Kathleen Bailey v. Carolyn Colvin , 669 F. App'x 839 ( 2016 )

FILED
NOT FOR PUBLICATION
OCT 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN T. BAILEY, No. 14-35465
Plaintiff-Appellant, D.C. No. 3:13-cv-00538-BR
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted October 6, 2016**
Portland, Oregon
Before: THOMAS, Chief Judge, and CLIFTON and NGUYEN, Circuit Judges.
Kathleen Bailey seeks review of the denial of her application for disability
insurance benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
*
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 district court correctly entered judgment affirming an Administrative
Law Judge’s (“ALJ”) decision denying Bailey’s application for disability
payments. The ALJ properly assessed the medical evidence and incorporated the
limitations supported by the evidence into the residual functional capacity by
restricting Bailey to light work with only occasional reaching of her right arm.
The ALJ did not err in finding Bailey “not fully credible.” The medical
evidence suggests that many of Bailey’s impairments had improved (e.g.,
migraines) or responded favorably to treatment (e.g., her carpal tunnel syndrome
responded favorably to a splint; her hypoglycemia was controlled with regular
eating; and a cervical collar relieved pain). Even excluding scrubbing floors and
camping from the list of Bailey’s daily activities, her activities were inconsistent
with the severity of symptoms she alleged. The contradictions between Bailey’s
testimony and the medical evidence, Bailey’s inconsistent statements regarding
painkillers, and Bailey’s daily activities were specific, clear, and convincing
reasons to discount her credibility. See Carmickle v. Comm’r of Soc. Sec. Admin.,
533 F.3d 1155, 1161–63 (9th Cir. 2008); Burrell v. Colvin, 775 F.3d 1133, 1138
(9th Cir. 2014).
The ALJ properly discounted the testimony of Robert Wolff, Bailey’s friend
and former roommate. The ALJ gave Wolff’s testimony “some weight” because it
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was only somewhat consistent with the evidence of record; this is a germane
reason to discredit a lay witness’s testimony. See Bayliss v. Barnhart, 427 F.3d
1211, 1218 (9th Cir. 2005) (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.
2001)).
The ALJ did not err by failing to supplement the record. There was no
ambiguity or inadequacy in the record, and the ALJ was not required to solicit
additional testimony after giving Wolff’s testimony “some weight.” See McLeod
v. Astrue, 640 F.3d 881, 885 (9th Cir. 2010) (stating the ALJ only has a duty to
conduct an appropriate inquiry where the record establishes ambiguity or
inadequacy).
The ALJ’s hypothetical to the vocational expert was proper because it
included the limitations supported by substantial evidence. See Magallanes v.
Bowen, 881 F.2d 747, 756–57 (9th Cir. 1989) (stating the ALJ may limit a
hypothetical to only those limitations supported by substantial evidence in the
record).
The ALJ was mistaken on several factual matters, but the errors were
harmless because he did not base any conclusions on them. Carmickle, 533 F.3d at
1162 (explaining that “the relevant inquiry . . . is whether the ALJ’s decision
remains legally valid, despite such error”). Further, Bailey was unable to
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demonstrate prejudice from any errors. See Ludwig v. Astrue, 681 F.3d 1047, 1054
(9th Cir. 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 407–09) (noting the
burden was on the party claiming error to demonstrate that the error affected her
“substantial rights”).
The ALJ’s determination that Bailey can perform light work with limited
overhead reaching with the right upper extremity is supported by substantial
evidence. Any legal errors were harmless. The district court properly entered
judgment in favor of the Commissioner.
AFFIRMED.
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