Tyler Thomas v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 7, 2019
• Docket: 17-35822
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 07 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TYLER N. THOMAS, No. 17-35822

Plaintiff-Appellant, D.C. No. 2:16-cv-01429-TLF

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

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Theresa Lauren Fricke, Magistrate Judge, Presiding

Submitted June 5, 2019**

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges

Tyler Thomas appeals the district court’s order affirming the Social Security

Administration’s denial of disability benefits. We have jurisdiction pursuant to 28

* 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). U.S.C. § 1291. We review the district court’s order de novo and the agency’s

decision for substantial evidence and legal error. Molina v. Astrue, 674 F.3d 1104,

1110 (9th Cir. 2012). We affirm.

The ALJ’s finding that mental impairments were mild is supported by the

mental health records. In any event, the ALJ considered the combined impact of

all impairments. Therefore, any error in finding only mild mental impairments at

step two would be harmless in this case. Buck v. Berryhill, 869 F.3d 1040, 1048-

49 (9th Cir. 2017). Moreover, the ALJ incorporated the mental limitations noted

by the experts into the residual functional capacity assessment by limiting Thomas

to unskilled work with only occasional public interaction. As a result, the ALJ

properly assessed mental limitations. Stubbs-Danielson v. Astrue, 539 F.3d 1169,

1173-74 (9th Cir. 2008).

The ALJ considered the medical evidence and did not err by giving weight

to the opinions of Dan Phan, M.D., and Brenda Havellana, Ph.D., who examined

Thomas. These opinions were entitled to more weight than those of the mental

health professionals who only reviewed the records. Ghanim v. Colvin, 763 F3.d

1154, 1160 (9th Cir. 2014). Contrary to Thomas’s claim, both doctors’ opinions

were supported by examination findings and were consistent with treatment

records and the record as a whole.

2 The ALJ gave specific, clear and convincing reasons supported by

substantial evidence for finding that Thomas was not entirely credible: (1) Thomas

stopped working for reasons other than disability; (2) the testimony conflicted with

the clinical findings in the record; (3) Thomas failed to seek or follow prescribed

treatment for allegedly disabling pain; and (4) the testimony was inconsistent with

daily living activities. The ALJ could reject the testimony for these reasons.

Molina, 674 F.3d at 1112-13; Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.

2001). Moreover, the record was sufficiently developed for the ALJ to reasonably

conclude that claims of disabling anxiety and back pain were inconsistent with

daily living activities, including the ability to obtain a two-year community college

degree, shop for one or two hours at a time, work on a farm, play pool weekly in a

pool league, and occasionally golf.

Nor did the ALJ otherwise fail to develop the record. The ALJ questioned

Thomas about additional evidence, left the record open after the hearing, added

new treatment records after the hearing, and considered the new evidence. An ALJ

may discharge his duty to develop the record by keeping the record open after the

hearing to allow supplementation of the record. Tonapetyan v. Halter, 242 F.3d

1144, 1150 (9th Cir. 2001). The final administrative record is not ambiguous.

Mental and medical experts examined Thomas and filled out residual functional

3 capacity assessments that were consistent with treatment records and the record as

a whole. Id. (noting that ambiguity triggers a duty to develop the record).

The ALJ also gave a germane reason for finding that Marisue Thomas was

not credible. Her statements conflicted with treatment records, which noted that

Thomas was not in distress, could ambulate without difficulty, and could maintain

attention and interact with other people. The ALJ could rely on the inconsistency

between the statements and medical evidence to reject the lay testimony. Bayless

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

Because the residual functional capacity assessment was supported by

substantial evidence and the ALJ incorporated the supported limitations into the

questions to the vocational expert, the ALJ did not err in finding that Thomas could

perform other work. Id. at 1217.

AFFIRMED.