Sarina Striped-Wolf v. Carolyn Colvin ( 2015 )

FILED
NOT FOR PUBLICATION JAN 12 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARINA M. STRIPED-WOLF, No. 14-35092
Plaintiff - Appellant, D.C. No. 2:12-cv-00572-JTR
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
John Tyler Rodgers, Magistrate Judge, Presiding
Submitted November 3, 2014**
Before: LEAVY, GRABER, and W. FLETCHER, Circuit Judges.
Sarina Striped-Wolf appeals the district court’s summary judgment
affirming the Commissioner of Social Security’s decision denying her application
for supplemental security income under Title XVI of the Social Security Act.
*
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).
Striped-Wolf contends that the administrative law judge (“ALJ”) erred in rejecting
portions of the opinions of Robert Quackenbush, Ph.D., and Joyce Everhart, Ph.D.,
and giving little weight to the opinion of Frank Rosekrans, Ph.D., in determining
Striped-Wolf’s residual functional capacity (“RFC”). She also contends that the
RFC determination rests on an incomplete hypothetical question to the vocational
expert that did not include all of Striped-Wolf’s limitations. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
We review the district court’s order de novo. Andrews v. Shalala, 53 F.3d
1035, 1039 n.1 (9th Cir. 1995). We may set aside the denial of benefits only if it is
not supported by substantial evidence or contains legal error. 42 U.S.C. § 405(g);
Andrews, 53 F.3d at 1039.
Striped-Wolf contends that the ALJ did not properly evaluate the opinions of
Drs. Quackenbush, Everhart, and Rosekrans in determining her RFC.1 This
contention is unpersuasive. The ALJ properly evaluated these opinions after
setting out a detailed and thorough summary of the facts and conflicting evidence,
stating her interpretation, and making findings, Embrey v. Bowen, 849 F.2d 418,
1
We decline to address Striped-Wolf’s contention that the psychological
examination by John Arnold, Ph.D. supports the other medical evidence of mental
limitations because this contention was raised for the first time on appeal in the
reply brief. See Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (per
curiam) (explaining that contentions not raised in the district court are waived).
2
421 (9th Cir. 1988), and after evaluating these opinions in light of Striped-Wolf’s
noted tendency to exaggerate, see Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th
Cir. 2008) (permitting ALJ to reject opinion based on properly discounted self-
reports).
Striped-Wolf contends that the RFC determination relies on an incomplete
hypothetical to the vocational expert that did not include all of the limitations set
forth in the testimony of non-examining clinical psychologist Kent B. Layton,
Psy.D. The ALJ was not required to consider a hypothetical that was not supported
by the record. Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). Here, Dr.
Layton never testified that Striped-Wolf was unable to accept instructions or
criticism from a supervisor and still attend to the task. Accordingly, the ALJ was
not required to incorporate such a limitation into the RFC determination.
AFFIRMED.
3