Brandon McCleery v. Carolyn Colvin ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 05 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRANDON MCCLEERY, No. 15-35034
Plaintiff - Appellant, D.C. No. 1:13-cv-01424-SU
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Submitted March 25, 2016**
San Francisco, California
Before: D.W. NELSON, GRABER, and WATFORD, Circuit Judges.
Claimant Brandon McCleery appeals the district court’s decision affirming
the Commissioner of Social Security’s denial of Claimant’s application for
disability insurance benefits and supplemental security income under Titles II and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
XVI of the Social Security Act. At step four of the sequential evaluation process,
the administrative law judge ("ALJ") determined that Claimant could perform his
past relevant work as a sales attendant, cashier/checker, and customer service clerk.
Reviewing the district court’s decision de novo, Molina v. Astrue, 674 F.3d 1104,
1110 (9th Cir. 2012), we affirm.
The ALJ’s observation that physician assistant Terry Jones "provided no
supporting diagnostic or objective evidence to support his assessment" that
Claimant had a residual functional capacity ("RFC") for less than sedentary work
constitutes a "germane" reason for discounting Jones’ July 2011 opinion. Id. at
1111. Jones’ notes do not reflect or refer to objective medical findings that would
support the specific functional limitation that he identified. The ALJ was not
required to address separately each of Jones’ other statements reflecting his
opinion that Claimant was unable to work. Hiler v. Astrue, 687 F.3d 1208, 1212
(9th Cir. 2012).
The ALJ provided specific, clear, and convincing reasons for finding
Claimant’s testimony less than fully credible. First, the ALJ properly observed
that Claimant’s treatment history suggested that he was not as limited as he
alleged. Molina, 674 F.3d at 1113. For example, the ALJ noted that Claimant’s
headaches had improved, and he reasonably concluded that Claimant’s failure to
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pursue alternative treatment for his headaches suggested that Claimant’s
impairments were not as severe as he had alleged. Id. Second, the ALJ properly
considered an examining physician’s opinion that Claimant made inconsistent
statements in providing his history and that Claimant’s reports of his pain were
likely exaggerated. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see also
Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Third, the ALJ properly
considered the lack of objective medical evidence supporting the severity of
symptoms that Claimant reported. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.
2005).
AFFIRMED.
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