Randy Dunn v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 9, 2018
• Docket: 15-35107
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 9 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RANDY JAMES DUNN, No. 15-35107

Plaintiff-Appellant, D.C. No. 6:14-cv-00266-HZ

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

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding

Submitted May 7, 2018**

Before: FARRIS, CANBY and LEAVY, Circuit Judges.

Randy Dunn appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of Dunn’s application for social security

supplemental security income and disability insurance benefits under Titles II and

XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We

* 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). review de novo, Ghanim v. Colvin, 736 F.3d 1154, 1159 (9th Cir. 2014), and we

affirm.

The ALJ gave a specific and legitimate reason for assigning little weight to

the opinion of treating psychiatrist Dr. Barrett and treating therapist Ms. Teixeira

because it was inconsistent with their treatment notes. Batson v. Comm’r Soc. Sec.

Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ need not accept opinion of even

treating physician if it is inadequately supported). Any error in the additional

reasons provided by the ALJ were harmless. See, e.g., Parra v. Astrue, 481 F.3d

742, 747 (9th Cir. 2007).

The ALJ gave the following specific and legitimate reasons for assigning

little weight to the opinion of Dr. Steffey and Mr. Stanley because: (1) it was

inconsistent with his activities; and (2) medical records contemporaneous to Dr.

Steffey’s last contact with Dunn contradict the physical limitations cited in the

assessment. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (holding an

ALJ may reject an opinion when the physician sets forth restrictions that “appear to

be inconsistent with the level of activity that [the claimant] engaged in”);

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding that an ALJ

may reject a medical opinion when it is inconsistent with contemporaneous

treatment notes). Any error in the ALJ’s additional reason was harmless because he

identified other specific and legitimate reasons to discount their opinion. Molina v.

2 15-35107 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

The ALJ properly gave “little weight” to Dr. Charnecki’s opinion because

she mostly refers to Dunn’s limitations in cold weather, not his maximum

capabilities. The ALJ’s inference that Dr. Charnecki based her opinion on other

treating sources’ notes is unsupported because she does not cite any other sources

in her opinion. This error is harmless because the ALJ properly discounted her

opinion because she emphasized Dunn’s limitations in cold weather.

The ALJ gave significant weight to Dr. Bartol’s opinion and properly

accounted for Dr. Bartol’s opinion by limiting Dunn to simple, repetitive, 1-2 step

tasks. An ALJ’s RFC assessment of a claimant adequately captures restrictions

related to concentration, persistence, or pace where the assessment is “consistent

with restrictions identified in the medical testimony.” Stubbs-Danielson v. Astrue,

539 F.3d 1169, 1174 (9th Cir. 2008). In Stubbs-Danielson, the Ninth Circuit held

that an RFC of “simple, routine, repetitive” work was consistent with an examining

doctor’s opinion that claimant can carry out “very short simple instructions.” Id.

Thus, the ALJ’s RFC properly incorporated Dunn’s concentration deficits by

limiting him to simple tasks.

The ALJ properly found that Drs. Givi and Davies’s opinion supported his

RFC of simple, repetitive, 1 to 2 step tasks. This adequately incorporated their

opinion that Dunn’s anxiety lowered his test scores and he had no more than a mild

3 15-35107 limitation in any mental activity that did not involve complex task or instructions.

Batson v. Comm’r of the SSA, 359 F.3d 1190, 1193 (9th Cir. 2004).

The ALJ identified specific, clear and convincing reasons that are supported

by substantial evidence for discounting Dunn’s testimony regarding the debilitating

effects of his symptoms: his drug-seeking behavior and benign objective findings.

See Lewis v. Astrue, 498 F.3d 909, 910 (9th Cir. 2007) (holding that drug-seeking

behavior may undermine a claimant’s credibility because it suggests motivation to

exaggerate symptoms in order to obtain drugs); Burch v. Barnhart, 400 F.3d 676,

680 (9th Cir. 2005) (holding that an ALJ can consider a lack of supporting medical

evidence when assessing credibility).

The ALJ properly gave his mother Ms. Davis’s testimony only partial

weight because it was inconsistent with the objective medical evidence.

Inconsistency with medical evidence is a germane reason for discrediting lay

witness testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Any

error in the ALJ’s additional reason was harmless because the ALJ provided a

germane reason. Molina, 674 F.3d at 1122 (upholding ALJ decision where error is

inconsequential to the ultimate nondisability determination).

AFFIRMED.

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