Sandra Bennett v. Carolyn Colvin , 609 F. App'x 522 ( 2015 )

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                              NOT FOR PUBLICATION                          FILED
UNITED STATES COURT OF APPEALS                       JUL 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDRA L. BENNETT,                                No. 13-35821
Plaintiff - Appellant,              D.C. No. 3:12-cv-05382-RAJ
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted July 10, 2015**
Seattle, Washington
Before: NGUYEN and FRIEDLAND, Circuit Judges and ZOUHARY,*** District
Judge.
Sandra Bennett appeals from the district court’s affirmance of the denial of
*
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).
***
The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
Social Security disability benefits. We affirm.
The Administrative Law Judge (“ALJ”) gave “specific and legitimate
reasons that are supported by substantial evidence,” Bayliss v. Barnhart,

427 F.3d 1211

, 1216 (9th Cir. 2005), for discounting the opinion of Bennett’s treating
physician. Substantial evidence supports the ALJ’s finding that the treating
physician’s opinion was inconsistent with the medical record and Bennett’s work
history. Any errors in the ALJ’s additional reasoning were harmless. See Molina
v. Astrue,

674 F.3d 1104

, 1115 (9th Cir. 2012).
The ALJ properly gave specific, clear, and convincing reasons for
disbelieving Bennett’s subjective complaints of pain. See

id. at 1112.

Bennett’s
work history and layoff date were sufficient reasons to support the ALJ’s adverse
credibility determination. See Bray v. Comm’r of Soc. Sec. Admin.,

554 F.3d 1219

, 1227 (9th Cir. 2009); Bruton v. Massanari,

268 F.3d 824

, 828 (9th Cir.
2001). Any error in the ALJ’s additional reasoning was harmless. See

Bray, 554 F.3d at 1227

.
The ALJ properly gave a germane reason for discounting Bennett’s
husband’s testimony. See

Molina, 674 F.3d at 1111

. The inconsistency between
Bennett’s abilities and her husband’s testimony is a germane reason to discount her
2
husband’s testimony. See Carmickle v. Comm’r, Soc. Sec. Admin.,

533 F.3d 1155

,
1164 (9th Cir. 2008).
Substantial evidence supports the ALJ’s finding that Bennett’s impairments
do not meet or equal any listing. And the ALJ was not required to explain why
Bennett’s impairments do not equal Listing 1.04, because Bennett did not present
evidence in an effort to establish medical equivalence. See Burch v. Barnhart,

400 F.3d 676

, 683 (9th Cir. 2005); Lewis v. Apfel,

236 F.3d 503

, 514 (9th Cir.
2001).
Bennett’s argument that the ALJ erred in determining Bennett’s residual
functional capacity rises and falls with other arguments that we have already
rejected. In the same vein, an ALJ’s hypothetical to a vocational expert needs
only to include those limitations that are supported by substantial evidence, see

Bayliss, 427 F.3d at 1217

, so Bennett’s challenges to the ALJ’s hypothetical’s
assumptions fail for the same reasons that we have already expressed. Cf. Stubbs-
Danielson v. Astrue,

539 F.3d 1169

, 1175-76 (9th Cir. 2008).
Bennett has waived her argument that the vocational expert’s testimony
conflicts with Medical-Vocational Rule 201.00(f) by raising this argument for the
first time on appeal. See Greger v. Barnhart,

464 F.3d 968

, 973 (9th Cir. 2006).
3
Similarly, by failing to raise the argument “specifically and distinctly” in her
opening brief, Bennett has waived her contention that the ALJ erred in failing to
find (at step two) that Bennett’s depression and anxiety were severe impairments.
See Mills v. United States,

742 F.3d 400