Tammy Wallis v. Carolyn W. Colvin , 608 F. App'x 489 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TAMMY S. WALLIS, No. 13-35777
Plaintiff - Appellant, D.C. No. 3:12-cv-05238-RJB
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Submitted June 2, 2015**
Seattle, Washington
Before: O’SCANNLAIN, TASHIMA, and McKEOWN, Circuit Judges.
Tammy S. Wallis appeals from the district court’s order affirming the
Administrative Law Judge’s (“ALJ”) denial of benefits. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
1. Wallis argues that the ALJ erred by not crediting her testimony
regarding her mental and physical limitations. Once a claimant produces objective
medical evidence of an impairment and shows that the impairment could
reasonably be expected to produce some degree of symptoms, “the ALJ can reject
the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d
1273, 1281 (9th Cir. 1996). Here, the ALJ did offer clear and convincing evidence
for rejecting Wallis’s testimony. Specifically, the ALJ cited Wallis’ drug-seeking
behavior, her inconsistent statements about her psychotic symptoms, and her
manipulative behavior. See Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir.
2001) (suggesting that drug-seeking behavior undermines a claimant’s credibility);
Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (stating that a claimant’s
inconsistent statements can constitute “clear and convincing evidence” for
discrediting a claimant). Substantial evidence supports the ALJ’s decision and any
other claimed error “does not negate the validity” of that conclusion. Molina v.
Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (internal quotation marks omitted).
2. Wallis next argues that the ALJ erred by failing to discuss the lay
testimony. The ALJ erred by not discussing the lay testimony. Bruce v. Astrue,
557 F.3d 1113, 1115 (9th Cir. 2009) (“If an ALJ disregards the testimony of a lay
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witness, the ALJ must provide reasons ‘that are germane to each witness’”
(quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996))). The ALJ’s
failure to discuss the lay testimony is, however, harmless because the testimony
describes the same limitations as Wallis’ own testimony, and the ALJ’s valid
reasons for rejecting Wallis’ testimony apply with equal force to the lay testimony.
See Molina, 674 F.3d AT 1122.
3. Wallis next argues that the ALJ did not properly evaluate the medical
evidence in the record concerning Wallis’ mental impairments and limits. This
argument lacks merit. The ALJ’s Residual Functional Capacity (“RFC”)
determination reasonably encompassed the limitations cited by Dr. Morris. See
Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (stating that a
claimant who has deficiencies in concentration, persistence, or pace retains the
ability to perform “simple tasks”). Further, the ALJ’s decision not to accept the
controverted global assessment functioning score given by Barbara Mills, MHP,
was supported by “specific, legitimate reasons.” Matney ex rel. Matney v. Sullivan,
981 F.2d 1016, 1019 (9th Cir. 1992) (“Where conflicting medical opinions exist,
the ALJ must give specific, legitimate reasons for disregarding the opinion of the
treating physician.”). Finally pursuant to the Commissioner’s Program Operations
Manual System (“POMS”), the ALJ did not err in relying on the “narrative”
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section of Dr. Lysak’s mental RFC assessment over the “summary conclusions”
section. POMS DI 25020.010(B)(1); Warre v. Comm’r of Social Sec. Admin, 439
F.3d 1001, 1005 (9th Cir. 2006) (“The POMS does not have the force of law, but it
is persuasive authority.”).
4. Finally, Wallis argues that the ALJ erred in evaluating the medical
evidence pertinent to her alleged physical impairments. The ALJ did not err in not
mentioning all of the evidence Wallis put forth regarding her physical limitations.
The ALJ need only explain why “significant probative evidence has been rejected.”
Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)
(quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (internal quotation
marks omitted)). Because none of the evidence referenced by Wallis is significant
or probative, the ALJ did not err in not specifically discussing it.
Moreover, the ALJ gave clear and convincing reasons for rejecting Dr.
Deem’s recommendation for “light work,” which was based solely on Wallis’
subjective complaints, Dr. Deem and Ms. Miller’s opinions were not consistent
with the related treatment notes and clinical findings. See Tonapetyan v. Halter,
242 F.3d 1144, 1149 (9th Cir. 2001). These reasons apply equally to Dr. Staley’s
opinion; therefore, any error in the ALJ’s consideration of the state agency
evaluation is harmless. See Molina, 674 F.3d at 1115, 1121-22.
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5. Finally, Wallis makes a conclusory argument that the ALJ improperly
determined her RFC and erred in basing her step-five finding on a hypothetical that
did not include all of her limitations. This argument simply reiterates Wallis’
arguments discussed above. For the reasons set forth above, these arguments have
no merit.
AFFIRMED.
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