Joseph Duran v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH MARCOS DURAN, No. 17-15786
Plaintiff-Appellant, No. 1:16-cv-00347-SAB
v. MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Stanley A. Boone, Magistrate Judge, Presiding
Submitted May 29, 2018**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Joseph Duran appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Duran’s application for supplemental
security income under Title XVI of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review the district court’s
*
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).
order de novo and the agency’s decision for substantial evidence and legal error.
Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). We affirm.
Duran’s omission of evidence indicating that he had limitations stemming
from asthma or back pain does not demonstrate that the ALJ neglected his duty to
fully and fairly develop the record. See Mayes v. Massanari, 276 F.3d 453, 459-60
(9th Cir. 2001) (claimant bears the burden of proving disability; “An ALJ’s duty to
develop the record further is triggered only when there is ambiguous evidence or
when the record is inadequate to allow for proper evaluation of the evidence.”).
The ALJ properly provided specific and legitimate reasons for
discounting the contradicted opinions of Duran’s treating psychiatrist and
examining psychologist. See Trevizo v. Berryhill, 871 F.3d 664, 675 (9th
Cir. 2017) (“If a treating or examining doctor’s opinion is contradicted by
another doctor’s opinion, an ALJ may only reject it by providing specific
and legitimate reasons that are supported by substantial evidence.” (citation
and internal quotation marks omitted)); see also Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (ALJ may reject a treating
physician’s opinion that is “brief, conclusory, and inadequately supported by
clinical findings” (citation and internal quotation marks omitted));
Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008) (ALJ “may
reject a treating physician’s opinion if it is based to a large extent on a
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claimant’s self-reports that have been properly discounted” (citation and
internal quotation marks omitted)); Warre v. Comm’r of Soc. Sec. Admin.,
439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled
effectively with medication are not disabling for the purpose of determining
eligibility for SSI benefits.”); Benton v. Barnhart, 331 F.3d 1030, 1038 (9th
Cir. 2003) (ALJ may consider the “duration of the treatment relationship and
the frequency and nature of contact” between the doctor and claimant).
The ALJ properly provided specific, clear, and convincing reasons for
discounting Duran’s testimony concerning his symptoms and limitations. See
Trevizo, 871 F.3d at 678 (“the ALJ can reject the claimant’s testimony about the
severity of her symptoms only by offering specific, clear and convincing reasons”);
see also Molina, 674 F.3d at 1112 (ALJ may consider factors such as
“inconsistencies either in the claimant’s testimony or between the testimony and
the claimant’s conduct”); Bray, 554 F.3d at 1227 (ALJ may consider, as one factor
among others, lack of objective medical evidence to corroborate the claimant’s
allegations); Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (ALJ may rely on a
claimaint’s “unexplained, or inadequately explained, failure to seek treatment”
(citation and internal quotation marks omitted)); Warre, 439 F.3d at 1006.
The ALJ did not err in assigning little weight to the lay witness testimony of
Duran’s mother, Catalina Bautista. See Bayliss v. Barnhart, 427 F.3d 1211, 1218
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(9th Cir. 2005) (“An ALJ need only give germane reasons for discrediting the
testimony of lay witnesses.”; inconsistency with evidence is the record is one such
reason); see also Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th
Cir. 2009) (where “the ALJ provided clear and convincing reasons for rejecting
[the claimant’s] own subjective complaints, and . . . [the claimant’s] testimony was
similar to such complaints, it follows that the ALJ also gave germane reasons for
rejecting [the lay witness’s] testimony”);
Duran has not identified specific evidence in the record that the ALJ
improperly failed to consider in formulating Duran’s residual functional capacity
(“RFC”), or shown how the ALJ’s Step Five findings lack substantial evidentiary
support. See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)
(when evidence is “susceptible to more than one rational interpretation, the ALJ’s
decision should be upheld” (citation and internal quotation marks omitted));
Osenbrock v. Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001) (ALJ need not include
in the hypothetical to the vocational expert impairments that are not supported by
substantial evidence).
AFFIRMED.
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