Eddy New v. Nancy Berryhill ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDDY LETROY NEW, No. 14-35973
Plaintiff - Appellant, D.C. No. 3:13-cv-00094-SLG
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted March 27, 2017**
Before: GOODWIN, LEAVY and SILVERMAN, Circuit Judges.
Eddy Letroy New appeals pro se the district court’s judgment affirming the
Commissioner of Social Security’s denial of New’s application for supplemental
security income under Title XVI of the Social Security Act. We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We review the district court’s order de novo and may set
aside the denial of benefits only if it is not supported by substantial evidence or is
based on legal error. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). We
affirm.
We construe New’s request that this court consider new evidence not
included in the administrative record as a request for remand under 42 U.S.C.
§ 405(g). See Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990). We decline to
remand for the agency to consider the new evidence because New has made no
showing that the photographs he submitted for the first time to the district court,
records from his prior supplemental security income claim, or December 2012
records from Alaska Heart Institute are material or that good cause existed for
failing to incorporating them into the administrative record. See id. (requirements
for remand under § 405(g)).
The ALJ did not err in failing to include fibromyalgia among New’s
medically determinable impairments at step two in the sequential evaluation
process because the record before the ALJ was devoid of medical evidence of
treatment for, or a diagnosis of, fibromyalgia. See Smolen v. Chater, 80 F.3d 1273,
1282 (9th Cir. 1996) (a claimant must “produce objective medical evidence of an
impairment or impairments”).
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The ALJ identified several specific, clear and convincing reasons that are
supported by substantial evidence for discounting New’s credibility regarding the
debilitating effects of his symptoms: (1) New’s sporadic employment history prior
to the alleged disability onset date undermined his allegations of an inability to
work, (2) New’s statements in support of his application for unemployment
benefits were inconsistent with his allegations of disability, (3) a doctor’s notation
that New was heavily muscled was inconsistent with New’s testimony that he was
inactive, (4) the severity of symptoms that New reported was inconsistent with his
treatment seeking behavior, and (5) New’s symptoms were reasonably well
controlled with appropriate treatment. See Molina, 674 F.3d at 1113 (upholding
adverse credibility determination where the claimant’s symptom testimony was
inconsistent with record medical evidence); Carmickle v. Comm’r, Soc. Sec.
Admin., 533 F.3d 1155, 1161–62 (9th Cir. 2008) (holding oneself out as available
for full-time work in order to obtain unemployment benefits is inconsistent with
allegations of disability); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (a
poor work history reflecting “little propensity to work in her lifetime” undermined
claimant’s allegations); Smolen, 80 F.3d at 1284 (listing “observations of treating
and examining physicians” among the factors relevant to credibility
determinations). Any error in basing the adverse credibility determination in part
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on New’s medical non-compliance was harmless because the ALJ supported that
determination with other specific, clear and convincing reasons. See Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004).
To the extent that New seeks to challenge the residual functional capacity
(“RFC”) assessment for light work with environmental limitations on concentrated
exposure to extreme cold and heat, excessive vibration, fumes, odors, dust and
gasses, all of the limitations included in the RFC were supported by, and consistent
with, substantial record evidence. New has not identified any record evidence that
would support the imposition of different or additional environmental limitations.
The ALJ was not obliged to consider Americans with Disabilities Act
(“ADA”) accommodations in making the disability determination. See Cleveland
v. Policy Management Sys. Corp., 526 U.S. 795, 800-04 (1999) (contrasting the
purpose and requirements of the Social Security Act and the ADA).
AFFIRMED.
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