Douglas Casey v. Carolyn Colvin

FILED
NOT FOR PUBLICATION
FEB 22 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS L. CASEY, No. 14-55142
Plaintiff - Appellant, D.C. No. 5:12-cv-02131-RNB
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Robert N. Block, Magistrate Judge, Presiding
Submitted February 10, 2016**
Pasadena, California
Before: TROTT, DAVIS***, and OWENS, Circuit Judges.
*
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).
***
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
Douglas Casey appeals from the district court’s judgment affirming the
Social Security Administration’s denial of his application for disability insurance
benefits under Title II of the Social Security Act. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
1. Casey first contends that the ALJ erred in finding that his subjective pain
testimony was only partially credible. The ALJ provided three reasons for so
finding: (1) Casey’s testimony about the severity and extent of his pain was not
supported by the objective medical evidence; (2) Casey’s performance of daily
household activities indicated that he had the physical and social abilities necessary
for full-time employment; and (3) Casey’s testimony about the severity and extent
of his pain was inconsistent with his conservative pain treatment.
As to the third reason, the district court held that the ALJ gave specific and
legitimate reasons that were supported by substantial evidence, and we agree.
Here, Casey himself testified that he only used Aleve and Advil to treat his pain,
which reduced his pain enough so that he could “manage it.” Casey acknowledged
that his doctors chose not to prescribe him any stronger pain medications. See
Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (indicating that use of only
over-the-counter pain medication constitutes a conservative course of pain
treatment). It is permissible for the ALJ to rely on the claimant’s conservative pain
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treatment regimen as evidence that his pain is not as severe as he describes. Id. at
751 (“[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s
testimony regarding severity of an impairment.” (quoting Johnson v. Shalala, 60
F.3d 1428, 1434 (9th Cir. 1995))). As the ALJ provided clear and convincing
reasons supported by substantial evidence to discount Casey’s subjective pain
testimony based on his conservative course of treatment, we need not address the
other two reasons the ALJ provided.
2. Casey also contends that the ALJ erred in determining Casey’s Residual
Functional Capacity (RFC) by failing to include limitations on work “at” shoulder
level or limitations on repetitive head and neck movement. Even assuming the
ALJ did not include such limitations, Casey’s argument fails because he did not
meet his burden to show that the error would have had any effect on the kinds of
jobs the vocational expert testified Casey would be capable of performing. See
Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012) (“[T]he burden of
showing that an error is harmful normally falls upon the party attacking the
agency’s determination.” (alteration in original) (quoting Shinseki v. Sanders, 556
U.S. 396, 409 (2009))). The error was therefore harmless. See, e.g., Stubbs-
Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (explaining that the
ALJ’s erroneous omission of claimant’s postural limitations from the RFC was
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harmless since the sedentary jobs in which the ALJ determined the claimant could
work required only “infrequent stooping, balancing, crouching, or climbing”).
3. Casey also argues that: (1) the ALJ was collaterally estopped from
relying on Dr. Warren D. Yu’s report in finding that Casey was not disabled under
Title II because the agency relied on Dr. Yu’s report in finding Casey disabled
under Title XVI; and (2) the vocational expert’s testimony violated certain
Program Policy Statements issued by the Social Security Administration. These
arguments were raised for the first time on appeal and are therefore waived. See
Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).
AFFIRMED.
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