Tatia Calhoun v. Nancy Berryhill

FILED
NOT FOR PUBLICATION
MAY 17 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TATIA CALHOUN, No. 15-56433
Plaintiff-Appellant, Case No. CV 13-02861-DTB
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
David T. Bristow, Magistrate Judge, Presiding
Submitted May 15, 2018**
Before: FARRIS, CANBY, and LEAVY, Circuit Judges.
Tatia Calhoun appeals pro se the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for supplemental
security income under Titles II and XVI of the Social Security Act. We have
*
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).
jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo,
Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.
1. Waiver
Calhoun waived several issues by failing to raise them in the district court,
where she was represented by counsel. See Warre v. Comm’r of Soc. Sec. Admin.,
439 F.3d 1001, 1007 (9th Cir. 2006). Calhoun waived her contention that the ALJ
did not consider all of the relevant evidence because she did not proffer this
argument in the district court. We note, however, that Calhoun does not identify
which evidence the ALJ failed to consider, thus failing to argue the issue
“specifically and distinctly,” as required to invoke this court’s review. See
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008).
Although Calhoun provides a list of references to documents she contends support
her arguments, she fails to explain sufficiently how this evidence demonstrates
agency error.
Calhoun also waived her assertion that the ALJ should have found her
disabled under Listing 1.05(C) of the Listing of Impairments. Calhoun failed to
present this argument to the district court, see Warre, 439 F.3d at 1007, and, in any
event, did not provide an adequate explanation as to how she meets the criteria for
this listing. See Carmickle, 533 F.3d at 1161 n.2.
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2. Additional documents submitted on appeal
Regarding the “Excerpts of Record” Calhoun submitted with her opening
brief, we do not consider documents that were not included in the district court
record. In the Social Security context, “[c]ourts are authorized to review only the
Secretary’s final decision, the evidence in the administrative transcript on which
the decision was based, and the pleadings.” Russell v. Bowen, 865 F.2d 81, 84 (9th
Cir. 1988). Moreover, several documents included in Calhoun’s “Excerpts of
Record” postdate the district court’s decision, indicating they cannot be documents
filed with the district court. Several other documents fall within the appropriate
date range but were not included in the district court record. Therefore, we do not
consider these documents.
3. Medical evidence
The ALJ did not err by discounting treating orthopedic specialist Dr. Sohn’s
opinion. In his supplemental report, Dr. Sohn expressed doubts concerning his
earlier opinions about the extent of Calhoun’s symptoms and limitations. Dr. Sohn
concluded that the sub rosa video footage of Calhoun in connection with her
workers’ compensation claim provided “very substantial medical evidence”
contradicting Calhoun’s assertions. The ALJ properly relied upon Dr. Sohn’s most
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recent opinion from the supplemental report when discounting Dr. Sohn’s earlier
opinions.
Although Calhoun characterizes the sub rosa tapes as depicting a time when
she was “heavily medicated” and “enjoyed a day of bowling with her friends,” this
description is not supported by the record, which indicates the tapes span several
days and show Calhoun taking part in other activities in addition to bowling that
contradict her alleged debilitating symptoms. Accordingly, the ALJ properly
resolved the conflicts between Dr. Sohn’s earlier opinions and the opinion in his
supplemental report. See Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir.
2008).
The ALJ also did not err by discounting treating orthopedic specialist Dr.
Bakshian’s opinion that Calhoun was “temporarily totally disabled.” Dr.
Bakshian’s opinion was not entitled to significant weight, even though Dr.
Bakshian was a treating physician, because the agency “will not give any
significance to the source of an opinion on issues reserved to the Commissioner,”
20 C.F.R. § 404.1527(d)(3) (2014), including whether a claimant is disabled.
McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). The ALJ also permissibly
relied upon the fact that Dr. Bakshian’s opinion “was not given in a context that
demonstrates understanding of Social Security disability programs and their
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evidentiary requirements,” in accordance with the agency’s regulations. See 20
C.F.R. § 404. 1527(c)(6); id. at § 416.927(c)(6). Calhoun has not carried her
burden of showing how any alleged error the ALJ committed by discounting Dr.
Bakshian’s opinion affected the outcome of the disability decision. See Garrison
v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014).
The ALJ did not err by assigning the “most weight” to the opinion of
Department of Social Service’s Disability Determination Service examining
physician Dr. Siciarz. Calhoun does not furnish any evidence for her assertion that
there is a “quota system” incentivizing examining physicians to provide opinions
that claimants are not disabled. To the extent Calhoun argues the ALJ erred by
relying on the opinion of an examining physician, as opposed to that of Calhoun’s
treating physicians, the ALJ correctly pointed out that Dr. Siciarz’s opinion was
“the only medical opinion offered within the period under consideration that gives
specific limitations.” An examining physician’s opinion “constitutes substantial
evidence, because it rests on [the doctor’s] own independent examination of [the
claimant].” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
Therefore, the ALJ’s assessment of the medical evidence was formulated with
specific and legitimate reasons supported by substantial evidence. See Trevizo v.
Berryhill, 871 F.3d 664, 675 (9th Cir. 2017).
AFFIRMED.
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