Edward Campbell v. Andrew Saul ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 23 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD L. CAMPBELL, No. 20-35114
Plaintiff-Appellant, D.C. No. 3:19-cv-05208-MLP
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Michelle L. Peterson, Magistrate Judge, Presiding
Submitted March 19, 2021**
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and LYNN,*** 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 Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
Plaintiff Edward Campbell appeals the district court’s order affirming the
Commissioner of Social Security’s decision denying Campbell’s application for
Social Security disability benefits. We review de novo and set aside a denial of
benefits only if it is unsupported by substantial evidence or the administrative law
judge (ALJ) committed legal error. Ford v. Saul, 950 F.3d 1141, 1153–54 (9th
Cir. 2020). We have jurisdiction pursuant to 28 U.S.C. 1291 and we affirm.
Because the parties are familiar with the facts, we recite only those necessary to
resolve the arguments on appeal.
1. Pursuant to the Social Security Act’s recently amended implementing
regulations, an ALJ “will not provide any analysis in [the] determination or
decision about a decision made by any other governmental agency . . . about
whether [a claimant is] disabled.” 20 C.F.R. § 404.1504. But an ALJ must
“consider all of the supporting evidence underlying the other governmental
agency . . . decision[.]” Id. Campbell did not specifically or distinctly argue in his
opening brief that § 404.1504 is invalid, and therefore we do not consider the
argument to that effect raised in his reply brief. See Indep. Towers of Wash. v.
Washington, 350 F.3d 925, 929 (9th Cir. 2003) (quoting Greenwood v. Fed.
Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)).
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2. Campbell argues the ALJ erred by failing to fully and fairly develop
the record because the ALJ failed to obtain Campbell’s VA disability ratings and
their associated disability evaluations. Assuming the ALJ erred by failing to obtain
and consider the “QTC Medical Exam that was contracted out to Tacoma[,]
Wa[shington] facility that was used to determine [Campbell’s VA] disability,” we
conclude any such error was harmless. Molina v. Astrue, 674 F.3d 1104, 1115 (9th
Cir. 2012) (“[W]e look at the record as a whole to determine whether the error
alters the outcome of the case.”). Campbell testified that he “never went to VA
very often” for treatment, but instead “went to TRICARE at Madigan.” The record
before the ALJ contained nearly one thousand pages of medical records from
Madigan Army Medical Center and other providers that span the period from 2005
to 2018. Given Campbell’s testimony and the medical evidence in the record, any
error in failing to obtain the record from one additional medical examination was
harmless, particularly because VA disability determinations are made on the basis
of the cumulative medical record. See 38 C.F.R. §§ 4.1 (“[A]ccurate and fully
descriptive medical examinations are required”), 4.2 (“It is the responsibility of the
[disability] rating specialist to interpret reports of examination in the light of the
whole recorded history”).
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We also conclude the ALJ did not err by failing to specify the relevant time
period for questions concerning Campbell’s symptoms and daily activities. The
ALJ asked both specific and open-ended questions about Campbell’s abilities and
limitations between the alleged onset date and Campbell’s date last insured. The
ALJ asked Campbell to describe “what a day in the life was . . . [s]tarting from
[2009] on,” and, after some back-and-forth, clarified that “[t]his is immediately
after you retired, right . . . back in ‘09[?]” The ALJ also asked Campbell whether
he sought employment during that time period. Accordingly, the ALJ did not fail
to develop the record regarding Campbell’s capabilities during the relevant time
period.
3. Campbell argues the ALJ failed to properly evaluate the medical
evidence because the medical evidence supports his symptom testimony.
Moreover, Campbell argues that an ALJ who evaluated the evidence as Campbell
desires “could have reached a different disability determination.” This overlooks
that “the key question is not whether there is substantial evidence that could
support a finding of disability, but whether there is substantial evidence to support
the Commissioner’s actual finding that claimant is not disabled.” Jamerson v.
Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). “Where the evidence is susceptible to
more than one rational interpretation, one of which supports the ALJ’s decision,
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the ALJ’s conclusions must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954
(9th Cir. 2002). Campbell has not shown the ALJ’s interpretation of the medical
evidence was not rational.
