Karry Deck v. Carolyn Colvin

FILED
NOT FOR PUBLICATION DEC 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARRY D. DECK, No. 13-35419
Plaintiff - Appellant, D.C. No. 3:12-cv-05024-RBL
v.
MEMORANDUM*
CAROLYN W. COLVIN,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted December 10, 2014
Seattle, Washington
Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.
Karry Deck appeals the district court’s judgment affirming the ALJ’s denial
of her application for Social Security disability benefits. The ALJ followed the
five-step process and found her not disabled at step five after finding a significant
number of jobs existed in the national economy that Deck could still perform,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
based on a vocational expert’s testimony. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.1
First, substantial evidence supports the ALJ’s finding that Deck’s Hepatitis
C does not result in any significant vocational limitations, and thus is non-severe,
where the ALJ relied upon the only medical evaluator to discuss the effects of the
impairment on her ability to perform basic work-related activities—Christine
Allison, a physician’s assistant. Cf. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.
1996). Dr. Yu, whose opinion Deck alleges the ALJ erred in omitting, merely
diagnosed Deck with Hepatitis C but did not discuss the effect her symptoms
would have on her ability to work.
Moreover, Deck could have—but did not—obtain a supplemental report
from Dr. Yu opining on what limitations, if any, her Hepatitis C might have
imposed on her ability to work. More than a year elapsed between Dr. Yu’s
original diagnosis and the hearing before the ALJ. Five months elapsed between
Allison’s examination and the ALJ hearing. Deck had time to rebut Allison’s
findings that Deck’s Hepatitis C did not significantly interfere with her ability to
perform basic work-related activities—but she did not do so. Therefore, the ALJ
1
We have ordered that Volume One of the Plaintiff-Appellant’s Excerpts of
Record, filed under seal, be unsealed for purposes of addressing facts discussed in
the ALJ’s October 1, 2014, decision.
2
did not err by relying on Allison’s report, based on Dr. Yu’s diagnosis, and
omitting explicit reference to Dr. Yu’s report.
Second, the ALJ did not err in crediting the opinion of a non-examining,
non-treating doctor over three examining physicians where the ALJ gave specific
and legitimate reasons for doing so. See Lester v. Chater, 81 F.3d 821, 830-31
(9th Cir. 1996). Substantial evidence in the record supports the ALJ’s decision to
give less weight to the three examining physicians’ reports where all of them noted
Deck’s “symptoms would improve if she was actively engaged in treatment and
not abusing substances.” Cf. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)
(holding an ALJ can meet the clear and convincing standard for rejecting medical
opinions “by setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation thereof, and making
findings”). Therefore, the ALJ did not err by giving more weight to the non-
examining medical opinion of Dr. Eisenhauer because “it is consistent with the
objective medical evidence.”
Third, the ALJ did not err by failing to discuss Deck’s Global Assessment of
Functioning (“GAF”) score because the score is used for treatment purposes and
not for rating a person’s ability to work. See Garrison v. Colvin, 759 F.3d 995,
1002 n.4 (9th Cir. 2014).
3
Fourth, substantial evidence supports the ALJ discounting Deck’s credibility
due to inconsistency with her reported daily activities, inconsistency with the
objective medical evidence, sporadic work history, failure to follow up on medical
referrals, and her continued drug use. These provide the specific, clear, and
convincing reasons an ALJ must give for his disbelief of a claimant’s pain
testimony. See Orn v. Astrue, 495 F.3d 625, 635-36 (9th Cir. 2007); Thomas v.
Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).
Fifth, the district court properly held that, although the ALJ did err in
discrediting Deck’s friend’s third-party lay witness report simply because she was
“likely influenced by her desire to assist” Deck, Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 694 (9th Cir. 2009), any error was harmless because the
objective medical evidence did not support the lay witness opinion, which
“constitutes a ‘germane’ reason why her testimony was not completely
persuasive,” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citation omitted).
Finally, there was no error in the ALJ’s residual functional capacity finding
and the proper hypothetical posed to the vocational expert. Since we found no
error above, we find no error here.
AFFIRMED.
4