Trina Towne v. Nancy Berryhill

FILED
NOT FOR PUBLICATION
DEC 15 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRINA RENEE TOWNE, individually No. 15-35752
and as personal representative, in the place
and stead of Ginger Appler Swain, DC No. CV 14-1113 BR
Plaintiff-Appellant,
MEMORANDUM*
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted November 9, 2017**
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
Before: TASHIMA and W. FLETCHER, Circuit Judges, and LASNIK,***
District Judge.
Appellant Trina Renee Towne (“Towne”) appeals the Social Security
Commissioner’s denial of disability insurance benefits to her late mother, Ginger
Appler Swain (“Appler Swain”).1
Appler Swain was employed for several years as a part-time caregiver. In
2010, after being fired, she applied for social security benefits. Appler Swain
alleged a disability based on hand and leg pain stemming from psoriasis and
arthritis, among other ailments. Later that year, Appler Swain began another
caregiving job.
Appler Swain testified before an Administrative Law Judge (“ALJ”) that she
could work only part-time due to “severe” hand and hip pain. Appler Swain
presented medical evidence of substantial health problems, as well as lay testimony
about her limitations at work. A vocational expert (“VE”) testified that Appler
Swain could not perform her past relevant work, but that a person with her residual
***
The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
1
Appler Swain, the original appellant, died after briefing, but before
submission of the case for decision. Towne was substituted for Appler Swain.
Towne may receive Appler Swain’s disability insurance benefits, but not her
supplemental security income (“SSI”). See C.F.R. §§ 404.503(b); 416.542(b).
Thus, Appler Swain’s SSI claim has become moot. We refer to plaintiff-appellant
in this disposition as Appler Swain.
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functional capacity (“RFC”) could work as a cashier, electronics worker, or storage
facility clerk. On that basis, the ALJ concluded that Appler Swain was not
disabled and denied benefits. The ALJ also discounted certain medical opinions
and lay testimony.
The district court affirmed. Appler Swain appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review the ALJ’s decision for substantial
evidence, Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017), and we affirm.
1. The ALJ did not err in discounting the medical opinions of Appler
Swain’s treating and examining physicians, Drs. Ranton and Nolan. “The ALJ is
responsible for determining credibility and resolving conflicts in medical
testimony.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Ordinarily,
an ALJ must give a treating doctor’s opinion more weight. Turner v. Comm’r of
Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010). If a treating or examining doctor’s
opinion is contradicted, the ALJ may discount it for “specific and legitimate
reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005). “Substantial evidence is . . . more than a mere scintilla
but not necessarily a preponderance.” Tommasetti v. Astrue, 533 F.3d 1035, 1038
(9th Cir. 2008) (internal quotation marks and citations omitted). The ALJ’s
“findings are upheld if supported by inferences reasonably drawn from the record,
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and if evidence exists to support more than one rational interpretation, we must
defer to the [ALJ’s] decision.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
1190, 1193 (9th Cir. 1999) (citations omitted).
The ALJ discounted the opinions of Drs. Ranton and Nolan about Appler
Swain’s manipulative capacity as inconsistent with Appler Swain’s work activities.
Although the ALJ seems to have assumed that the physical requirements of Appler
Swain’s then-current caregiving job resembled those of her previous job, Appler
Swain presented no evidence to rebut that assumption. She was fired from her
previous caregiving job for interviewing elsewhere. Moreover, Appler Swain
affirmed that her then-current job involved “normal care giving duties.” The ALJ
could infer from that testimony that Appler Swain’s job required manipulative
activities inconsistent with the opinions of her treating doctors. Sample v.
Schweiker, 694 F.2d 639, 642 (9th Cir. 1989) (“[T]he [ALJ] is entitled to draw
inferences logically flowing from the evidence.”).
2. The ALJ did not err in discounting the opinions of Appler Swain’s
coworkers. “Lay testimony as to . . . how an impairment affects the claimant’s
ability to work is competent evidence that the ALJ must take into account.”
Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). An ALJ may discount lay
testimony for a “germane reason.” Id. The ALJ discounted the coworkers’
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testimony as inconsistent with the medical evidence, a germane reason. Lewis v.
Apfel, 236 F.3d 503, 511 (9th Cir. 2001).
3. Lastly, the ALJ did not err when examining the VE. If a claimant has
non-exertional limitations, the ALJ should rely on a VE’s testimony to determine
the jobs available to the claimant at step five. Tackett v. Apfel, 180 F.3d 1094,
1102 (9th Cir. 1999). Here, the ALJ propounded a hypothetical to the VE that
included Appler Swain’s limitations. See id. at 1101. The VE testified that three
types of jobs were available to a person with Appler Swain’s RFC. Zavalin v.
Colvin, 778 F.3d 842, 846 (9th Cir. 2015).
Appler Swain contends the ALJ failed to resolve a conflict between the VE’s
testimony and the Dictionary of Occupational Titles. If such a conflict exists, the
ALJ must ask the expert to explain the discrepancy. Massachi v. Astrue, 486 F.3d
1149, 1153 (9th Cir. 2007). In this case, there was no “obvious or apparent”
conflict, Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016), because the
expert’s testimony that Appler Swain could perform three light work jobs, was
consistent with her RFC of “less than a full range of light work.” Moreover, the
VE resolved any conflict by explaining that a person could sit or stand at each job,
in accordance with Appler Swain’s RFC. See Johnson v. Shalala, 60 F.3d 1428,
1435 (9th Cir. 1995) (“[E]xpert testimony may properly be used to show that the
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particular jobs, whether classified as light or sedentary, may be ones that a
particular claimant can perform.”).
• ! •
The judgment of the district court is AFFIRMED with respect to the claim
for disability insurance benefits. The appeal is DISMISSED with respect to the
claim for supplemental security income.
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