NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LAURA L. ALEXANDER, No. 17-35385
Plaintiff-Appellant, D.C. No. 3:16-cv-05371-RAJ
v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding
Submitted June 5, 2020** Seattle, Washington
Before: GOULD, BEA, and MURGUIA, Circuit Judges.
Laura L. Alexander appeals the district court’s order affirming the
Commissioner of Social Security’s denial of her applications for disability
insurance benefits and supplemental security income under Titles II and XVI of the
* 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). Social Security Act, 42 U.S.C. §§ 401–33, 1381–1383f. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.
We review de novo the district court’s order affirming the Commissioner’s
denial of benefits. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (citing
Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015)). The Commissioner’s
decision may be set aside when the findings by the administrative law judge (“ALJ”)
are “based on legal error or not supported by substantial evidence in the record.” Id.
(quoting Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)).
“Where evidence is susceptible to more than one rational interpretation, the ALJ’s
decision should be upheld.” Id. at 674–75 (quoting Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007)).
Because the parties are familiar with the facts and procedural history of the
case, we recite only those facts necessary to decide this appeal.
1. The ALJ offered “‘specific and legitimate reasons’ supported by
substantial evidence in the record” for affording little weight to the opinions of Dr.
Frank F. Marinkovich, Alexander’s primary care physician. Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1995) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th
Cir. 1983)). The ALJ properly identified a number of inconsistencies between the
doctor’s opinions and his treatment notes, see Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 692–93 (9th Cir. 2009); Bayliss v. Barnhart, 427 F.3d 1211,
2 1216 (9th Cir. 2005), and between the doctor’s opinions and diagnostic studies, see
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008), regarding the degree of
Alexander’s limitations.
The ALJ erred in discrediting Dr. Marinkovich’s opinions on the basis that
the doctor relied on Alexander’s self-reported pain allegations, since there is no
evidence that Dr. Marinkovich relied “more heavily” on Alexander’s subjective
self-reporting than on his assessment of the medical records and his examinations
of Alexander. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (“[W]hen an
opinion is not more heavily based on a patient’s self-reports than on clinical
observations, there is no evidentiary basis for rejecting the opinion.” (citing Ryan
v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199–1200 (9th Cir. 2008))); Tommasetti,
533 F.3d at 1041 (“An ALJ may reject a treating physician’s opinion if it is based
‘to a large extent’ on a claimant’s self-reports that have been properly discounted
as incredible.” (quoting Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 602
(9th Cir. 1999))); see, e.g., Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
1122, 1228 (9th Cir. 2009) (discounting treating physician’s opinion, where his
prescription was based on claimant’s subjective characterization of her symptoms,
which were not credible). However, the error was harmless because the ALJ’s
decision was based on other specific and legitimate reasons that are supported by
substantial evidence in the record. See Batson v. Comm’r of Soc. Sec. Admin., 359
3 F.3d 1190, 1197 (9th Cir. 2004).
2. The ALJ erred in concluding that Alexander could perform other jobs
that exist in significant numbers in the national economy. To reach her conclusion,
the ALJ relied on the testimony of a vocational expert. However, the expert’s
testimony was premised on an incomplete hypothetical that did not include all the
limitations in the ALJ’s residual functional capacity assessment of Alexander. A
hypothetical posed to a vocational expert “should ‘set out all of the claimant’s
impairments.’” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (quoting
Baugus v. Sec’y of Health & Human Servs., 717 F.2d 443, 447 (8th Cir. 1983)). “If
the hypothetical does not reflect all the claimant’s limitations, . . . the expert’s
testimony has no evidentiary value to support a finding that the claimant can perform
jobs in the national economy.” DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir.
1991) (first citing Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988); and then
citing Gallant, 753 F.2d at 1457). Here, as part of her residual functional capacity
assessment, the ALJ found that Alexander “is limited to frequent reaching of the
upper extremities,” but posed a hypothetical to the vocational expert that did not
include any manipulative restrictions. Therefore, the expert’s testimony has no
evidentiary value, and the ALJ’s finding is not supported by substantial evidence.
The error was not harmless, even if the ALJ also relied on the Dictionary of
Occupational Titles (“DOT”), because the government can carry its burden of proof
4 at step five only through use of the Medical–Vocational Guidelines or through
testimony from a vocational expert. See Tackett v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
LAURA L. ALEXANDER, No. 17-35385
Plaintiff-Appellant, D.C. No. 3:16-cv-05371-RAJ
v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding
Submitted June 5, 2020** Seattle, Washington
Before: GOULD, BEA, and MURGUIA, Circuit Judges.
Laura L. Alexander appeals the district court’s order affirming the
Commissioner of Social Security’s denial of her applications for disability
insurance benefits and supplemental security income under Titles II and XVI of the
* 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). Social Security Act, 42 U.S.C. §§ 401–33, 1381–1383f. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.
We review de novo the district court’s order affirming the Commissioner’s
denial of benefits. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (citing
Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015)). The Commissioner’s
decision may be set aside when the findings by the administrative law judge (“ALJ”)
are “based on legal error or not supported by substantial evidence in the record.” Id.
(quoting Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)).
“Where evidence is susceptible to more than one rational interpretation, the ALJ’s
decision should be upheld.” Id. at 674–75 (quoting Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007)).
