Smith v. Commissioner Social Security Administration , 602 F. App'x 390 ( 2015 )

FILED
NOT FOR PUBLICATION MAY 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYNTHIA SMITH, No. 13-35164
Plaintiff - Appellant, D.C. No. 6:11-cv-01263-MA
v.
MEMORANDUM*
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Submitted January 26, 2015
Before: GOODWIN, PREGERSON, and BERZON, Circuit Judges.
Cynthia Smith appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Smith’s application for disability
insurance under Title II of the Social Security Act. Smith alleged disability due to
pain caused by a fractured back. We review the district court’s order de novo, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
may set aside the denial of benefits only if it is not supported by substantial
evidence or is based on legal error. Molina v. Astrue, 674 F.3d 1104, 1110 (9th
Cir. 2012). We have jurisdiction under 28 U.S.C. § 1291. We affirm.
The administrative law judge (“ALJ”) provided specific, clear, and
convincing reasons for finding Smith not entirely credible. First, the ALJ properly
considered that Smith’s complaints of pain were not proportionate to the medical
evidence. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir, 2005) (holding that
lack of medical evidence cannot form the sole basis for discounting pain testimony,
but is a factor that an ALJ may consider). Second, the ALJ cited Smith’s failure to
pursue her physician’s recommended treatment as a legitimate specific reason. See
Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (holding that an unexplained
failure to follow a prescribed treatment is a specific reason to discount credibility).
Third, the ALJ’s finding–that Smith’s daily activities, and her poor motivation,
undermined her credibility–also is supported by the record. See Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
Robert Smith’s lay witness testimony was similar to Smith’s testimony, and
the ALJ did not separately address his testimony. Because the ALJ properly
discounted the claimant’s similar testimony, the ALJ gave germane reasons for
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rejecting Robert Smith’s testimony. See Valentine v. Comm’r Soc. Sec. Admin.,
574 F.3d 685, 694 (9th Cir. 2009).
The ALJ did not err in giving significant weight to the opinion of examining
physician Dr. Webster, and discounting the opinions of treating physician Dr.
Nelson and examining physician Dr. El-Attar. First, the ALJ’s finding that Dr. El-
Attar’s disability conclusion was inconsistent with her own examination findings is
a clear and convincing reason for not relying on the doctor’s opinion. See Bayliss
v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (holding that contradictions
between a doctor’s opinion and that doctor’s own observations is a clear and
convincing reason). Second, the ALJ provided clear and convincing reasons for
giving less weight to the contradicted opinion of treating physician Dr. Nelson
where: the opinion was conclusory, see Meanel v. Apfel, 172 F.3d 1111, 1113-14
(9th Cir. 1999) (holding that a conclusory opinion may be rejected); the opinion
relied in part on Smith’s discredited testimony, see Fair, 885 F.3d at 605 (holding
that a doctor’s reliance on properly discounted subjective complaints is a specific,
legitimate reason); and Dr. Nelson acted as an advocate for Smith’s disability, see
Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). Third, the record
supports the ALJ’s crediting of Dr. Webster’s opinion that Smith’s pain was not
disabling.
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Finally, the limitations set forth in the ALJ’s residual functional capacity
assessment, and in the hypothetical posed to the vocational expert, included all of
Smith’s limitations that were supported in the record. See Bayliss, 427 F.3d at
1217-18.
Accordingly, substantial evidence supports the ALJ’s determination that
Smith was not disabled within the meaning of the Social Security Act.
AFFIRMED.
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