Ruth Fry v. Nancy Berryhill ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUTH FRY, No. 17-15487
Plaintiff-Appellant, No. CV-15-01771-SPL
v. MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Steven P. Logan, District Judge, Presiding
Submitted January 29, 2019**
Before: LEAVY, TALLMAN, and R. NELSON, Circuit Judges.
Ruth Fry appeals the district court’s affirmance of the Commissioner of
Social Security’s denial of her application for supplemental security income under
Title XVI of the Social Security Act. We review the district court’s denial de novo
and can reverse the ALJ’s decision only if her “findings are based on legal error or
*
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).
are not supported by substantial evidence in the record.” Attmore v. Colvin, 827
F.3d 872, 875 (9th Cir. 2016). We affirm.
Any error the ALJ committed by not finding Fry’s migraines or mental
health symptoms constituted severe impairments at Step Two was harmless. The
ALJ ultimately decided Step Two in Fry’s favor, meaning she “could not possibly
have been prejudiced” at this stage of the analysis. See Buck v. Berryhill, 869 F.3d
1040, 1049 (9th Cir. 2017).
The ALJ proffered specific, clear, and convincing reasons for discounting
Fry’s testimony concerning the severity of her symptoms, including
inconsistencies between her daily activities and alleged limitations, a lack of
objective medical evidence to support Fry’s account, and the effectiveness of Fry’s
conservative treatment. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir.
2012); Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009);
Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).
Regarding the ALJ’s reliance on the lack of medical evidence, the record
indicates Fry’s treating neurologist, Dr. Salazar-Calderon, opined Fry’s migraines
were well controlled with medication and that her migraine symptoms have
improved over time. Although Fry alleges she still experiences migraine
symptoms, “[i]mpairments that can be controlled effectively with medication are
not disabling for the purpose of determining eligibility for [social security]
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benefits.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.
2006). Concerning Fry’s objection that the ALJ failed to explain how her daily
activities translate into performing competitive work, “[e]ven where [a claimant’s]
activities suggest some difficulty functioning, they may be grounds for discrediting
the claimant’s testimony to the extent that they contradict claims of totally
debilitating impairment.” Molina, 674 F.3d at 1113. Finally, we reject Fry’s
argument that the ALJ erred in characterizing her treatment as conservative,
particularly regarding her injection and cervical fusion surgery. Fry cites Garrison
v. Colvin, 759 F.3d 995, 1015 n.20 (9th Cir. 2014), where the court reversed an
ALJ’s denial of benefits and stated that “[i]n any event, we doubt that epidural
steroid shots to the neck and lower back qualify as ‘conservative’ medical
treatment.” Contrary to Fry’s argument, the Garrison court did not base its holding
on whether the claimant’s treatment was conservative or not. Rather, the court held
that the ALJ erred by discounting the claimant’s testimony where there was no
evidence in the record that the provided treatment alleviated the claimant’s pain.
Id. at 1015. Furthermore, even if the ALJ erred by describing Fry’s treatment as
conservative, the ALJ offered other clear and convincing reasons for discounting
Fry’s testimony, rendering any error harmless. See Carmickle v. Comm’r, Soc. Sec.
Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
The ALJ provided specific and legitimate reasons supported by substantial
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evidence for discounting the contradicted opinion of treating cardiologist Dr. Loli
and germane reasons for discounting the opinion of physical therapist Mr.
Jorgensen. See Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017); Molina, 674
F.3d at 1111. Fry advocates for an alternative to the ALJ’s rational interpretation of
the medical evidence, which we uphold. See Ryan v. Comm’r Soc. Sec. Admin.,
528 F.3d 1194, 1198 (9th Cir. 2008). Although the ALJ did not explain how Fry’s
travel to Colorado and joining a gym conflicted with Dr. Loli’s and Mr.
Jorgensen’s opinions, the error was harmless because the ALJ provided other valid
reasons for affording their opinions little weight. Cf., Molina, 674 F.3d at 1115.
The ALJ did not commit harmful error in assigning little weight to
examining psychologist Dr. Bowen’s opinion. The ALJ permissibly relied upon the
fact that Dr. Bowen did not have access to subsequent treatment records indicating
Fry’s medications for her mental health symptoms were working well. While the
ALJ did not specifically explain why Fry’s travel to Colorado was inconsistent
with Dr. Bowen’s opinion, the Court “must uphold [the agency’s decision] ‘if the
agency’s path may reasonably be discerned.’” See Molina, 674 F.3d at 1121. The
notation in Fry’s medical records concerning her trip to Colorado states she was
“going to Colorado with a friend to help another friend on their ranch.” The social
aspects of this travel ostensibly contradict Dr. Bowen’s opinion that Fry’s “ability
to get along with others is limited” and that she “would have difficulties interacting
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with co-workers and/or supervisors,” meaning the ALJ’s path may be reasonably
discerned. Id. In addition, even if the ALJ erred by relying upon these grounds, the
ALJ provided other legally valid reasons for not including the opined social
limitations in Fry’s RFC, and so any error was harmless. See id. at 1115.
AFFIRMED.
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