4. Next, Campbell argues the ALJ erred by discounting his subjective
symptom testimony. An ALJ must complete a two-step analysis to determine
whether a claimant’s symptom testimony is credible. Molina, 674 F.3d at 1112.
At step one, the ALJ determines whether the claimant presented “objective medical
evidence of an underlying impairment [that] could reasonably be expected to
produce the [claimant’s] pain or other symptoms alleged.” Id. (citation and
quotation marks omitted). At step two, if the ALJ finds no evidence of
malingering, the ALJ may reject the claimant’s symptom testimony by providing
“specific, clear and convincing reasons” for doing so. Id. (citation and quotation
marks omitted).
Here, the ALJ determined at step one that Campbell’s medically
determinable impairments could reasonably be expected to cause his symptoms.
At step two, the ALJ discounted Campbell’s testimony regarding the severity of his
symptoms because his testimony was inconsistent with the objective medical
evidence, his symptoms were well-controlled by conservative treatment, and no
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treating, examining, or other medical source opined he was disabled during the
relevant time period.
We conclude the ALJ provided sufficiently specific, clear and convincing
reasons for discounting Campbell’s testimony. See Thomas, 278 F.3d at 959 (“If
the ALJ’s credibility finding is supported by substantial evidence in the record, we
may not engage in second-guessing.”). Objective medical evidence showed that in
2010, Campbell’s pain was “mild” and did “not interfere with activity.” Medical
records from 2011 and 2012 showed similarly mild symptoms, with Campbell
feeling “Very Good,” experiencing “[n]o back pain,” shoulder pain rated one out of
ten, no shoulder numbness or tingling, and noting he could stand for four to six
hours. In 2012 and 2013, medical records showed that pain medications “work[ed]
quite well for [Campbell] without side effects,” and his right shoulder pain was
“[g]reatly resolved” following treatment of rest and medication. Though the lack
of a medical opinion supporting Campbell’s claimed disability might not suffice on
its own to discount his testimony, we have upheld credibility determinations based
in part upon an ALJ’s finding that the claimant’s testimony was “unsupported
by . . . any persuasive reports of his doctors.” Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1196 (9th Cir. 2004).
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5. Campbell also argues the ALJ erred by discounting the testimony of
two lay witnesses. Lay witness testimony regarding a claimant’s symptoms is
“competent evidence that the ALJ must take into account.” Molina, 674 F.3d at
1114. Competent lay witness testimony “cannot be disregarded without
comment,” but an ALJ may discount the testimony by providing “reasons that are
germane to each witness.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)
(internal quotation marks and emphasis omitted). Here, the ALJ rejected the lay
witness testimony in part because it was “not consistent with the preponderance of
the objective medical evidence[.]” This is a germane reason for rejecting the
testimony.
6. Campbell’s argument that the ALJ’s Residual Functional Capacity
(RFC) determination was erroneous is predicated on his arguments that the ALJ
erred by discounting his testimony and the lay witness testimony. Because we
conclude the ALJ properly discounted that testimony, we conclude Campbell has
not shown that the ALJ’s RFC determination was not supported by substantial
evidence.
7. Finally, Campbell argues the ALJ failed to comply with Social
Security Ruling 82-62, and therefore erred by concluding Campbell could perform
his past relevant work as a personnel clerk. We disagree. The ALJ inquired into
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Campbell’s past relevant work with both Campbell and the vocational expert. The
vocational expert testified that Campbell’s past relevant work was equivalent to
personnel clerk listed in section 209.362–026 of the Dictionary of Occupational
Titles. The ALJ posed a hypothetical to the vocational expert that matched the
ALJ’s RFC finding, and the vocational expert testified that an individual with that
RFC could perform the work of a personnel clerk as it is generally performed in
the national economy. The ALJ’s conclusion that Campbell could perform his past
relevant work as a personnel clerk as it is generally performed in the national
economy was supported by citation to the vocational expert’s testimony and the
Dictionary of Occupational Titles.
AFFIRMED.
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