Rachel Stout v. Nancy Berryhill , 696 F. App'x 838 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RACHEL EILEEN STOUT, No. 15-35880
Plaintiff-Appellant, D.C. No. 3:14-cv-01697-JO
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Submitted August 23, 2017**
Before: D.W. NELSON, TROTT, and SILVERMAN, Circuit Judges.
Rachel Stout appeals the district court’s decision affirming 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
*
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).
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012), and we affirm.
The administrative law judge (“ALJ”) provided specific, clear and
convincing reasons for rejecting Stout’s testimony regarding debilitating back pain
by explaining that this testimony was contradicted by medical treatment notes,
including records indicating that Stout’s pain was fairly well controlled with
medications, and by evidence of Stout’s daily activities. See Treichler v. Comm’r
of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (explaining requirements
for ALJ’s assessment of claimant’s testimony). Substantial evidence supports the
ALJ’s finding that Stout’s back pain was fairly well controlled with medications.
See Hill, 698 F.3d at 1158 (holding that Commissioner’s decision will be upheld if
it is supported by substantial evidence). Additional substantial evidence, including
notes stating that Stout had a limited range of motion but normal gait, reflexes, and
strength, further supports the ALJ’s finding that the treatment notes in the record
were inconsistent with the claimant’s testimony. See Carmickle v. Comm’r, Soc.
Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (holding that ALJ may rely on
contradiction between testimony and medical record). The ALJ also properly
relied on evidence of Stout’s daily activities. See Molina v. Astrue, 674 F.3d 1104,
1113 (9th Cir. 2012) (holding that, in reaching a credibility determination, an ALJ
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may weigh inconsistencies between the claimant’s testimony and her daily
activities).
The ALJ provided germane reasons for discounting in part the statement of a
lay witness by explaining that the statement was inconsistent with the medical
evidence and Stout’s daily activities. See id. at 1114 (holding that in order to
discount competent lay witness testimony, the ALJ must give reasons that are
germane to each witness); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir.
2005) (holding that inconsistency with medical evidence is a germane reason for
discrediting the testimony of lay witnesses). The ALJ also properly relied on the
witness’s close friendship with Stout. See Greger v. Barnhart, 464 F.3d 968, 972
(9th Cir. 2006) (holding that ALJ properly discounted lay testimony that was
possibly influenced by the witness’s desire to help the claimant).
The ALJ fulfilled her duty to develop the record by obtaining more recent
medical evidence than the evidence submitted by Stout and by keeping the record
open after the hearing. See Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930-31
(9th Cir. 2014) (holding that the ALJ has a duty to fully and fairly develop the
record and explore for all the relevant facts); Tonapetyan v. Halter, 242 F.3d 1144,
1150 (9th Cir. 2001) (explaining ways in which the ALJ may discharge her duty to
develop the record).
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At Step Five of the sequential analysis, the ALJ correctly concluded that
under the Medical-Vocational Guidelines, or grids, Stout must be considered not
disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, 202.14 & 202.15; Lounsburry v.
Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006) (explaining that when a claimant
has both exertional and nonexertional impairments, the ALJ must first determine
whether, under the grids, the claimant’s exertional impairments by themselves
warrant a finding of disability). The ALJ then correctly proceeded to examine the
effects of Stout’s nonexertional impairments, with the assistance of a vocational
expert. See id. at 1116; Social Security Ruling 83-12 (providing that when a
claimant’s exertional level falls between two grids that direct opposite conclusions
regarding disability, the assistance of a vocational expert “is advisable”). The ALJ
properly relied on the vocational expert’s testimony in finding that Stout could
perform two light, unskilled jobs. See Zavalin v. Colvin, 778 F.3d 842, 846 (9th
Cir. 2015).
AFFIRMED.
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