Rilicia Leverenz v. Nancy Berryhill

FILED
NOT FOR PUBLICATION
MAY 25 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RILICIA I. LEVERENZ, No. 14-17402
Plaintiff-Appellant, D.C. No. 2:13-cv-01468-NVW
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted January 11, 2017**
San Francisco, California
Before: CLIFTON and M. SMITH, Circuit Judges, and ERICKSON,*** 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 Ralph R. Erickson, United States District Judge for the
District of North Dakota, sitting by designation.
Rilicia I. Leverenz (“Leverenz”) appeals from the judgment of the district
court upholding the final decision of the Commissioner of Social Security
(“Commissioner”), following an evidentiary hearing by an Administrative Law
Judge (“ALJ”), that she was not disabled and thus not entitled to disability
insurance benefits. The ALJ found that while Leverenz had severe impairments,
including sacroiliac joint dysfunction, lumbar radiculopathy, lumbar neuropathic
pain, peripheral neuropathy, obesity, recurrent major depression, and migraine
headaches, she retained residual functional capacity (“RFC”) to perform light work
with some function-by-function limitations and she was capable of performing her
past relevant work as a housekeeper. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
We review the district court’s judgment de novo. Sandgathe v. Chater, 108
F.3d 978, 980 (9th Cir. 1997) (citing Ramirez v. Shalala, 8 F.3d 1449, 1451 (9th
Cir. 1993)). The Commissioner’s decision is properly affirmed “if it is supported
by substantial evidence and based on the application of correct legal standards.”
Id. (citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “Substantial
evidence is ‘more than a mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Id. (quoting Andrews, 53 F.3d at 1039). “[W]e review the
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administrative record as a whole, weighing both the evidence that supports and that
which detracts from the ALJ’s conclusion.” Id. (quoting Andrews, 53 F.3d at
1039). If the evidence supports “‘more than one rational interpretation,’ we must
uphold the Commissioner’s decision.” Id. (quoting Andrews, 53 F.3d at 1039-40).
“We review only the reasons provided by the ALJ in the disability determination
and may not affirm the ALJ on a ground upon which [s]he did not rely.” Garrison
v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
The ALJ set forth clear and convincing reasons for disregarding reported
medical symptoms alleged to be causally related to the determinable severe
impairments. Thomas v. Barnhart, 278 F.3d 947, 957-60 (9th Cir. 2002). The ALJ
also gave careful consideration to the credibility of the reports of the severity of
symptoms before correctly concluding that the reported symptoms were not
substantiated by objective medical evidence. The ALJ properly weighed
Leverenz’s testimony along with the appropriate medical evidence, including the
observations of Dr. Shepard, a consultative examining physician who concluded
that Leverenz’s actual physical functioning was inconsistent with her complaints.
The ALJ properly excluded migraine headaches from complainant’s RFC
determination because the record did not support her claims regarding their
severity, and her daily activities were inconsistent with Leverenz’s claimed
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symptoms. Id. at 959 (citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d
595, 600 (9th Cir. 1999)) (“If the ALJ’s credibility finding is supported by
substantial evidence in the record, we may not engage in second-guessing.”); see
also Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d 1219, 1227 (9th Cir. 2009)
(citing Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)) (“In reaching
a credibility determination, an ALJ may weigh inconsistencies between the
claimant’s testimony and his or her conduct, daily activities, and work record,
among other factors.”).
Any error committed by the ALJ in failing to specifically address the
observations of Leverenz’s husband was harmless because that testimony was
nearly identical to Leverenz’s own testimony. Molina v. Astrue, 674 F.3d 1104,
1121-22 (9th Cir. 2012) (quoting Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir.
2011) (“[A]n ALJ’s failure to comment upon lay witness testimony is harmless
where ‘the same evidence that the ALJ referred to in discrediting [the claimant’s]
claims also discredits [the lay witness’s] claims.’”)) .
Substantial evidence supported the ALJ’s decision to reject the opinion of
treating physician Dr. Womack because the medical source statement was on a
standard form check-off report that failed to provide “any clinical findings or
narrative to support the limitations assessed.” The ALJ also properly considered
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that more than a year had passed since Dr. Womack last treated Leverenz. Dr.
Womack’s opinion was then weighed against the opinions of two other physicians
that were based on objective clinical findings made following personal
examination of Leverenz, as well as the opinion of the doctor who prepared a
functional assessment citing to specific evidence. See Batson v. Comm’r of Soc.
Sec. Admin., 359 F.3d 1190, 1194-95 (9th Cir. 2004) (holding that the ALJ did not
err in giving minimal weight to the views of treating physicians whose opinions
were conclusory, in the form of a check list, lacked substantive medical findings,
and conflicted with the “results of a consultative medical evaluation”); Thomas,
278 F.3d at 957 (“The ALJ need not accept the opinion of any physician, including
a treating physician, if that opinion is brief, conclusory, and inadequately
supported by clinical findings.”).
We decline Leverenz’s invitation to address the credit-as-true rule described
in Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Because the ALJ
properly denied claimant’s application for benefits, there is no reason to consider
remand.
AFFIRMED.
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