Harris v. Commissioner of Social Security Administration , 605 F. App'x 612 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANITA L. HARRIS, No. 13-35378
Plaintiff - Appellant, D.C. No. 3:12-cv-00395-JE
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted March 3, 2015
Portland, Oregon
Before: FISHER, PAEZ, and IKUTA, Circuit Judges.
Anita Harris appeals the district court’s judgment affirming the
Commissioner’s denial of disability insurance benefits (“DIB”) and supplemental
security income (“SSI”), alleging several errors. She requests that we reverse and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
remand for an award of benefits. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
1. Substantial evidence supported the ALJ’s decision to discredit the
opinions of Harris’s treating physicians. See Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995).
The ALJ did not err in crediting treating surgeon Dr. Soldevilla’s opinion
only to the extent it was consistent with Harris’s residual functional capacity
(“RFC”). The ALJ reasonably interpreted Dr. Soldevilla’s statement that Harris
would have “difficulty” working in a full-time competitive work environment as
equivocal. This interpretation comported with the ALJ’s ultimate determination
that Harris could perform less than the full range of sedentary work.
2. Nor did the ALJ err in rejecting medical source statements from Harris’s
treating physician, Dr. Mitchell. Inconsistencies in Dr. Mitchell’s opinions
undermined his credibility. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005). For example, although Dr. Mitchell did not object to Harris’s efforts to
seek full-time employment in 2007 and opined in June 2008 that she could perform
sedentary-to-light work, he stated in a December 2008 letter, without examining
her in the interim, that she was permanently unable to work. Moreover, Dr.
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Mitchell failed to support several of his opinions, such as his assessment of
radiculopathy, with objective medical evidence.
3. The ALJ did not err in rejecting Harris’s subjective pain testimony as not
credible. The ALJ provided two specific, clear, and convincing reasons for his
credibility determination. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007). First, he cited objective medical evidence that conflicted with Harris’s
claims of debilitating pain. Second, he provided substantial evidence of Harris
seeking “increasingly infrequent care.” Although an ALJ should not reject a
claimant’s credibility if the claimant has “good” reasons for gaps in her treatment,
Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007), failure to assert a good reason
may “cast doubt on the sincerity of the claimant’s pain testimony,” Fair v. Bowen,
885 F.2d 597, 603 (9th Cir. 1989). Harris contends on appeal that she did not want
to risk another failed surgery. Although this is an acceptable reason under the
governing regulations, 20 C.F.R. §§ 404.1530(c)(3), 416.930(c)(3), Harris did not
assert this reason before the ALJ, and in any event, she has failed to explain the
nearly two-year gap in pursuing any other kind of medical treatment, such as
visiting a primary care physician for medications, physical therapy, or pain
management.
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4. The ALJ did not fail to exercise his duty to fully and fairly develop the
record. “Ambiguous evidence, or the ALJ’s own finding that the record is
inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s duty
to conduct an appropriate inquiry.” Tonapetyan v. Halter, 242 F.3d 1144, 1150
(9th Cir. 2001) (internal quotation marks omitted); see also SSR 96-5p. Harris
argues that the ALJ should have requested additional records pertaining to Harris’s
cervical spine impairment, including workers’ compensation records, independent
medical examinations, and physical therapy and chiropractic treatment plans. Yet
Harris fails to explain why the record was ambiguous or inadequate without these
documents or that the missing documents would have compelled a more favorable
outcome.
Because we affirm the denial of benefits, we need not address Harris’s
remaining arguments.
AFFIRMED.
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