Kimberly Harris v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY A. HARRIS, No. 16-35122
Plaintiff-Appellant, D.C. No. 6:14-cv-01821-MC
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted September 18, 2018*
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges
Kimberly A. Harris appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Harris’s application for supplemental
security income under Title XVI of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Brown-Hunter v. Colvin, 806 F.3d
*
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).
487, 492 (9th Cir. 2015), and we affirm.
1. The Administrative Law Judge (“ALJ”) gave specific, clear and convincing
reasons for discrediting Harris’s testimony. See Vasquez v. Astrue, 572 F.3d 586,
591 (9th Cir. 2009). First, Harris exaggerated her symptoms. See Tonapetyan v.
Halter, 242 F.3d 1144, 1147-48 (9th Cir. 2001). Second, the record indicated that
Harris’s symptoms improved with treatment. See Garrison v. Colvin, 759 F.3d
995, 1017-18 (9th Cir. 2014). Third, the record contained evidence that Harris
sought treatment in order to obtain benefits. See Berry v. Astrue, 622 F.3d 1228,
1235 (9th Cir. 2010). Harris failed to challenge the ALJ’s reliance on any of these
reasons. Any error in relying on Harris’s daily activities to discredit her testimony
is harmless, because the ALJ provided several valid reasons for discrediting her
testimony. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th
Cir. 2008).
2. Substantial evidence supports the ALJ’s decision to reject Dr. Scott’s
opinion, because objective evidence from Dr. Scott’s exam indicated that Harris
over-reported symptoms. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir.
2014) (explaining that the ALJ may properly reject a medical opinion based on
substantial evidence showing that the opinion relied on the claimant’s unreliable
self-reports). The ALJ also reasoned that Dr. Scott failed to explain adequately his
conclusion that Harris could not complete a workday, and Dr. Scott’s opinion was
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unsupported by objective evidence. Harris fails to challenge these justifications.
Any error at step three in failing to specifically discuss Dr. Scott’s opinion
regarding the potential for decompensation as to listing 12.04(C) was harmless,
because the ALJ properly rejected Dr. Scott’s opinion. See Molina v. Astrue, 674
F.3d 1104, 1115 (9th Cir. 2012).
3. Substantial evidence supports the ALJ’s decision to reject Dr. Roman’s
opinion. Because the ALJ properly discredited Harris’s statements, the ALJ
correctly concluded that Dr. Roman’s opinion was undermined by her reliance on
Harris’s statements. See Ghanim, 763 F.3d at 1162.
4. The ALJ did not err by failing to discuss various GAF scores, because the
ALJ was not required to discuss evidence that was neither significant nor probative
of Harris’s functional limitations. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th
Cir. 2012) (noting that an ALJ need not discuss evidence that is neither significant
nor probative); Garrison, 759 F.3d at 1002 n.4 (explaining that “GAF scores,
standing alone, do not control determinations of whether a person’s mental
impairments rise to the level of a disability”). Because the GAF scale does not
have a direct correlation to the severity requirements in the mental health listings
and Harris’s GAF scores were not accompanied by explanations of the scores’
impact on Harris’s functional limitations, the ALJ was not required to discuss the
scores. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003);
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Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain
Injury, 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000).
5. Because Harris was represented by counsel during the administrative
proceedings, she waived any contention that the ALJ failed to consider Listing
12.05(C), Intellectual Disability, by failing to raise the issue before either the ALJ
or the Appeals Council. See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir.
2017) (“[A]t least when claimants are represented by counsel, they must raise all
issues and evidence at their administrative hearings in order to preserve them on
appeal.” (quoting Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999), as
amended (June 22, 1999))). For this same reason, we do not address Harris’s
argument that the ALJ failed to develop the record by ordering additional IQ
testing.
AFFIRMED.
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