Wilder v. Commissioner of Social Security Administration ( 2013 )

FILED
NOT FOR PUBLICATION NOV 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAN WILDER, No. 12-35452
Plaintiff - Appellant, D.C. No. 3:11-cv-308-HA
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Argued and Submitted November 6, 2013
Portland, Oregon
Before: ALARCÓN, M. SMITH, and HURWITZ, Circuit Judges.
Nan Wilder appeals from a district court judgment affirming the decision of
the Social Security Commissioner denying her claim for Disability Insurance
Benefits and Supplemental Security Income. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I
Wilder contends the ALJ erred by failing to include the step-three finding
that Wilder had moderate “difficulties in maintaining concentration, persistence
and pace” in Wilder’s residual functional capacity (RFC) assessment and in the
hypothetical posed to a vocational expert (VE). We disagree. The medical
evidence in this record does not support any work-related limitation in Wilder’s
ability to sustain concentration, persistence, or pace. Substantial evidence
therefore does not support functional limitations more severe than limitation to
“simple, routine, repetitive work” accounted for in the RFC and the hypothetical
question posed to the VE. See, e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169,
1174 (9th Cir. 2008) (“[A]n ALJ’s 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.”).
II
Wilder also argues the ALJ erred because she disregarded lay-witness
testimony from Wilder’s counselor, Gina Patriarca, without providing reasons
germane to Patriarca for doing so. The ALJ specifically stated that she disregarded
Patriarca’s testimony for relying too heavily on Wilder’s subjective complaints and
for “inadvertently assum[ing] the role of advocate” for a position that “depart[ed]
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substantially from the rest of the evidence in the record.” The ALJ set out clear
and convincing reasons for rejecting Wilder’s subjective complaints, and no party
challenges this adverse-credibility determination. That Patriarca also relied in part
on objective observations does not obviate her heavy reliance on Wilder’s self
reports. In addition, substantial evidence supports the ALJ’s determination that
Patriarca’s opinions conflicted with other medical evidence in the record. See
Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“One reason for which an ALJ
may discount lay testimony is that it conflicts with medical evidence.”).
III
Wilder maintains further that the Appeals Council erred in affirming the
ALJ’s decision without remarking on new and material medical evidence she
submitted from Dr. James Powell. “We have held that we do not have jurisdiction
to review a decision of the Appeals Council denying a request for review of an
ALJ’s decision, because the Appeals Council decision is a non-final agency
action.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161–62 (9th Cir.
2012) (citing Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir.
2011)).
The Commissioner concedes, as she must, that Dr. Powell’s opinion
nevertheless became part of the administrative record on appeal once the Appeals
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Council denied review. Brewes, 682 F.3d at 1163. But Dr. Powell’s opinion does
not merit remand. Objectively verifiable results from concentration tests
Dr. Powell administered belie his suggestion that Wilder has a serious “impairment
in the area of sustained concentration and pace.” And to the extent that this
opinion was based on Wilder’s subjective reporting of her symptoms, the opinion
lacks weight because the ALJ found Wilder not credible.
IV
We decline to remand under Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010),
for the ALJ to consider Wilder’s October 26, 2009 disability determination.
Wilder’s failure to raise this subsequent disability determination before the district
court precludes remand under sentence six of 42 U.S.C. § 405(g). See Booz v.
Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984) (“For this
court to order a remand, [the claimant] must show ‘that there is new evidence
which is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding . . . .’” (omission in original)
(quoting 42 U.S.C. § 405(g))).
AFFIRMED.
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