Lavern Farrar v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 9, 2018
• Docket: 16-35850
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 09 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAVERN D. FARRAR, No. 16-35850

Plaintiff-Appellant, D.C. No. 3:15-cv-05297-TSZ

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

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Submitted May 7, 2018** Seattle, Washington

Before: GOULD and IKUTA, Circuit Judges, and FREUDENTHAL,*** Chief 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 Nancy Freudenthal, Chief United States District Judge for the District of Wyoming, sitting by designation. Lavern Farrar appeals the district court’s judgment affirming the

Commissioner of Social Security’s determination that Farrar was no longer

disabled as of October 1, 2010. We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

The ALJ was entitled to reject Farrar’s testimony upon finding evidence of

malingering. See Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir.

2003). The ALJ also provided additional specific, clear and convincing reasons for

rejecting Farrar’s subjective symptom testimony, including evidence that Farrar

engaged in activities such as chopping down trees, chopping firewood, traveling

alone, hunting, hauling things between properties, and driving and digging with a

tractor, see Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012), as well as

evidence that Farrar made inconsistent statements about the effectiveness of his

medication and his maintenance of sobriety.

The ALJ did not err in weighing the various medical opinions. Although Dr.

Deem’s opinion was “susceptible to more than one rational interpretation,” the

ALJ’s interpretation was reasonable, and therefore we uphold it. Orn v. Astrue,

495 F.3d 625, 630 (9th Cir. 2007) (internal quotation marks omitted). The ALJ

gave germane reasons for rejecting the opinion of physical therapist William

Linnenkohl because it was based on Farrar’s subjective complaints, which the ALJ

2 deemed not to be credible. Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). The

ALJ also gave germane reasons for giving limited weight to the opinion of mental

health counselor Philip Williams because it was contradicted by evidence in the

record that Farrar could interact appropriately with the general public and adhere to

social standards. The ALJ gave specific and legitimate reasons for rejecting Dr.

Lewis’s opinion because it was based on Farrar’s subjective complaints and was

inconsistent with other evidence in the record. The ALJ similarly gave specific

and legitimate reasons for rejecting non-examining psychologist Anita Peterson’s

opinion because it was inconsistent with other evidence in the record. Finally, the

ALJ properly weighed the evidence provided by treating physician Dr. Newell-

Eggert that was significant and probative regarding Farrar’s ability to work from

October 2010. See Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394–95

(9th Cir. 1984) (per curiam). Because the medical evidence prior to the April 2005

initial disability finding does not bear on the issue before the ALJ, we do not

address the ALJ’s evaluation of this evidence. See Molina, 674 F.3d at 1115.

Because the ALJ gave germane reasons for rejecting Farrar’s testimony, we

uphold the ALJ’s rejection of Rose Farrar’s similar testimony. See Valentine v.

Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).

3 The ALJ did not err in framing his hypothetical question to the vocational

expert or in the residual functional capacity finding, because the ALJ could

exclude limitations based on Farrar’s non-credible testimony and on medical

sources that the ALJ had rejected. See Stubbs-Danielson v. Astrue, 539 F.3d 1169,

1175–76 (9th Cir. 2008).

AFFIRMED.