Vernon Barr v. Carolyn W. Colvin

FILED
NOT FOR PUBLICATION JUL 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERNON BARR, No. 13-35202
Plaintiff - Appellant, D.C. No. 3:12-cv-05094-RBL
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted July 11, 2014
Seattle, Washington
Before: ALARCÓN, TASHIMA, and MURGUIA, Circuit Judges.
Vernon Barr appeals the denial of his application for Social Security
benefits. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The Administrative Law Judge (“ALJ”) did not err in not evaluating
Barr’s eczema at step two because Barr presented no medical evidence of an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
eczema impairment. 20 C.F.R. §§ 404.1513(a), 416.913(a); Ukolov v. Barnhart,
420 F.3d 1002, 1005 (9th Cir. 2005). Furthermore, the Appeals Council was not
required to remand for further factual development after Barr produced medical
evidence of his eczema because, even with the medical evidence as part of the
record, substantial evidence supported the ALJ’s decision not to consider Barr’s
eczema as a severe impairment. See Warre v. Comm’r of Soc. Sec. Admin., 439
F.3d 1001, 1006 (9th Cir. 2006).
2. The ALJ provided “specific, clear and convincing reasons” to
discredit Barr’s testimony about the severity of his impairments. Taylor v. Comm’r
of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011). The ALJ discredited
Barr’s testimony about his knee pain because it was inconsistent with Barr’s prior
statements and objective medical evidence that Barr was “doing well” and making
“satisfactory progress” in pain symptoms. The ALJ discredited Barr’s testimony
about the severity of his mental health impairments based on conflicting evidence
of symptoms and inconsistent testimony about Barr’s substance abuse. The ALJ
also noted that Barr had demonstrated drug-seeking behavior and a probable
secondary gain motive related to gambling. See Thomas v. Barnhart, 278 F.3d
947, 959 (9th Cir. 2002). The ALJ’s decision to discredit Barr’s testimony about
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the severity of his impairments was supported by substantial evidence. In sum, the
ALJ did not err in any of his challenged credibility determinations.
3. The ALJ provided a specific and legitimate reason why he gave only
some weight to examining physician Dr. Trowbridge’s opinion. See Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). The ALJ also
provided a germane reason why he gave little weight to nurse practitioner Nelson’s
opinion. Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010). The
ALJ’s determination that Trowbridge’s and Nelson’s opinions conflicted with the
medical record was supported by substantial evidence.
4. The ALJ discounted lay witness Seivert’s testimony about Barr’s
symptoms for the germane reason that her testimony conflicted with medical
evidence. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). Thus, the ALJ
did not err in discounting Seivert’s testimony.
5. The ALJ did not err in relying on the vocational expert’s testimony in
response to his hypothetical that did not include Barr’s eczema or his allegedly
severe mental health limitations. This argument restates the arguments rejected
above and fails for the same reasons. See, e.g., Stubbs-Danielson v. Astrue, 539
F.3d 1169, 1175-76 (9th Cir. 2008).
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The judgment of the district court affirming the Commissioner’s denial of
benefits is
AFFIRMED.
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