Michael Shuff v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL J. SHUFF, No. 17-35823
Plaintiff-Appellant, D.C. No. 3:16-cv-05579-JCC
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted December 4, 2018
Seattle, Washington
Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.
Michael Shuff appeals from the district court’s judgment affirming the
decision of the administrative law judge (ALJ) denying Shuff’s application for
Social Security disability benefits. We affirm.
1. The ALJ’s determination is supported by substantial evidence. Dr. Carl,
Shuff’s treating physician, as well as Dr. Bays, Dr. Boudreaux, Dr. Tallerico, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 3
Mr. Selisch, provided medical opinions between 2001 and 2006 that Shuff was
able to work and therefore not disabled. The ALJ provided clear and convincing
reasons to discount Dr. Van Linder and Dr. Wendt’s September 2003 opinion and
Dr. Brion’s May 2005 opinion suggesting otherwise. See Lester v. Chater, 81 F.3d
821, 830–31 (9th Cir. 1995). Both opinions indicated that Shuff’s condition was
subject to change, and neither opinion contradicts the many other opinions finding
that Shuff previously had or later regained the ability to work.
There is not as much medical evidence in the record regarding Shuff’s
condition from 2007 until Shuff’s date last insured in September 2008. But the
ALJ provided clear and convincing reasons to discount three opinions prepared
after 2008: an August 2009 opinion by Mr. Brown, Shuff’s treating nurse
practitioner; a June 2009 opinion by Dr. Greenwald; and a January 2011 opinion
by Dr. Swanson. Medical opinions postdating the period for disability “should not
be disregarded solely on that basis.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th
Cir. 1988). But here, none of the opinions provide any discussion of Shuff’s
condition, which at least from 2001 to 2006 appeared to fluctuate considerably,
during the relevant time period.
2. Shuff did not raise before the district court and therefore forfeited the
argument that the ALJ should have included his depression, as diagnosed by Dr.
Denny and opined by Mr. Brown, in determining his residual functional capacity.
Page 3 of 3
See Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014). In any case, the ALJ
did consider his depression, which the medical opinions indicate did not interfere
with his ability to work.
3. The ALJ provided sufficiently clear and convincing reasons to discount
Shuff’s testimony. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). The
ALJ also provided germane reasons to discount the lay evidence from Shuff’s wife.
See id. at 1288.
AFFIRMED.