Leonard Carter v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 20, 2018
• Docket: 16-36083
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LEONARD CARTER, No. 16-36083

Plaintiff-Appellant, D.C. No. 2:16-cv-00688-JRC

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

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington J. Richard Creatura, Magistrate Judge, Presiding

Submitted September 18, 2018**

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges

Leonard Carter appeals pro se the district court’s decision affirming the

Commissioner of Social Security’s denial of Carter’s application 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. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo, Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015), and we affirm.

The ALJ provided clear and convincing reasons to reject the opinions of

treating psychiatrist, Dr. Hopfenbeck. See Bayliss v. Barnhart, 427 F.3d 1211,

1216 (9th Cir. 2005) (explaining that clear and convincing reasons are required to

reject the uncontradicted opinion of a treating physician). First, the ALJ properly

rejected Dr. Hopfenbeck’s opinions as inconsistent with Carter’s daily activities,

including Carter’s participation on the Martin Luther King commemoration

planning committee and Carter’s ability to travel by plane. See Ghanim v. Colvin,

763 F.3d 1154, 1161 (9th Cir. 2014) (concluding that the ALJ can properly reject a

treating physician’s opinion that is inconsistent with a claimant’s daily activities).

Substantial evidence supported the ALJ’s conclusion that these activities required a

level of social interaction that was inconsistent with Dr. Hopfenbeck’s opinions

that Carter’s paranoid delusions inhibited any social interaction. Second, the

rejection by the ALJ of Dr. Hopfenbeck’s opinions regarding social interaction was

sufficiently supported as inconsistent with Carter’s ability to interact with

classmates and avoid any disciplinary problems while earning a two-year welding

degree and taking classes in electrical engineering. Cf. Bayliss, 427 F.3d at 1216

(including ability to complete a college degree despite limitations in list of clear

2 16-36083 and convincing reasons that the ALJ properly relied on to reject an examining

physician’s opinion).

The ALJ provided germane reasons for giving little weight to Ms.

Meinecke’s opinion regarding Carter’s physical limitations. See Ghanim, 763 F.3d

at 1161 (explaining that an ALJ must give germane reasons for rejecting a nurse’s

opinion). The ALJ found that Carter’s daily activities, including riding his bike and

going to the gym, were inconsistent with Ms. Meinecke’s opinion. See Bayliss, 427

F.3d at 1218 (including inconsistency with daily activities in germane reasons to

reject lay testimony).

Carter fails to satisfy the standard for a remand to consider new evidence

based on the letter from Dr. Brown. See Luna v. Astrue, 623 F.3d 1032, 1034 (9th

Cir. 2010) (permitting remand to the Commissioner based on new evidence when

the evidence is material and the claimant shows good cause for failing to provide

the evidence earlier). Dr. Brown’s letter is not material because it offers only

conclusory statements discussing no additional functional limitations. See Luna,

623 F.3d at 1034 (explaining that evidence is material if there is a reasonable

possibility that it would have changed the outcome). Carter also fails to establish

good cause because he offers no explanation for why this evidence was not

available earlier. See Mayes v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001) (“A

3 16-36083 claimant does not meet the good cause requirement by merely obtaining a more

favorable report once his or her claim has been denied.”).

Carter waived any claims regarding the Cooperative Disability

Investigations Unit report, the ALJ’s credibility determination regarding Carter’s

testimony, or any other evidence by failing to argue any claim in his opening brief.

See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir.

2008) (concluding that this Court will not consider issues that are not specifically

argued in a claimant’s opening brief).

AFFIRMED.

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