Jeffrey Harris v. Carolyn W. Colvin

FILED
NOT FOR PUBLICATION AUG 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFERY J. HARRIS, No. 13-15053
Plaintiff - Appellant, D.C. No. 4:11-cv-00743-DTF
v.
MEMORANDUM*
CAROLYN W. COLVIN,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
D. Thomas Ferraro, Magistrate Judge, Presiding
Submitted May 22, 2014**
San Francisco, California
Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.
Jeffery J. Harris appeals from a decision of a magistrate judge upholding the
determinations of the Social Security Appeals Council (“the agency”) that Harris
was, for the purposes of the Social Security Act, “not disabled” and capable of
*
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).
performing medium exertional work, and dismissing Harris’s appeal for Social
Security and disability insurance benefits. We affirm the decision of the magistrate
judge. Because the parties are familiar with the facts, we do not review them here.
Substantial evidence supports the agency’s determination that Harris was not
disabled. The record, considered as a whole, Ryan v. Comm’r of Soc. Sec., 528
F.3d 1194, 1198 (9th Cir. 2008), establishes that Harris continued to work, obtain
degrees, and be active both physically and in his community. The record does not
support the claim that there was a clinical basis for the symptoms Harris alleged.
No clinical findings supported Harris’s reported symptoms; diagnostic tests were
negative; and examinations were unremarkable. Harris’s statements to various
doctors were inconsistent, indicating a lack of credibility. See Social Security
Ruling 96-7p, 1996 WL 374186, at **5–6.
Harris suffered no due process violation. Harris was given a fair hearing, and
the record stemming from the numerous proceedings is substantial. Neither the
Appeals Council nor the magistrate judge violated Harris’s due process rights by
failing to give more explicit treatment to certain of his arguments. There is no
requirement that the Appeals Council affirmatively respond to each asserted
argument, see 20 C.F.R. § 404.966–982, but in any event, the Appeals Council
noted that it had considered Harris’s brief, and we “generally take a lower tribunal
at its word when it declares that it has considered a matter.” Hackett v. Barnhart,
395 F.3d 1168, 1173 (10th Cir. 2005). We see no reason to do otherwise here. For
similar reasons, there was no due process violation in the district court; the
magistrate judge considered each of the arguments briefed substantively by Harris.
Finally, the second Administrative Law Judge (“ALJ”) did not violate the Appeals
Council’s February 2010 order because the ALJ undertook the tasks directed by
the Council.
The agency likewise did not err in its evaluation of medical evidence. The
agency articulated “specific and legitimate reasons” for discounting the opinion of
Dr. Lindstrom, which was contradicted by three other doctors and not supported by
any clinical findings or diagnostic testing. Bray v. Comm’r of Soc. Sec. Admin.,
554 F.3d 1219, 1228 n.8 (9th Cir. 2009).1 The agency reasonably relied on the
testimony of Dr. Gerber. The argument that Dr. Gerber refused to consider certain
non-medical evidence is contradicted by the record, and it was proper for Dr.
Gerber to rely primarily on diagnostic test results. The agency gave sufficiently
“germane” reasons for discounting the statements of various lay witnesses because
1
The agency was not required to specifically reference each factor listed in
20 C.F.R. § 404.1527(c). See Social Security Ruling 06-03p, 2006 WL 2329939, at
*5 (noting that “[n]ot every factor for weighing opinion evidence will apply in
every case.”). Nor was the agency required to re-contact Dr. Lindstrom, since the
evidence was sufficient to make a determination as to disability. 20 C.F.R.
§ 404.1520b(c); McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (noting that
“[r]ejection of the treating physician’s opinion . . . does not by itself trigger a duty
to contact the physician for more explanation.”).
they were inconsistent with the record and did not support the frequency of
episodes Harris alleged he experienced. Molina v. Astrue, 674 F.3d 1104, 1114
(9th Cir. 2012) (noting that “if the ALJ gives germane reasons for rejecting
testimony by one witness, the ALJ need only point to those reasons when rejecting
similar testimony by a different witness.”). Likewise, the agency was not required
to rely on the testimony of a vocational expert who in turn relied on Harris’s
discounted testimony. Id.; Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006)
(noting that the ALJ is “free to accept or reject restrictions in a hypothetical
question that are not supported by substantial evidence” (internal quotation marks
omitted)).
Finally, the agency reasonably assessed Harris’s mental limitations when it
found that Harris was capable of unskilled work without additional limitations. The
finding was consistent with testing results and record evidence showing that Harris
was able to perform a wide range of activities. The agency was not required to
include additional limitations based on Harris’s subjective complaints, which the
agency had determined were not credible. Nor was there a requirement that the
agency obtain an updated medical opinion about Harris’s mental health. Social
Security Ruling 96-6p, 1996 WL 374180 at **3–4, requires updated opinions only
where the ALJ or the Appeals Council believes that the evidence suggests that a
judgement of equivalence might be reasonable or that newly-received evidence
might change the agency medical consultant’s opinion, and neither circumstance
was present here.
AFFIRMED.