Mari Malloy v. Carolyn Colvin , 664 F. App'x 638 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MARI MALLOY, No. 14-35400
Plaintiff-Appellant, D.C. No. 2:13-cv-01488-BAT
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
Brian Tsuchida, Magistrate Judge, Presiding
Submitted October 3, 2016**
Seattle, Washington
Before: W. FLETCHER, GOULD, and N.R. SMITH, Circuit Judges.
Mari Malloy appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for disability benefits
*
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).
under Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. §
1291, and affirm.
1. The administrative law judge (ALJ) denied Malloy’s request for a
consultative evaluation and found Malloy not disabled. The ALJ found that
Malloy did not have a severe mental health impairment and determined Malloy’s
residual functional capacity (RFC) to be such that she could perform light work
without concentrated exposure to heights or hazards. The ALJ found Malloy to be
not credible, and gave minimal weight to lay witness testimony of Malloy’s
husband, sister, daughter, and friend. The ALJ relied on a vocational expert’s
testimony that there were jobs in the national economy that one could perform with
the described RFC, as well as an RFC of sedentary work limited to occasional
posturing and no use of ladders, rope, or scaffolding, and avoiding concentrated
exposure to heights or hazards.
2. Malloy argues that the ALJ had to provide a consultative
psychological evaluation. “[T]he ALJ has a special duty to fully and fairly develop
the record and to assure that the claimant’s interests are considered.” Brown v.
Heckler, 713 F.2d 441, 443 (9th Cir. 1983). But the “duty to conduct an
appropriate inquiry” is triggered “when there is ambiguous evidence or when the
record is inadequate to allow for proper evaluation of the evidence.” McLeod v.
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Astrue, 640 F.3d 881, 885 (9th Cir. 2011). Here, the record was neither ambiguous
nor inadequate to permit the ALJ to make a proper evaluation, and indeed
contained the results of two psychological evaluations performed after the date last
insured.
3. Malloy argues that the ALJ erred in giving only limited weight to the
lay witnesses’ statements of her relatives and a friend. Generally, “an ALJ must
consider lay witness testimony concerning a claimant’s ability to work.” Stout v.
Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); see also 20 C.F.R.
§ 404.1513(d)(4). But an “ALJ may expressly disregard lay testimony if the ALJ
‘gives reasons germane to each witness for doing so.’” Turner v. Comm’r, Soc.
Sec. Admin, 613 F.3d 1217, 1224 (9th Cir. 2010). The ALJ gave germane reasons
for giving little weight to the lay witness statements, including inconsistency with
the medical record and with Malloy’s reported activities. Substantial evidence
supports these reasons.
4. Malloy challenges the ALJ’s determination that she was not credible.
“For the ALJ to reject the claimant’s complaints, she must provide ‘specific,
cogent reasons for the disbelief.’” Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
1995) (quoting Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). Absent
evidence of malingering, “the Commissioner’s reasons for rejecting the claimant’s
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testimony must be ‘clear and convincing.’” Id. (quoting Swenson v. Sullivan, 876
F.2d 683, 687 (9th Cir. 1989)). But here the ALJ gave specific, cogent reasons for
disbelieving Malloy’s testimony on the severity, persistence, and limiting effects
of her symptoms, such as inconsistencies with the medical records and her reported
activities. See Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002). The
ALJ could reasonably find Malloy not credible.1
5. Malloy asserts that it was error for the ALJ to reject her claim at step
two of the five-step disability determination sequence, that her mental health
limitations constituted a severe impairment. “[An] impairment must result from
anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques. A physical or
mental impairment must be established by medical evidence consisting of signs,
symptoms, and laboratory findings, not only by [the claimant’s] statement of
symptoms.” 20 C.F.R. § 404.1508 (emphasis added). The record showed
“minimal and inconsistent treatment” for any psychological symptoms Malloy may
have experienced. We do not take on the role of the ALJ, in weighing disputed
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The district court held that an ALJ statement that Malloy had engaged in
drug-seeking behavior was not supported by substantial evidence. We agree, but
because the ALJ gave other specific, cogent reasons for finding Malloy not
credible, this error was inconsequential. Tommasetti v. Astrue, 533 F.3d 1035,
1038 (9th Cir. 2008).
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evidence. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Substantial
evidence supports the ALJ’s step-two finding.
6. Malloy also contends that the ALJ erred in finding that Malloy could
perform light work so long as she avoided concentrated exposure to heights and
hazards. She contends the ALJ erred in rejecting the conclusions of two non-
examining consultants that Malloy was limited to sedentary work. The ALJ
explained that the medical evidence contradicted the consultants’ conclusions,
citing findings that Malloy’s lumbar and cervical spine displayed only mild
degenerative changes, as well as Malloy’s consistent presentation of normal arm
strength, leg functioning, gait, range of extremity and neck motion, and motor and
sensory function. It was not error to disregard the conclusions upon which Malloy
relies based on this contradictory objective evidence. Batson v. Comm’r, Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). And even if Malloy was limited to
sedentary work, the vocational expert identified two jobs for which Malloy is
qualified and could perform.
7. Malloy contends that the ALJ improperly disregarded her claimed
nonexertional limitations, such as pain and cognitive issues. But that evidence was
based on her reporting. The ALJ properly found Malloy was not credible, and so
did not err in rejecting her claims of nonexertional limitations.
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8. Malloy’s other arguments are without merit.
AFFIRMED.
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