Because the parties are familiar with the facts and procedural history of the
case, we recite only those facts necessary to decide this appeal.
1. The ALJ offered “‘specific and legitimate reasons’ supported by
substantial evidence in the record” for affording little weight to the opinions of Dr.
Frank F. Marinkovich, Alexander’s primary care physician. Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1995) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th
Cir. 1983)). The ALJ properly identified a number of inconsistencies between the
doctor’s opinions and his treatment notes, see Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 692–93 (9th Cir. 2009); Bayliss v. Barnhart, 427 F.3d 1211,
2 1216 (9th Cir. 2005), and between the doctor’s opinions and diagnostic studies, see
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008), regarding the degree of
Alexander’s limitations.
The ALJ erred in discrediting Dr. Marinkovich’s opinions on the basis that
the doctor relied on Alexander’s self-reported pain allegations, since there is no
evidence that Dr. Marinkovich relied “more heavily” on Alexander’s subjective
self-reporting than on his assessment of the medical records and his examinations
of Alexander. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (“[W]hen an
opinion is not more heavily based on a patient’s self-reports than on clinical
observations, there is no evidentiary basis for rejecting the opinion.” (citing Ryan
v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199–1200 (9th Cir. 2008))); Tommasetti,
533 F.3d at 1041 (“An ALJ may reject a treating physician’s opinion if it is based
‘to a large extent’ on a claimant’s self-reports that have been properly discounted
as incredible.” (quoting Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 602
(9th Cir. 1999))); see, e.g., Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
1122, 1228 (9th Cir. 2009) (discounting treating physician’s opinion, where his
prescription was based on claimant’s subjective characterization of her symptoms,
which were not credible). However, the error was harmless because the ALJ’s
decision was based on other specific and legitimate reasons that are supported by
substantial evidence in the record. See Batson v. Comm’r of Soc. Sec. Admin., 359
3 F.3d 1190, 1197 (9th Cir. 2004).
2. The ALJ erred in concluding that Alexander could perform other jobs
that exist in significant numbers in the national economy. To reach her conclusion,
the ALJ relied on the testimony of a vocational expert. However, the expert’s
testimony was premised on an incomplete hypothetical that did not include all the
limitations in the ALJ’s residual functional capacity assessment of Alexander. A
hypothetical posed to a vocational expert “should ‘set out all of the claimant’s
impairments.’” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (quoting
Baugus v. Sec’y of Health & Human Servs., 717 F.2d 443, 447 (8th Cir. 1983)). “If
the hypothetical does not reflect all the claimant’s limitations, . . . the expert’s
testimony has no evidentiary value to support a finding that the claimant can perform
jobs in the national economy.” DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir.
1991) (first citing Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988); and then
citing Gallant, 753 F.2d at 1457). Here, as part of her residual functional capacity
assessment, the ALJ found that Alexander “is limited to frequent reaching of the
upper extremities,” but posed a hypothetical to the vocational expert that did not
include any manipulative restrictions. Therefore, the expert’s testimony has no
evidentiary value, and the ALJ’s finding is not supported by substantial evidence.
The error was not harmless, even if the ALJ also relied on the Dictionary of
Occupational Titles (“DOT”), because the government can carry its burden of proof
4 at step five only through use of the Medical–Vocational Guidelines or through
testimony from a vocational expert. See Tackett v. Apfel, 180 F.3d 1094, 1099 (9th
Cir. 1999).1 In addition, the error was not inconsequential to the disposition because
the vocational expert would not necessarily have agreed with the DOT had he been
presented with the correct hypothetical. See Gutierrez v. Colvin, 844 F.3d 804, 807
(9th Cir. 2016) (noting that the DOT guides the analysis but the expert’s testimony
may conflict with the DOT); Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir.
2007) (holding that if a conflict exists, “the ALJ must then determine whether the
vocational expert’s explanation for the conflict is reasonable and whether a basis
exists for relying on the expert rather than the [DOT]”); SSR 00-4p, 2000 WL
1898704, at *2 (2000) (“Neither the DOT nor the [expert] evidence automatically
‘trumps’ when there is a conflict.”); see also Molina v. Astrue, 674 F.3d 1104, 1115
(9th Cir. 2012) (noting that “an ALJ’s error is harmless where it is ‘inconsequential
to the ultimate nondisability determination’” (quoting Carmickle v. Comm’r of Soc.
Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) and collecting cases)).
On remand, the ALJ must reconsider her step five determination and pose a
proper hypothetical to the vocational expert that accounts for all of Alexander’s
1 The Commissioner relies on Matthews v. Shalala, 10 F.3d 678 (9th Cir. 1993), but that case is distinguishable because the harmless error analysis in that case occurred at step four, not at step five. This is significant because the testimony of a vocational expert at step four is “useful, but not required.” Id. at 681.
5 limitations. See, e.g., Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001);
Atkins v. Chater, 70 F.3d 529, 530 (9th Cir. 1995).
3. Alexander raises a number of issues for the first time on appeal.
Because these issues were not raised below, they are waived and we do not consider
them. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1007 (9th Cir.
2006) (citing Edlund, 253 F.3d at 1158 n.7).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. The
parties shall bear their own costs.