Scott Connelly v. Carolyn Colvin

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2024
• Docket: 23-35527
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SCOTT R. CONNELLY, No. 23-35527

Plaintiff-Appellant, D.C. No. 3:22-cv-05943-SKV

v. MEMORANDUM** CAROLYN W. COLVIN,* Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Sarah Kate Vaughan, Magistrate Judge, Presiding

Argued and Submitted October 21, 2024 Portland, Oregon

Before: HAMILTON,*** VANDYKE, and H.A. THOMAS, Circuit Judges.

Plaintiff Scott R. Connelly appeals the district court’s judgment affirming

the Commissioner of Social Security’s denial of his applications for disability

* We have substituted Acting Commissioner Carolyn W. Colvin as defendant-appellee pursuant to Federal Rule of Appellate Procedure 43(c). ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The Honorable David F. Hamilton, United States Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, sitting by designation. insurance benefits and supplemental security income under Titles II and XVI of the

Social Security Act. Connelly argues that the administrative law judge (ALJ)

improperly evaluated the medical evidence, his own testimony regarding his

symptoms, and a lay witness statement. He also argues that new evidence he first

submitted to the Appeals Council warrants remand. We have jurisdiction under 28

U.S.C. § 1291. We review the district court’s decision de novo, Ahearn v. Saul,

988 F.3d 1111, 1116 (9th Cir. 2021), but we review the ALJ’s decision

deferentially under 42 U.S.C. § 405(g). We may reverse “only if the ALJ’s

decision was not supported by substantial evidence in the record as a whole or if

the ALJ applied the wrong legal standard.” Ahearn, 988 F.3d at 1115 (quoting

Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)). We affirm.

1. Medical Evidence: The ALJ’s decision to discount medical opinions

offered by Drs. Franzen, Wilton, and Wingate – and an opinion from treating

therapist Price – was supported by substantial evidence and was explained

sufficiently. See 20 C.F.R. § 404.1520c(b) (explaining that ALJ must “articulate

… how persuasive [she] find[s] all of the medical opinions” from each source, and

“explain how [she] considered the supportability and consistency factors”). Dr.

Franzen said on December 14, 2018 that Connelly then had significant ankle pain

preventing him from working, but later physical therapy notes showed substantial

improvement. Those same notes indicated that Dr. Franzen had “cleared”

2 23-35527 Connelly to return to work less than a month later, supporting the ALJ’s decision

to discount Dr. Franzen’s December 14, 2018 opinion as evidence of long-term

disability. See 20 C.F.R. § 404.1529(c)(3)(v) (requiring ALJs to consider a

claimant’s treatment).

Substantial evidence supports the ALJ’s assessment of Dr. Wilton’s opinion

regarding Connelly’s hernia-related limitations as unpersuasive because it was

inconsistent with evidence of his daily activities, including walking, riding a

bicycle, and chopping firewood. See Smartt v. Kijakazi, 53 F.4th 489, 496 (9th

Cir. 2022) (affirming ALJ’s rejection of medical opinion as inconsistent with

claimant’s daily activities documented in medical records); see also Ghanim v.

Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (reversing denial of benefits but

noting that inconsistency between medical opinion and claimant’s daily activities

can be valid reason to discount that medical opinion). Finally, substantial evidence

supports the ALJ’s assessment of Dr. Wingate’s opinion as partially persuasive and

Mr. Price’s opinion as unpersuasive because both opinions were contrary to other

medical evidence showing that Connelly’s mental health symptoms improved with

counseling and sobriety. See Woods v. Kijakazi, 32 F.4th 785, 792–93 (9th Cir.

2022) (affirming ALJ’s rejection of doctor’s mental health opinion when

inconsistent with “overall treating notes and mental status exams in the record”).

3 23-35527 The ALJ’s decision to give little weight to medical opinions regarding

Connelly’s other impairments was also supported by substantial evidence. The

ALJ made bullet-pointed lists explaining that Connelly was able to walk

effectively despite various medical conditions, that medical providers did not

recommend leg-elevation for his edema, that he declined hernia treatment, and that

he improved his mental health symptoms through treatment. There was more than

a “mere scintilla” of evidence to support the ALJ’s determination. Andrews v.

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); accord, Terry v. Saul, 998 F.3d 1010,

1013 (9th Cir. 2021) (noting that this court defers to ALJ when record is

“susceptible to more than one rational interpretation”) (quoting Andrews, 53 F.3d

at 1040). The ALJ’s determination was also supported by findings from non-

examining state physicians, which the ALJ could rely upon. See Woods, 32 F.4th

at 791–92 (noting that 2017 amendments to regulations do not require deference to

treating physicians); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (approving

ALJ’s rejection of treating physician’s opinion in part because it was contradicted

by opinions from two non-examining physicians).

