Sharon Petersen v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHARON A. PETERSEN, No. 16-35989
Plaintiff-Appellant, D.C. No. 3:15-cv-05837-MAT
v.
NANCY A. BERRYHILL, Acting MEMORANDUM*
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the
Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted June 15, 2018**
Seattle, Washington
Before: M. SMITH and WATFORD, Circuit Judges, and RAYES,*** District
Judge.
*
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).
***
The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
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Appellant Sharon Petersen appeals from the district court’s order affirming
the denial of Social Security disability insurance benefits. Petersen applied for
disability insurance benefits in January 2013, alleging disability beginning October
10, 2011, due to neck and left shoulder injuries she sustained while working as a
nursing assistant, weakness in her left hand, post-traumatic stress disorder, and
depression. Petersen contends that, in denying her application, the administrative
law judge (“ALJ”) improperly discounted her testimony about her symptoms and
limitations and erred in weighing the various medical opinions in the record.
Petersen argues that the ALJ consequently failed to properly assess her residual
functional capacity (“RFC”) and erred by concluding that Petersen could perform
other work in the national economy despite her impairments. Lastly, Petersen
contends that new medical evidence submitted by her to the Appeals Council shows
that the ALJ’s decision is not supported by substantial evidence.
We have jurisdiction pursuant to 28 U .S.C. § 1291. We review the district
court’s order de novo, but consider only those issues raised by the party challenging
the ALJ’s decision. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Lewis v. Apfel,
236 F.3d 503, 517 n.13 (9th Cir. 2001). The ALJ’s disability determination will be
“upheld unless it contains legal error or is not supported by substantial evidence.”
Orn, 495 F.3d at 630. We affirm.
2
The ALJ provided the requisite specific, clear, and convincing reasons for
finding Petersen’s symptom testimony “not entirely credible.” Smolen v. Chater, 80
F.3d 1273, 1281 (9th Cir. 1996) (“[T]he ALJ can reject the claimant’s testimony
about the severity of her symptoms only by offering specific, clear and convincing
reasons for doing so.”).1 The ALJ sufficiently identified inconsistencies between
Petersen’s testimony and the objective medical evidence. See Rollins v. Massanari,
261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain testimony cannot be
rejected on the sole ground that it is not fully corroborated by objective medical
evidence, the medical evidence is still a relevant factor in determining the severity
of the claimant’s pain and its disabling effects.”). The ALJ also properly relied on
evidence that Petersen gave poor or inconsistent effort on examinations, and of
inconsistencies between Petersen’s reports to her medical providers and those
1
At the time of the ALJ’s decision, Social Security Ruling (“SSR”) 96-7p,
1996 WL 374186 (July 2, 1996), governed evaluations of claimant symptom
testimony. Effective March 16, 2016, however, the Social Security Administration
rescinded SSR 96-7p and eliminated the term “credibility” in order to “clarify that
subjective symptom evaluation is not an examination of an individual’s character.”
SSR 16-3p, 2016 WL 1119029, at *1 (Mar. 16, 2016). Because the prior ruling was
in effect at the time of the ALJ’s decision, the ALJ was bound to follow it. See 20
C.F.R. § 402.35(b)(1). Moreover, SSR 16-3p’s changes were stylistic, and the new
ruling remains consistent with Ninth Circuit precedent existing at the time of the
ALJ’s decision. See Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017).
Accordingly, the ALJ’s use of the word “credibility” is not, in and of itself, error,
both because the ALJ was bound to follow the ruling in effect at the time she
rendered her decision, and because the new ruling does not alter the pre-existing
standards in the Ninth Circuit for evaluating a claimant’s symptom testimony.
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providers’ observations. See Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012)
(noting that ALJ’s rejection of claimant’s symptom testimony was supported by
evidence that claimant “appeared not to exert adequate effort during testing”).
Further, the ALJ properly relied on evidence that Petersen’s pain and symptoms
were controlled with medication and treatment. See Warre v. Comm’r of the Soc.
Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be
controlled effectively with medication are not disabling[.]”).
The ALJ did not err in weighing the various conflicting medical opinions. See
Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995) (discussing standards for
weighing competing medical opinions); Tommasetti v. Astrue, 533 F.3d 1035, 1041–
42 (9th Cir. 2008) (“An ALJ may reject a treating physician’s opinion if it is based
‘to a large extent’ on a claimant’s self-reports that have been properly discounted[.]”
(quoting Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999));
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (noting
that physician’s opinion that claimant could not work for a limited period of time
was not indicative of “claimant’s long-term functioning”); Osenbrock v. Apfel, 240
F.3d 1157, 1165 (9th Cir. 2001) (“A treating physician’s most recent medical reports
are highly probative.”); 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent
a medical opinion is with the record as a whole, the more weight we will give to that
medical opinion.”). Although Petersen offers an alternative, more favorable
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interpretation of the competing medical opinion evidence, it is the ALJ’s rational
interpretation that controls. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
The ALJ did not err in assessing Petersen’s RFC or in posing hypothetical
questions to the vocational expert during the administrative hearing. The ALJ’s RFC
and hypothetical questions “took into account those limitations for which there was
record support.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Nor was
the vocational expert’s testimony inconsistent with the Dictionary of Occupational
Titles (“DOT”). Neither the vocational expert nor the DOT indicated that both hands
were needed at all times to perform the jobs of house sitter and film touch-up
inspector, and the surveillance-system monitor position requires no reaching,
handling, or fingering. See DOT job description for Surveillance-System Monitor,
379.367-010, 1991 WL 673244 (1991).
The new medical evidence Petersen submitted to the Appeals Council does
not affect the ALJ’s disability determination and does not warrant remand because
the new evidence post-dates the period under review, is not retroactive to that period,
and therefore would not reasonably affect the ALJ’s decision. Brewes v. Comm’r of
Soc. Sec. Admin, 682 F.3d 1157, 1162 (9th Cir. 2012) (“The Commissioner’s
regulations permit claimants to submit new and material evidence to the Appeals
Council and require the Council to consider that evidence in determining whether to
review the ALJ’s decision, so long as the evidence relates to the period on or before
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the ALJ’s decision.”); Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001)
(explaining that new evidence is “material” under 42 U.S.C. § 405(g) if it “‘bear[s]
directly and substantially on the matter in dispute,’ and if there is a ‘reasonabl[e]
possibility that the new evidence would have changed the outcome of the . . .
determination’” (alterations in original) (quoting Booz v. Sec’y of Health & Human
Servs., 734 F.2d 1378, 1380 (9th Cir. 1984))).
AFFIRMED.
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