenix, Arizona

Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.

Kenneth Lemberg appeals a district court order affirming the Commissioner

of Social Security’s decision that he had the residual functional capacity (“RFC”) to

work as of November 26, 2003—and was therefore not entitled to Social Security

Disability Insurance. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. We find no reversible error in the evaluation by the administrative law

judge (“ALJ”) of the opinions of treating physicians Drs. Bernstein and Porter. The

treating doctors’ opinions were contradicted by the opinions of other physicians, and

the ALJ gave other “specific, legitimate reasons based on substantial evidence in the

record” for rejecting each. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.

2012). The ALJ rejected Dr. Bernstein’s opinion because it was contradicted by

Lemberg’s reported daily activities. She rejected Dr. Porter’s assessment because it

was contradicted by imaging studies and Lemberg’s contemporaneous descriptions

of his pain. And, the ALJ reasonably concluded that Dr. Porter’s January 2005

statement that Lemberg’s complaints were “well outlined with subjective and

objective documentation” referred only to recent medical evidence.

2. The ALJ did not err in evaluating the opinions of the non-treating

physicians. The ALJ reasonably found the opinions of Drs. Wood and Hopkins

consistent and supported by other medical evidence, and properly adopted an RFC

based on their assessments. See Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995).

3. The ALJ did not abuse her discretion in denying Lemberg’s request to

subpoena nonexamining physicians. See Copeland v. Bowen, 861 F.2d 536, 539 (9th

Cir. 1988). Even assuming that Dr. Hopkins was a crucial witness, his findings were

not substantially contradicted by the opinions of other physicians. See Solis v.

Schweiker, 719 F.2d 301, 301 (9th Cir. 1983). Moreover, Lemberg’s request did not

2 comply with the governing regulation. It did not state “the names of the witness or

documents to be produced” and “the important facts that the witness or document is

expected to prove,” or explain “why these facts could not be proven without issuing

a subpoena.” 20 C.F.R. § 404.950(d)(2).

4. The ALJ did not err in finding Lemberg’s symptom testimony not credible.

The ALJ gave “specific, clear and convincing reasons” for rejecting the testimony,

noting that it was inconsistent with Lemberg’s reported daily activities and with

medical evidence indicating a lack of muscle atrophy. Smolen v. Chater, 80 F.3d

1273, 1281 (9th Cir. 1996).

5. The ALJ did not err in discounting the lay witness report of Lemberg’s

wife. The ALJ gave a germane reason for doing so—that Mrs. Lemberg’s statement

was inconsistent with Lemberg’s testimony at trial and other evidence in the record.

See Molina, 674 F.3d at 1114.

6. The ALJ did not err in finding Lemberg medically improved as of

November 26, 2003. Although Lemberg was found disabled until that date, the ALJ

properly compared the medical evidence available before November 26, 2003, with

“the medical evidence existing at the time of possible medical improvement.”

Attmore v. Colvin, 827 F.3d 872, 876 (9th Cir. 2016); see also 42 U.S.C. § 423(f)(1);

20 C.F.R. 404.1594(b)–(c). Lemberg’s reports of decreased pain beginning in

November 2003 and objective medical images showing no abnormalities support a

3 finding of medical improvement.

7. The ALJ’s finding that other work was available to Lemberg was supported

by the testimony of a vocational expert (“VE”). That testimony constituted

substantial evidence despite the VE’s failure to provide underlying data. See Biestek

v. Berryhill, 139 S. Ct. 1148, 1157 (2019); Bayliss v. Barnhart, 427 F.3d 1211, 1218

(9th Cir. 2005).

8. Even assuming that the VE gave ambiguous testimony about transferrable

skills, any error in failing to resolve that ambiguity was harmless. The ALJ

determined that Lemberg could perform unskilled work. The transferrable skill

testimony was therefore “inconsequential to the ultimate nondisability

determination.” See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (quoting

Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006)).

AFFIRMED.