Charel Fisher v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHAREL LYNN FISHER, No. 16-35235
Plaintiff-Appellant, D.C. No. 3:15-cv-05507-JPD
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue, Magistrate Judge, Presiding
Submitted December 20, 2017**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges
Charel Fisher appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Fisher’s application for disability
insurance benefits under Title II of the Social Security Act. We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We review de novo, Rounds v. Comm’r of Soc. Sec.
Admin., 807 F.3d 996, 1002 (9th Cir. 2015), and we affirm.
By failing to raise the issue before the district court, Fisher waived her
challenge to the determination by the Administrative Law Judge (ALJ) that
Fisher’s testimony was not entirely credible. See Greger v. Barnhart, 464 F.3d
968, 973 (9th Cir. 2006). Because credibility is not purely an issue of law, no
exception applies. Id. (explaining that this Court can still review an issue despite
failure to raise it at the district court when it is purely one of law).
The record supports the ALJ’s observation that Dr. Ballard’s December
2012 opinion does not indicate limitations that would last more than 12 months.
This fact supports the ALJ’s decision to give her opinion “little weight.” Garrison
v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (explaining that disability requires an
impairment that is expected to last at least 12 months).
The ALJ properly assigned “little weight” to Dr. Ballard’s November 2013
opinion because (1) it depended upon subjective complaints not supported by
physical findings and imaging studies, and (2) her diagnosis of fibromyalgia was
not backed by objective clinical findings. See Tommasetti v. Astrue, 533 F.3d 1035,
1041 (9th Cir. 2008) (concluding that the ALJ properly rejected a treating
physician’s opinion that was inconsistent with objective medical evidence); Bayliss
v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (including inadequate support by
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clinical findings as a reason that the ALJ can rely upon to reject a treating
physician’s opinion).
Taking into account the evidence considered by the Appeals Council,
substantial evidence does not support the ALJ’s additional reasons for rejecting Dr.
Ballard’s November 2013 opinion involving the continuity of her treatment, but
any error was harmless, because the ALJ provided other specific and legitimate
reasons supported by substantial evidence for rejecting Dr. Ballard’s opinion. See
Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012)
(concluding that evidence considered by the Appeals Council is part of the record
that this Court must review in determining whether substantial evidence supports
the ALJ’s opinion); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
(holding that error is harmless when it is inconsequential to the ultimate
nondisability determination).
The ALJ properly rejected the more severe limitations in Dr. Irwin’s opinion
based on inconsistencies with objective medical evidence of unremarkable mental
status examinations. The Residual Functional Capacity (RFC) reasonably
incorporated the limitations in the portions of Dr. Irwin’s opinion that the ALJ
credited. See Tommasetti, 533 F.3d at 1041 (explaining that the ALJ can properly
reject a medical opinion that is inconsistent with the medical record); Stubbs-
Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (affirming the ALJ’s
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assessment of the RFC based on the medical evidence).
The RFC reasonably incorporated Dr. Donahue’s opinion regarding Fisher’s
“rumination” when experiencing pain, and that she would have some difficulty
with workplace stress. See Stubbs-Danielson, 539 F.3d at 1174.
The ALJ properly weighed the remaining medical evidence, and substantial
evidence supports the ALJ’s conclusions. See Tommasetti, 533 F.3d at 1041(concluding that the ALJ is responsible for resolving conflicts in the medical
evidence).
While the lay witnesses each described their personal observations of Fisher,
substantial evidence supports the ALJ’s reasoning that their opinions regarding
Fisher’s specific functional limitations relied on Fisher’s self-descriptions. See
Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009)
(reasoning that the ALJ provided a germane reason to reject lay testimony because
it was substantially similar to the claimant’s own subjective complaints); Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (explaining that
when more than one interpretation of the evidence is plausible this Court should
defer to the ALJ).
The ALJ properly included in the RFC and the hypothetical to the
Vocational Expert (VE) all limitations that were supported by substantial evidence.
See Stubbs-Danielson, 539 F.3d at 1174-76 (concluding that the claimant fails to
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raise a fresh issue based on the RFC and VE testimony by restating earlier
arguments about the medical evidence).
AFFIRMED.
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