Robin Monta v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2019
• Docket: 17-35884
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBIN DENISE MONTA, No. 17-35884

Plaintiff-Appellant, D.C. No. 3:17-cv-05047-MAT

v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Mary Alice Theiler, Magistrate Judge, Presiding

Submitted August 26, 2019**

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.

Robin Monta appeals the district court’s affirmance of the Commissioner of

Social Security’s denial of her application for disability insurance benefits and

supplemental security income under Titles II and XVI of the Social Security Act

* 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). (Act). We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We

review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we

affirm.

The ALJ proffered specific, clear, and convincing reasons to discredit

Monta’s testimony, including inconsistency with the objective medical evidence,

inconsistent statements concerning Monta’s substance use, and an inconsistency

between Monta’s statement that she spent most of her time alone and her reported

activities. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Burch v.

Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Edlund v. Massanari, 253 F.3d 1152,

1157 (9th Cir. 2001), as amended on reh’g (Aug. 9, 2001). Any error in the ALJ’s

additional reasons was harmless. See Molina, 674 F.3d at 1115.

By citing a lack of support in the record, the ALJ gave a specific and

legitimate reason supported by substantial evidence for assigning little weight to

Dr. Jennifer Irwin’s opinion. See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir.

2017) (ALJ must consider the degree to which a medical opinion is supported by

the record); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (ALJ need

not accept a medical opinion that is unsupported by clinical findings). Any error in

rejecting Dr. Irwin’s opinion as inconsistent with Monta’s activities, or because

Monta failed to follow through with mental health treatment, was harmless. See

Molina, 674 F.3d at 1115.

2 17-35884 Because Monta failed to challenge the ALJ’s evaluation of Dr. Andrew

Tsoi’s opinion before the district court, the issue is waived. See Greger v.

Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).

The ALJ provided germane reasons to assign little weight to opinions from

Thomas Young, Monta’s chiropractor, as inconsistent with the medical evidence

and based on Monta’s subjective reports. See Revels, 874 F.3d at 655; Tommasetti

v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). The ALJ did not err in assigning

less weight to Dr. Young’s opinion than to the conflicting opinion of consulting

physician Gary Gaffield because Dr. Gaffield was an acceptable medical source.

See SSR 06-03P (S.S.A. Aug. 9, 2006) (where medical opinions conflict, the fact

that one is from an “‘acceptable medical source’ is a factor that may justify giving

that opinion greater weight”). Any error in rejecting Dr. Young’s opinions as

outside his area of expertise or inconsistent with Monta’s activities was harmless.

See Molina, 674 F.3d at 1115. The ALJ provided a germane reason to assign little

weight to the opinion of Linda Pelland, Monta’s nurse practitioner, as based on

Monta’s subjective reports and did not err in assigning greater weight to Dr.

Gaffield’s conflicting opinion. See Revels, 874 F.3d at 655; Tommasetti, 533 F.3d

at 1041. See also SSR 06-03P.

The ALJ also provided germane reasons to discount four lay witness

statements. The ALJ discounted the testimony of Monta’s former roommate “to the

3 17-35884 extent that it is not consistent with the medical evidence of record.” Because the

ALJ cited conflicting medical evidence elsewhere in her opinion, she provided a

sufficient reason to discount the roommate’s statement. See Lewis v. Apfel, 236

F.3d 503, 512 (9th Cir. 2001). The ALJ provided a germane reason to assign little

weight to the testimony of Monta’s brother as based on Monta’s subjective reports.

Although Monta contends the ALJ misconstrued the brother’s letter, the ALJ’s

interpretation of the evidence is reasonable. See Molina, 674 F.3d at 1111. The

ALJ gave germane reasons to assign “some weight” to evidence from two of

Monta’s friends who stated that Monta had declined but did not elaborate any

specific functional limitations.

The ALJ did not err in formulating Monta’s residual functional capacity

(RFC) or posing hypotheticals to the vocational expert (VE). Monta’s arguments

concerning the RFC stem from her allegations that the ALJ erred in evaluating the

medical opinion evidence. Because Monta did not show harmful error in the earlier

analysis, these arguments lack support. See Stubbs-Danielson v. Astrue, 539 F.3d

1169, 1175-76 (9th Cir. 2008).

Finally, Monta fails to show error at step five because the VE’s testimony is

substantial evidence which supports the ALJ’s findings. See Bayliss v. Barnhart,

427 F.3d 1211, 1217 (9th Cir. 2005); Thomas v. Barnhart, 278 F.3d 947, 955 (9th

Cir. 2002). The ALJ’s typographical error in a job’s Dictionary of Occupational

4 17-35884 Titles number was harmless. See Molina, 674 F.3d at 1115.

AFFIRMED.

5 17-35884