Randy Dunn v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDY JAMES DUNN, No. 15-35107
Plaintiff-Appellant, D.C. No. 6:14-cv-00266-HZ
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted May 7, 2018**
Before: FARRIS, CANBY and LEAVY, Circuit Judges.
Randy Dunn appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Dunn’s application for social security
supplemental security income and disability insurance benefits under Titles II and
XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo, Ghanim v. Colvin, 736 F.3d 1154, 1159 (9th Cir. 2014), and we
affirm.
The ALJ gave a specific and legitimate reason for assigning little weight to
the opinion of treating psychiatrist Dr. Barrett and treating therapist Ms. Teixeira
because it was inconsistent with their treatment notes. Batson v. Comm’r Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ need not accept opinion of even
treating physician if it is inadequately supported). Any error in the additional
reasons provided by the ALJ were harmless. See, e.g., Parra v. Astrue, 481 F.3d
742, 747 (9th Cir. 2007).
The ALJ gave the following specific and legitimate reasons for assigning
little weight to the opinion of Dr. Steffey and Mr. Stanley because: (1) it was
inconsistent with his activities; and (2) medical records contemporaneous to Dr.
Steffey’s last contact with Dunn contradict the physical limitations cited in the
assessment. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (holding an
ALJ may reject an opinion when the physician sets forth restrictions that “appear to
be inconsistent with the level of activity that [the claimant] engaged in”);
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding that an ALJ
may reject a medical opinion when it is inconsistent with contemporaneous
treatment notes). Any error in the ALJ’s additional reason was harmless because he
identified other specific and legitimate reasons to discount their opinion. Molina v.
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Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
The ALJ properly gave “little weight” to Dr. Charnecki’s opinion because
she mostly refers to Dunn’s limitations in cold weather, not his maximum
capabilities. The ALJ’s inference that Dr. Charnecki based her opinion on other
treating sources’ notes is unsupported because she does not cite any other sources
in her opinion. This error is harmless because the ALJ properly discounted her
opinion because she emphasized Dunn’s limitations in cold weather.
The ALJ gave significant weight to Dr. Bartol’s opinion and properly
accounted for Dr. Bartol’s opinion by limiting Dunn to simple, repetitive, 1-2 step
tasks. An ALJ’s RFC assessment of a claimant adequately captures restrictions
related to concentration, persistence, or pace where the assessment is “consistent
with restrictions identified in the medical testimony.” Stubbs-Danielson v. Astrue,
539 F.3d 1169, 1174 (9th Cir. 2008). In Stubbs-Danielson, the Ninth Circuit held
that an RFC of “simple, routine, repetitive” work was consistent with an examining
doctor’s opinion that claimant can carry out “very short simple instructions.” Id.
Thus, the ALJ’s RFC properly incorporated Dunn’s concentration deficits by
limiting him to simple tasks.
The ALJ properly found that Drs. Givi and Davies’s opinion supported his
RFC of simple, repetitive, 1 to 2 step tasks. This adequately incorporated their
opinion that Dunn’s anxiety lowered his test scores and he had no more than a mild
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limitation in any mental activity that did not involve complex task or instructions.
Batson v. Comm’r of the SSA, 359 F.3d 1190, 1193 (9th Cir. 2004).
The ALJ identified specific, clear and convincing reasons that are supported
by substantial evidence for discounting Dunn’s testimony regarding the debilitating
effects of his symptoms: his drug-seeking behavior and benign objective findings.
See Lewis v. Astrue, 498 F.3d 909, 910 (9th Cir. 2007) (holding that drug-seeking
behavior may undermine a claimant’s credibility because it suggests motivation to
exaggerate symptoms in order to obtain drugs); Burch v. Barnhart, 400 F.3d 676,
680 (9th Cir. 2005) (holding that an ALJ can consider a lack of supporting medical
evidence when assessing credibility).
The ALJ properly gave his mother Ms. Davis’s testimony only partial
weight because it was inconsistent with the objective medical evidence.
Inconsistency with medical evidence is a germane reason for discrediting lay
witness testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Any
error in the ALJ’s additional reason was harmless because the ALJ provided a
germane reason. Molina, 674 F.3d at 1122 (upholding ALJ decision where error is
inconsequential to the ultimate nondisability determination).
AFFIRMED.
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