Dustin Whitten v. Carolyn Colvin , 642 F. App'x 710 ( 2016 )

FILED
NOT FOR PUBLICATION
MAR 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUSTIN T. WHITTEN, No. 14-35863
Plaintiff - Appellant, D.C. No. 3:13-cv-05554-RBL
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted March 9, 2016**
Before: LEAVY, GRABER, and OWENS, Circuit Judges.
Dustin T. Whitten appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for supplemental
security income under Title XVI of the Social Security Act. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review de novo, Molina v. Astrue, 674 F.3d 1104,
1110 (9th Cir. 2012), and we affirm.
The administrative law judge (ALJ) provided specific and legitimate reasons
for giving little weight to the opinions of examining psychologists Dr. Wingate and
Dr. Parker as to the severity of Whitten’s mental health limitations. The ALJ
reasonably determined that the opinions were contradicted by Whitten’s
longitudinal treatment records, his responses on his mental status examinations, his
activities of daily living, and the opinion of state agency non-examining
psychologist Dr. Robinson, whose conclusion that Whitten was able to understand,
remember, and carry out simple and repetitive instructions was consistent with
other evidence in the record. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th
Cir. 2008) (noting that an “incongruity” between a doctor’s opinion and his
medical records may suffice as a specific and legitimate reason for rejecting that
doctor’s opinion); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (a
contrary opinion of a non-examining medical expert may constitute substantial
evidence when it is consistent with other independent evidence in the record).
In view of the medical evidence, the ALJ also gave germane reasons for
giving little weight to nurse practitioner Nancy Armstrong’s opinion that Whitten’s
shoulder and back pain, sleep apnea, and fatigue rendered him disabled. See 20
2
C.F.R. § 404.1513(a), (d)(1) (nurse practitioner is considered an “other” medical
source); Molina, 674 F.3d at 1111 (holding that an ALJ may discount testimony
from “other sources” if the ALJ provides germane reasons for doing so). The ALJ
also did not err by failing to discuss Whitten’s Global Assessment of Function
(GAF) scores and the clinical notes from Whitten’s consultations with therapist
Victoria Davis, because this evidence was neither probative nor significant in light
of the other evidence in the record. See 20 C.F.R. § 404.1513(a); Vargas v.
Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998) (a GAF score is merely a rough
estimate of an individual’s psychological, social, or occupational functioning used
to reflect an individual’s need for treatment and not for rating a person’s ability to
work); Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam)
(ALJ need not discuss evidence that is not significant and probative).
The ALJ also provided specific, clear, and convincing reasons for rejecting
Whitten’s testimony and the lay witness testimony concerning his mental health
limitations and shoulder and back pain. First, the ALJ’s findings that Whitten’s
mental health symptoms, overall, were unremarkable are supported by inferences
reasonably drawn from the record. See Molina, 674 F.3d at 1111 (“Even when the
evidence is susceptible to more than one rational interpretation, we must uphold
the ALJ’s findings if they are supported by inferences reasonably drawn from the
3
record.”). Second, the ALJ found that Whitten’s testimony regarding the severity
of his symptoms was undermined by his reports about his daily activities. See
Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1991) (concluding that claimant’s
testimony about daily activities may be seen as inconsistent with the presence of a
disabling condition). Finally, the ALJ reasonably determined that Whitten’s poor
work history suggested that his primary barrier to work was his lack of motivation,
rather than a disability. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)
(noting that claimant “had an extremely poor work history and has shown little
propensity to work in her lifetime, which negatively affected her credibility
regarding her inability to work”).
The ALJ also gave germane reasons for giving little weight to the lay
witness testimony of Whitten’s girlfriend, her children, and Whitten’s roommate
because their statements described essentially the same limitations as Whitten’s
own testimony. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th
Cir. 2009). Whitten’s argument that the ALJ’s step-five finding did not include all
of Whitten’s limitations and that the ALJ’s hypothetical to the vocational expert
was incomplete, simply restates his argument that the ALJ improperly discounted
his testimony and the lay witness testimony in making the residual functional
4
capacity determination. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76
(9th Cir. 2008).
Finally, Whitten fails to raise a colorable claim that the Commissioner
violated his procedural due process rights by failing to include later-submitted
evidence in the administrative record. Here, the evidence submitted to the Appeals
Council post-dated the ALJ’s decision and, therefore, the Commissioner properly
did not include it in the administrative record. See 20 C.F.R. § 404.970(b); Brewes
v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) (stating that the
administrative record includes evidence submitted to and considered by the
Appeals Council, so long as the evidence relates to the period on or before the
ALJ’s decision). Whitten’s contention that his right to procedural due process was
violated because the Commissioner’s failure to include the new evidence violated
the Hearings, Appeals, and Litigation Law Manual (HALLEX), is unpersuasive.
See Roberts v. Comm’r Soc. Sec. Admin., 644 F.3d 931, 933 (9th Cir. 2011) (per
curiam) (noting that the agency’s HALLEX manual does not “carry the force of
law and is not binding upon the agency” (quoting Parra v. Astrue, 481 F.3d 742,
749 (9th Cir. 2007))).
AFFIRMED.
5