2. Connelly’s Subjective Symptom Testimony: The ALJ’s rejection of

Connelly’s testimony about his cognitive limitations was also supported by

substantial evidence. The ALJ found that Connelly’s testimony was inconsistent

with evidence showing that those symptoms could be managed with treatment. See

4 23-35527 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)

(“Impairments that can be controlled effectively with medication are not disabling

for the purpose of determining eligibility for [supplemental security income]

benefits.”); see also Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161

(9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for

rejecting the claimant’s subjective testimony.”). The ALJ also noted that

Connelly’s symptom testimony was contrary to evidence indicating that he

remained unemployed due to factors other than his cognitive impairments. This

reason was another appropriate “clear and convincing” ground for discounting

Connelly’s testimony. See, e.g., Brown-Hunter v. Colvin, 806 F.3d 487, 493–94

(9th Cir. 2015) (ALJ must provide “clear and convincing” reasons for finding

claimant’s testimony not credible, and remanding where requirement was not

satisfied); 20 C.F.R. § 404.1529(c) (grounds for evaluating symptoms like pain

include prior work and daily activities, among other factors).

Substantial evidence also supports the ALJ’s discounting of Connelly’s

subjective symptom testimony regarding his physical impairments. She noted that

Connelly could walk, ride a bicycle, shop, run errands, chop firewood, and garden.

An inconsistency with a claimant’s daily activities can be an appropriate basis for

discounting a claimant’s testimony about the disabling effects of his impairments.

Smartt, 53 F.4th at 499–500 (affirming denial of benefits on this basis where

5 23-35527 claimant’s subjective symptom testimony was inconsistent with daily activities).

3. Lay Evidence: Assuming that ALJs must still, after the 2017 regulation

amendments, offer reasons “germane to each witness” in order to reject lay

evidence, Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Nguyen v.

Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)), the ALJ satisfied that obligation.

See 20 C.F.R. § 404.1520c(d) (after 2017 amendments to regulations, ALJ does not

need to articulate assessment of non-medical evidence using standards for medical

evidence); Fryer v. Kijakazi, No. 21-36004, 2022 WL 17958630, at *3 n.1 (9th

Cir. Dec. 27, 2022) (noting that ALJ’s obligations regarding lay evidence are

unsettled after 2017 amendments). The ALJ in this case described the statement

submitted by Simmons, Connelly’s friend, and concluded that it was “inconsistent

with the overall medical evidence of record.” She then identified multiple

inconsistencies, including Connelly’s response to treatment and daily activities.

These reasons were sufficiently “germane” to warrant discounting Simmons’s

statement, and the ALJ’s determination was supported by substantial evidence.

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

(noting that when ALJ provided clear and convincing reasons to reject claimant’s

testimony and lay witness testimony was similar, “it follows that the ALJ also gave

germane reasons for rejecting” the lay witness testimony).

4. Residual Functional Capacity: The ALJ also did not err in determining

6 23-35527 Connelly’s residual functional capacity or in posing her hypothetical questions to

the vocational expert. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76

(9th Cir. 2008) (“In arguing the ALJ’s hypothetical was incomplete, [claimant]

simply restates her argument that the ALJ’s [residual functional capacity] finding

did not account for all her limitations ….”). Because the ALJ’s determination of

Connelly’s limitations appropriately weighed the medical evidence, her residual

functional capacity determination – which accounted for those limitations – was

not flawed. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th

Cir. 2004) (concluding ALJ did not err in assessing residual functional capacity

when she “permissibly discounted” evidence from treating physicians and provided

clear and convincing reasons for rejecting claimant’s subjective symptom

testimony).

5. Appeals Council Evidence: The evidence first submitted to the Appeals

Council – Dr. Wilkinson’s 2022 opinion – does not require remand for two

reasons. First, it post-dates the period of disability at issue in the ALJ’s decision

and so is of limited relevance. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,

1224 (9th Cir. 2010) (approving ALJ’s decision to disregard testimony given more

than a year after alleged period of disability); Mayes v. Massanari, 276 F.3d 453,

462 (9th Cir. 2001) (noting that “new evidence must bear directly and substantially

on the matter in dispute” (citation and internal quotation marks omitted)). Second,

7 23-35527 the new evidence does not “directly undermine[]” the ALJ’s conclusion. Decker v.

Berryhill, 856 F.3d 659, 665 (9th Cir. 2017). Dr. Wilkinson opined that Connelly

had “marked” limitations in performing tasks without special supervision,

maintaining appropriate behavior in a work setting, and completing a normal

workday without interruptions from his symptoms. But Dr. Wilkinson also noted

that Connelly was “cooperative,” his speech was “logical and related to topic,” and

he had normal thought process and content, orientation, memory, fund of

knowledge, abstract thought, and insight and judgment. Substantial evidence still

supports the ALJ’s conclusion, and remand is not required based on the new

evidence.

AFFIRMED.

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