Glen George v. Nancy Berryhill ( 2018 )

FILED
NOT FOR PUBLICATION
MAR 26 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLEN GEORGE, No. 15-35348
Plaintiff-Appellant, D.C. No. 3:13-CV-1505-AC
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted March 22, 2018**
Before: FARRIS, CANBY, and LEAVY, Circuit Judges.
Glen George appeals the district court’s affirmance of the Commissioner of
Social Security’s denial of his application for disability insurance benefits under
Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291
*
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).
and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875
(9th Cir. 2016), and we affirm.
The administrative law judge (“ALJ”) did not err by affording more weight
to examining psychologist Dr. Bates-Smith’s opinion and discounting treating
psychologist Dr. Smurthwaite’s opinion. Although George contends the ALJ was
required to proffer clear and convincing reasons for rejecting portions of Dr.
Smurthwaite’s opinion because his assessment of George was uncontradicted,
George did not raise this argument in the district court. Therefore, the Court need
not consider this argument on appeal. See Sandgathe v. Chater, 108 F.3d 978, 980
(9th Cir. 1997) (per curiam).
Even if this argument were properly before the Court, it lacks merit, as the
record shows Dr. Smurthwaite’s opinion was contradicted. Dr. Smurthwaite’s
opinion diverges from that of Dr. Bates-Smith concerning George’s ability to
complete simple tasks. While Dr. Bates-Smith concluded George had no
limitations concerning his ability to carry out simple instructions, Dr. Smurthwaite
opined George would need long, frequent breaks from even a simple, routine job.
As a result, the ALJ was only required to provide specific and legitimate reasons
supported by substantial evidence for discounting Dr. Smurthwaite’s opinion. See
Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017).
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In addition, the reasons the ALJ provided for rejecting portions of Dr.
Smurthwaite’s opinion fulfill either standard of review. The ALJ stated there were
inconsistencies between Dr. Smurthwaite’s opinion and George’s reported daily
activities, Dr. Smurthwaite had not performed a formal psychological evaluation of
George, and Dr. Smurthwaite’s opinion was “speculative” and based on George’s
subjective reports. These reasons are legally valid and supported by substantial
evidence in the record. See Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595,
601 (9th Cir. 1999); Chaudry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012);
Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995).
The ALJ did not err in discounting George’s testimony concerning the extent
of his symptoms and their limiting effects. The ALJ applied the requisite two-step
framework and cited specific, clear, and convincing reasons for discounting
portions of George’s testimony. See Trevizo, 871 F.3d at 678. The ALJ cited the
fact that the objective medical evidence did not support George’s testimony, the
inconsistencies between George’s testimony and the medical opinions in the
record, inconsistencies between George’s alleged symptoms and reported daily
activities, and the effectiveness of George’s prescribed treatments.
George takes issue with other reasons the ALJ enumerated for rejecting his
testimony, such as the ALJ’s comments that “not all treatment options have been
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explored” and that George’s ability to chart his moods and behaviors indicated
some level of persistence, contrary to his testimony. Even if the ALJ erred in
relying on these grounds, any error was harmless, as the other reasons the ALJ
provided for discounting George’s testimony are supported by substantial
evidence. See Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir.
2009).
Contrary to George’s assertions, the ALJ’s Step Five findings are supported
by substantial evidence. The ALJ relied upon the Medical-Vocational Guidelines
(“Grids”), rather than calling upon a vocational expert to testify, to determine
George was able to engage in work that exists in significant numbers in the
national economy. George argues the limitations in his residual functional capacity
(“RFC”) concerning social contact and performing simple tasks significantly
detract from the base of occupations he could perform as represented by the Grids,
and therefore the ALJ erred by not hearing testimony from a vocational expert.
However, the Grids encompass only unskilled work, which by definition involves
only simple tasks and usually does not entail extensive personal contact. See 20
C.F.R. § 404.1568(a); S.S.R. 85-15, 1985 WL 56857, at *3; Terry v. Sullivan, 903
F.2d 1273, 1276-77 (9th Cir. 1990). Consequently, George’s limitations would not
significantly affect the base of unskilled work he could perform.
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George also contends that multiple nonexertional impairments may
substantially reduce the number of jobs available, even if those impairments
considered singly would not. He argues restricting him to positions that involve
little contact with supervisors or coworkers would require him to take positions
that require independence and complex decision-making. However, in George’s
case, the Grids account for his nonexertional limitations. Because the Grids only
include unskilled jobs, these positions are limited to simple duties and do not
necessitate complex decision-making because, by definition, they require “little or
no judgment.” See 20 C.F.R. § 404.1568(a). Thus, the Grids provide substantial
evidentiary support for the ALJ’s Step Five findings.
AFFIRMED.
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