Christopher Neeley v. Nancy Berryhill , 693 F. App'x 641 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 12 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER LEE NEELEY, No. 14-35670
Plaintiff-Appellant, D.C. No. 3:13-cv-05761-JRC
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
J. Richard Creatura, Magistrate Judge, Presiding
Submitted July 10, 2017**
Before: NELSON, TROTT, and OWENS, Circuit Judges.
Christopher Neeley appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Neeley’s application for social
security disability insurance benefits and supplemental security income under
*
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).
Titles II and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir.
2014), and we affirm.
The Commissioner’s determination at Step Two in the sequential evaluation
process is supported by substantial evidence. Webb v. Barnhart, 433 F.3d 683, 687
(9th Cir. 2005). The ALJ properly relied on the absence of record medical
evidence sufficient to support a determination that Neeley’s chronic pain did not
cause more than minimal limitation in Neeley’s ability to perform basic work
activities. See id. (“[W]e must determine whether the ALJ had substantial
evidence to find that the medical evidence clearly established that [the claimant]
did not have a medically severe impairment or combination of impairments.”).
The ALJ identified several specific, clear and convincing reasons that are
supported by substantial evidence for discounting Neeley’s credibility regarding
the debilitating effects of his symptoms: (1) Neeley made inconsistent statements
regarding his ability to perform other work; (2) Neeley’s symptoms were not
supported by objective medical records; and (3) Neeley’s testimony regarding his
symptoms was inconsistent with his reported activities of daily living. See Orn v.
Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (stating that an ALJ may consider
inconsistencies in testimony in weighing a claimant’s credibility); Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196–97 (9th Cir. 2004) (noting that
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medical records inconsistent with a claimant’s allegations as a permissible reason
to find claimant not credible); see also Molina v. Astrue, 674 F.3d 1104, 1113 (9th
Cir. 2012) (listing among proper considerations for credibility assessment an
engagement in activities of daily living that are inconsistent with the alleged
symptoms). Any error in the ALJ’s additional reasons for undermining Neeley’s
credibility was harmless because three other bases for discounting Neeley’s
testimony adequately support the ALJ’s credibility determination, and each finds
ample support in the record. See Batson, 359 F.3d at 1197 (concluding that, even
if the record did not support one of the ALJ’s stated reasons for disbelieving a
claimant’s testimony, the error was harmless).
The ALJ had a germane reason for assigning only “little weight” to the
opinions of lay source Cheryl Smalley, ARNP and lay witnesses Brian Gavaghan
and Darrel Connerly. Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th
Cir. 2010); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.
2009).
The ALJ included in the residual functional capacity (“RFC”) assessment all
the limitations that were supported by, and consistent with, substantial record
evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Because the
functional limitations identified by the ALJ in the RFC for sedentary work were
supported by the medical evidence that the ALJ credited, there was no harmful
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error at Step 5 of the sequential evaluation process. See Magallanes v. Bowen, 881
F.2d 747, 756–57 (9th Cir. 1989) (explaining that the limitations included in the
hypothetical propounded to a vocational expert need only be supported by
substantial record evidence).
AFFIRMED.
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