Shawn Moseley v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 16, 2019
• Docket: 17-16779
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SHAWN C. MOSELEY, No. 17-16779

Plaintiff-Appellant, D.C. No. 2:16-cv-2294-GMS v.

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

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding

Submitted October 15, 2019** San Diego, California

Before: HURWITZ, OWENS, and LEE, Circuit Judges.

Shawn C. Moseley appeals a district court judgment affirming the

Commissioner’s denial of an application for Social Security Disability Insurance

(“SSDI”). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. 1. Substantial evidence supports the finding by an administrative law judge

(“ALJ”) that Moseley’s testimony about his symptoms was inconsistent with the

medical record. See Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (stating

standard of review). Nor did the ALJ err in considering Moseley’s demeanor while

testifying as “one among many” factors bearing upon credibility. See Orn v. Astrue,

495 F.3d 625, 639–40 (9th Cir. 2007). Even assuming that the ALJ erred in assessing

the relevance of Moseley’s daily activities to his claimed symptoms, any error was

harmless. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th

Cir. 2008) (applying “harmless error standard where one of the ALJ’s several

reasons supporting an adverse credibility finding was held invalid”).

2. Substantial evidence also supports the ALJ’s assignment of “minimal

weight” to treating physician Dr. Rappoport’s opinions. Dr. Rappoport’s clinical

reports cited “normal,” “clean,” and “pristine” MRIs, as well as Moseley’s positive

responses to therapy. The most recent objective medical evidence in the record

corroborated the MRI results. And because “the ALJ determined that [Moseley’s]

description of [his] limitations was not entirely credible, it is reasonable to discount

a physician’s prescription that was based on those less than credible statements.”

Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009).

3. Substantial evidence supports the ALJ’s finding that the opinion of

examining psychologist Dr. Hurd was at odds with the medical record. Substantial

2 evidence also supports the ALJ’s assessment of Moseley’s symptoms as more

moderate than found by examining psychologist Dr. Teed. The ALJ did not err in

considering “the frequency of examination” in evaluating these medical opinions.

20 C.F.R. § 404.1527(c)(2)(i).

4. The ALJ erred by declining to credit the Veteran Administration’s 70%

disability rating because of differences between SSDI and VA disability criteria. See

Valentine v. Comm’r Soc. Sec. Admin, 574 F.3d 685, 695 (9th Cir. 2009). But, any

such error was harmless, as the ALJ also cited new evidence unavailable to the VA

and noted the VA’s reliance on evidence to which the ALJ assigned less weight. See

id.

5. The ALJ provided a germane explanation in evaluating the testimony of

Moseley’s spouse, finding her description of Moseley’s symptoms inconsistent

“with the preponderance of the opinions and observations by medical doctors in this

case.” See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“One reason for which

an ALJ may discount lay testimony is that it conflicts with medical evidence.”). To

the extent the ALJ erred by also considering the spouse’s relationship to Moseley or

her lack of medical training, any error was harmless. See Carmickle, 533 F.3d at

1162.1

1 We need not consider whether the ALJ erred by failing to assess the severity of certain limitations at step two of the disability framework, see 20 C.F.R. § 404.1520(a), because the ALJ considered all of Moseley’s limitations at step four.

3 6. The approval by the Commissioner of Moseley’s subsequent application

for SSDI does not warrant remand in this case. In the subsequent award, the ALJ

expressly noted that it was based on a showing of “changed circumstances” since

the period covered by the prior application. There is thus no “reasonabl[e]

possibility that the new evidence would have changed the outcome of the [initial]

determination.” Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (quoting

Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984)) (first

alteration in original).

AFFIRMED.

See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). We also do not address Moseley’s arguments about the opinions of nonexamining physicians Drs. Keer, Schenk, Sauk, and Pereyra, because he raised these arguments in the district court only in a footnote. See Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.4 (9th Cir. 1996); see also Elmore v. Colvin, 617 F. App’x 755, 757 n.1 (9th Cir. 2015) (unpublished).