Heaven Howland v. Andrew Saul ( 2020 )

FILED
NOT FOR PUBLICATION
FEB 11 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEAVEN L. HOWLAND, No. 18-36096
Plaintiff-Appellant, D.C. No. 3:17-cv-05957-JLR
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted February 5, 2020**
Seattle, Washington
Before: M. SMITH and N.R. SMITH, Circuit Judges, and TUNHEIM,*** District
Judge.
*
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 John R. Tunheim, United States Chief District Judge
for the District of Minnesota, sitting by designation.
Heaven L. Howland appeals the district court’s decision reversing and
remanding for further administrative proceedings the Commissioner of Social
Security’s denial of her applications for disability benefits. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm the judgment of the district court.
1. Aside from the unchallenged finding that the Administrative Law Judge
(“ALJ”) harmfully erred in considering Dr. Hander’s opinion, the ALJ did not
further err in weighing the medical evidence. With respect to Dr. Gaffield, the ALJ
reasonably interpreted Dr. Gaffield’s opinion to mean that Howland could stand or
walk for six hours out of an eight-hour workday with customary breaks and rest
periods. Although Howland proposes an alternative reading, that does not establish
that the ALJ’s interpretation of Dr. Gaffield’s opinion was unreasonable. See
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is
susceptible to more than one rational interpretation, it is the ALJ’s conclusion that
must be upheld.”). Similarly, Howland does not explain the significance of the
ALJ’s failure to acknowledge that Dr. Gaffield did not review the CT and MRI
scans that showed Howland’s disc herniation. Because Howland bears the burden
of demonstrating harmful error, her conclusory argument unsupported by authority
or explanation fails. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)
(stating that the “burden of showing that an error is harmful normally falls upon
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the party attacking the agency’s determination” (quoting Shinseki v. Sanders, 556
U.S. 396, 409 (2009))).
Next, the ALJ did not err in affording Dr. Rabie’s opinion “great weight.”
Although Dr. Rabie’s opinion predated Howland’s alleged disability onset date by
a few months, the ALJ explained that the opinion was particularly relevant,
because it demonstrated that Howland’s condition following her vehicle accident
had “largely improved” within a year of the accident. The ALJ also afforded Dr.
Rabie’s opinion “great weight,” because it was consistent with the objective
medical evidence, Howland’s performance during her physical examination, and
Howland’s own statements regarding her abilities. See 20 C.F.R.
§§ 404.1527(c)(3)–(4), 416.927(c)(3)–(4). Ultimately, the ALJ’s decision to afford
Dr. Rabie’s opinion “great weight” is supported by substantial evidence and is free
of legal error. See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
The ALJ also did not err in affording Dr. Kwock’s opinion “great weight.”
Howland argues the ALJ erred because Dr. Kwock’s opinion failed to “consider or
account” for Howland’s symptom testimony. However, as explained below, the
ALJ did not harmfully err in discounting Howland’s subjective symptom
testimony. Thus, Dr. Kwock’s failure to “consider or account” for this testimony is
of diminished import. Additionally, the ALJ afforded Dr. Kwock’s opinion “great
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weight,” because Dr. Kwock explained his opinion in detail, see Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (noting that the weight afforded a non-
examining physician’s testimony depends on the extent to which the non-
examining physician provides supporting explanations for the opinion), and Dr.
Kwock’s opinion was consistent with the limitations identified by Dr. Gaffield and
Dr. Rabie, see 20 C.F.R. §§ 404.1527(c)(4); 416.927(c)(4). These findings are
supported by substantial evidence.
Finally, the ALJ afforded “great weight” to Dr. Hander’s opinion that
Howland could perform “work at the light exertional level[,] except she could
stand/walk for four hours and sit for more than six hours in a eight-hour day.”
Howland advances two arguments to show the ALJ erred in evaluating Dr.
