Donna Youngblood v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA M. YOUNGBLOOD, No. 17-35268
Plaintiff-Appellant, No. 3:16-cv-05326-RJB
v. MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Submitted May 24, 2018**
Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges.
Donna M. Youngblood appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and
*
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).
42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th
Cir. 2016), and we affirm.
I. Nurse Virdi’s, Dr. Li’s, Mr. Shetler’s, and Mr. Norman’s Opinions
The ALJ did not err in assessing the opinions of Nurse Virdi, Dr. Li, Mr.
Shetler, and Mr. Norman. Youngblood fails to identify information the ALJ
should have considered, or limitations that the ALJ should have incorporated into
the RFC. As a result, Youngblood has not argued the issue “specifically and
distinctly” as required to invoke the Court’s review. See Indep. Towers of Wash. v.
Washington, 350 F.3d 925, 929-30 (9th Cir. 2003) (citations omitted).
II. Dr. Mayers’ Opinion
The ALJ did not err in evaluating Dr. Mayers’ opinion. Dr. Mayers did not
opine that Youngblood had any specific limitations concerning her ability to
concentrate. An ALJ does not err by not incorporating a physician’s opinion when
the physician had not “assign[ed] any specific limitations on the claimant.” Turner
v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010). Furthermore, Dr.
Mayers concluded that Youngblood showed average concentration abilities. To
the extent this poses a conflict in Dr. Mayers’ opinion, the ALJ reasonably
resolved any conflict. See Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir.
2008).
III. The Consulting Doctors’ Opinions
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Youngblood fails to support her arguments concerning the ALJ’s assessment
of the consulting doctors’ opinions because she fails to explain which clinical
findings conflict with the consulting physicians’ opinions. Youngblood fails to
identify evidence from beyond January 2013 that these doctors did not review that
would affect their opinions. Consequently, she has not argued the issue
“specifically and distinctly” so as to invoke the Court’s review. See Indep. Towers
of Wash., 350 F.3d at 929-30.
IV. Other Medical Evidence
Youngblood maintains the ALJ erred by not properly assessing the “other
medical evidence.” However, she simply lists various pieces of medical evidence
without identifying any functional limitations the ALJ omitted in the RFC, thus
failing to present a specific argument. See id.V. Youngblood’s Testimony
The ALJ provided specific, clear, and convincing reasons for discounting
Youngblood’s testimony regarding the extent of her symptoms and limitations,
including inconsistencies between the objective medical evidence and
Youngblood’s testimony and conflicts between her alleged symptoms and her
reported daily activities. The ALJ also cited instances where treatment and
medication alleviated Youngblood’s symptoms. See Bray v. Comm’r Soc. Sec.
Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Warre v. Comm’r Soc. Sec. Admin.,
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439 F.3d 1001, 1006 (9th Cir. 2006); Molina v. Astrue, 674 F.3d 1104, 1112 (9th
Cir. 2012). While an ALJ may not reject a claimant’s testimony based solely upon
a lack of supporting medical evidence, the ALJ may consider this factor, among
others. See Bray, 554 F.3d at 1227.
Despite Youngblood’s alleged difficulties with some of her daily activities,
“[e]ven where [a claimant’s] activities suggest some difficulty functioning, they
may be grounds for discrediting the claimant’s testimony to the extent that they
contradict claims of totally debilitating impairment.” Molina, 674 F.3d at 1113.
Here, the record supports the ALJ’s interpretation of the evidence. Youngblood is
able to do activities including cooking, cleaning, grocery shopping, taking care of
her pets, crocheting, sewing, and learning new computer programs, despite her
alleged difficulties with pain and concentration.
VI. Lay Witness Testimony
The ALJ did not err by discounting the lay witness testimony from
Youngblood’s mother and stepfather because the lay testimony conflicted with
Youngblood’s daily activities. See Valentine v. Comm’r of Soc. Sec. Admin., 574
F3d 685, 689 (9th Cir. 2009).
VII. Residual Functional Capacity and Step Five Findings
Youngblood has not demonstrated the ALJ erred in determining her residual
functional capacity (“RFC”) or making the Step Five findings. Her arguments are
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premised upon her unsuccessful assertions of error concerning prior steps in the
sequential evaluation. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76
(9th Cir. 2008). The ALJ also did not err by failing to include in the hypothetical
to the vocational expert restrictions that her attorney added when questioning the
vocational expert, because the ALJ is “free to accept or reject th[o]se restrictions . .
. as long as they [we]re supported by substantial evidence.” Magallanes v. Bowen,
881 F.2d 747, 756-57 (9th Cir. 1989) (citation omitted).
VIII. New Evidence Considered by the Appeals Council
The new evidence the Appeals Council considered concerning
Youngblood’s sleep apnea does not render the ALJ’s decision unsupported by
substantial evidence. Although the new evidence includes a diagnosis of severe
complex sleep apnea, the sleep study does not demonstrate Youngblood has any
additional limitations attributable to her sleep apnea, because her doctor identified
an effective treatment for her symptoms. Therefore, the record does not show
Youngblood was “more limited than she was found to be by the ALJ.”
While Youngblood asserts the Appeals Council failed to “acknowledge that
this is an impairment which can reasonably be expected to cause Youngblood’s
sleepiness,” the Council is “not required to make any particular evidentiary
finding[s],” Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir.
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2011) (citation omitted), and its decision is not subject to judicial review, see
Brewes v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1161-62 (9th Cir. 2012).
AFFIRMED.
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