David Van Gilder v. Nancy Berryhill ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID VAN GILDER, No. 16-55338
Plaintiff-Appellant, D.C. No. 2:14-cv-05909-SP
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Sheri Pym, Magistrate Judge, Presiding
Submitted November 16, 2017**
Pasadena, California
Before: NGUYEN and HURWITZ, Circuit Judges, and SEEBORG,*** District
Judge.
David Van Gilder appeals the district court’s affirmance of the
*
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).
***
The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
Commissioner’s denial of his applications for Social Security Disability Insurance
Benefits and Supplemental Security Income. We affirm in part and remand in part.
1. The Administrative Law Judge (ALJ) erred at step three by failing to cite
any evidence to substantiate her finding that Van Gilder’s impairment did not meet
or equal one listed in Appendix 1. 20 C.F.R. pt. 404, subpt. P, app. 1; see Lewis v.
Apfel, 236 F.3d 503, 512 (9th Cir. 2001). But, this error was harmless because the
ALJ found in her step-four analysis that Van Gilder could ambulate at least 100 feet
without assistance, and each listed impairment at issue requires that the applicant
have an “inability to ambulate effectively.” 20 C.F.R. pt. 404, subpt. P, app. 1.
2. An ALJ must offer “specific, clear and convincing reasons” for rejecting a
claimant’s pain testimony. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
The ALJ did so, finding that Van Gilder’s daily routine and sporadic treatment
history undermined his testimony. Gaps in medical treatment “may be the basis for
an adverse credibility finding” unless a claimant fails to seek treatment because of
inadequate funds, Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007), and the ALJ
noted that Van Gilder failed to seek treatment despite the availability of “reduced
pay or free treatment at any clinic.”
Van Gilder argues that the ALJ erroneously relied on his unemployment
benefits and an accompanying declaration that he was able and willing to work.
Although a failed work attempt may not alone provide a clear and convincing reason
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for rejecting pain testimony, see Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th
Cir. 2007), such evidence can be used, as here, to assess a claimant’s credibility, see
Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
3. The district court correctly found the ALJ’s failure to specifically address
the testimony of Van Gilder’s mother to be harmless error. The testimony was
consistent with the ALJ’s conclusions. See Molina v. Astrue, 674 F.3d 1104, 1115–
17 (9th Cir. 2012).
4. The ALJ erred by failing to make specific findings connecting Van Gilder’s
residual functional capacity (RFC) to his past work. After determining a claimant’s
RFC, the ALJ must determine whether a claimant can perform the demands of his
previous employment or other jobs available in the national economy. 40 C.F.R.
§ 404.1545(a)(5); see Pinto v. Massanari, 249 F.3d 840, 844–45 (9th Cir. 2001).
The ALJ made no such specific findings. We therefore remand for the ALJ to make
specific findings regarding whether Van Gilder’s RFC allows him to perform his
previous employment or other jobs available in the national economy. 40 C.F.R.
§ 404.1545(a)(5). The ALJ should also make specific findings on whether Van
Gilder’s potential mental impairments prevent him from performing past relevant
work.
5. Van Gilder also argues that his subsequent successful disability application
contains new, material evidence that warrants remand. Remand is required when
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the decisions granting and denying benefits are inconsistent, see Luna v. Astrue, 623
F.3d 1032, 1035 (9th Cir. 2010), and evidence submitted after the ALJ’s initial
decision can be considered if it “relates to the period on or before the ALJ’s
decision.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir.
2012). But, Van Gilder’s subsequent successful disability application did not
present new, material evidence relating to the period before the ALJ’s decision. The
subsequent disability finding notes that it did not adopt the previous decision because
Van Gilder’s condition subsequently worsened, and the subsequent application
presented evidence related to periods after the first determination.
AFFIRMED in part; REMANDED in part. Each party shall bear its own
costs.
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