Hander’s opinion. We do not address Howland’s first argument, because it simply
reiterates the grounds upon which the district court reversed.1 As to the second
argument, Howland argues that the ALJ erred by failing to acknowledge that,
contrary to Dr. Hander’s opinion that Howland “[was] improving,” she was found
1
The district court reversed and remanded for further administrative
proceedings, because the ALJ harmfully erred when he failed to explain why he
did not include Dr. Hander’s four-hour standing or walking limitation in either his
residual functional capacity (“RFC”) assessment or the hypotheticals to the
vocational expert. Appellee did not file a cross-appeal challenging this aspect of
the district court’s order.
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disabled two months later. However, as the district court explained, the ALJ that
issued the first decision in this matter, found that Howland’s RFC “significantly
declined starting on June 1, 2012, as she experienced a progressive worsening in
physical health impacting her overall ability to engage in even basic activities of
daily living.” Thus, Dr. Hander’s opinion was not invalidated simply because
Howland’s condition significantly deteriorated two months after the opinion was
issued.2
2. The ALJ did not harmfully err in discounting Howland’s testimony, because
the ALJ offered several “specific, clear and convincing reasons for doing so.”
Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison, 759
F.3d at 1015). Indeed, substantial evidence supports the ALJ’s findings that
Howland’s testimony regarding the severity of her symptoms was inconsistent with
the objective medical evidence and the medical record as a whole. See Carmickle,
533 F.3d at 1161 (“Contradiction with the medical record is a sufficient basis for
rejecting the claimant’s subjective testimony.”). Additionally, the ALJ also
2
Howland devotes a substantial portion of her opening brief to summarizing
certain medical findings and then concludes that the findings support her testimony
and confirm she was experiencing a severe mood disorder. Because Howland
failed to specifically and distinctly argue these matters, we do not address them.
See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir.
2008).
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highlighted “other inconsistencies” in Howland’s file that further undermined the
weight that could be given to Howland’s testimony.
The ALJ did err in relying on Howland’s daily activities to discount her
subjective symptom testimony when the ALJ failed to explain how Howland’s
daily activities were inconsistent with her testimony. See Orn v. Astrue, 495 F.3d
625, 639 (9th Cir. 2007). But, because the ALJ offered other specific, clear and
convincing reasons for discounting Howland’s testimony, the ALJ’s error is
“inconsequential to the ultimate nondisability determination.” See Molina, 674
F.3d at 1115 (quoting Carmickle, 533 F.3d at 1162).
3. The ALJ gave germane reasons supported by substantial evidence for
discounting the lay testimony of Howland’s friend, Mr. James K. Wood, Jr. See
Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1007 (9th Cir. 2015) (noting
that, “to discount competent lay witness testimony, the ALJ must give reasons that
are germane to each witness”). The ALJ recognized that Mr. Wood’s statements
largely expressed the same limitations described in Howland’s own testimony,
which the ALJ properly discounted. Thus, because the ALJ offered specific, “clear
and convincing reasons for rejecting [Howland’s] own subjective complaints, . . . it
follows that the ALJ also gave germane reasons for rejecting [Mr. Wood’s]
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testimony.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.
2009).
4. The ALJ’s RFC assessment and step-five findings are not supported by
substantial evidence, because the district court correctly determined (and Appellee
does not challenge the finding) that the ALJ harmfully erred by failing to include
Dr. Hander’s four-hour standing/walking limitation in the ALJ’s RFC assessment.
See Valentine, 574 F.3d at 690. However, aside from the unchallenged harmful
error identified by the district court, Howland’s further arguments related to the
ALJ’s RFC and step-five findings are simply derivative of Howland’s earlier
arguments addressed and rejected above. Thus, Howland’s further arguments fail.
See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008).
5. The district court did not abuse its discretion by remanding the case for
further proceedings rather than remanding for an automatic award of disability
benefits under the credit-as-true test. See Garrison, 759 F.3d at 1020. “An
automatic award of benefits in a disability benefits case is a rare and prophylactic
exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880
F.3d 1041, 1044 (9th Cir. 2017). The district court determined that the appropriate
remedy is to remand the case for further proceedings because, inter alia, “[t]here
are conflicts in the medical evidence that the court is not in a position to decide.”
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The judgment of the district court reversing and remanding for further
administrative proceedings is AFFIRMED, and the matter is REMANDED to the
district court with instructions to remand for further administrative proceedings
consistent with its previous order.
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