Dena Kirchoff v. Andrew Saul

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENA K. KIRCHOFF, No. 15-35861
Plaintiff-Appellant, D.C. No. 3:14-cv-05824-KLS
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Karen L. Strombom, Magistrate Judge, Presiding
Submitted September 3, 2019**
Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges
Dena K. Kirchoff appeals the district court’s order affirming the
Commissioner of Social Security’s denial of her application for disability
insurance benefits and supplemental security income benefits under Titles II and
*
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).
XVI of the Social Security Act. At step five of the sequential evaluation process,
the administrative law judge (ALJ) determined that Kirchoff could perform jobs
that exist in significant numbers in the national economy. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Molina v. Astrue, 674 F.3d 1104,
1110 (9th Cir. 2012), and we affirm.
The ALJ provided clear and convincing reasons for concluding that Kirchoff
was not fully credible by explaining that Kirchoff’s relatively conservative
treatment history, ability to work full-time during the alleged period of disability,
and inconsistent statements regarding her pain undermined her testimony regarding
the severity of her impairments. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.
2007) (holding that daily activities may be grounds for an adverse credibility
finding where a claimant spends a substantial part of the day performing functions
that are transferable to a work setting); Parra v. Astrue, 481 F.3d 742, 750-51 (9th
Cir. 2007) (holding that conservative treatment justifies discounting a claimant’s
testimony regarding severity of impairment); Burch v. Barnhart, 400 F.3d 676, 680
(9th Cir. 2005) (explaining that an ALJ is permitted to consider a claimant’s
inconsistent statements to reject a claimant’s testimony).
The ALJ provided specific and legitimate reasons, supported by substantial
evidence, for assigning little weight to the contradicted opinion of Dr. Phillips.
First, the ALJ correctly noted that Dr. Phillips’s statements that Kirchoff was
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disabled, without discussion of actual functioning, were legal opinions on an issue
reserved to the Commissioner. See McLeod v. Astrue, 640 F.3d 881, 884-85 (9th
Cir. 2011). Second, the ALJ properly reasoned that Kirchoff’s subsequent work
activities undermined Dr. Phillips’s opinion that he was disabled. See Valentine v.
Comm’r of Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). The ALJ properly
assigned great weight to the opinion of consulting source Dr. Robert Hoskins
because Dr. Hoskins’s opinion was supported by the objective evidence.
The ALJ provided specific and legitimate reasons, supported by substantial
evidence, for assigning little to no weight to the opinions of Dr. Richard Coder, Dr.
Thomas Clifford, and Dr. Bruce Eather regarding Kirchoff’s mental impairments
by explaining that they were contradicted by the fact that Kirchoff was able to
sustain full-time employment after they evaluated her. See Tommasetti, 533 F.3d
at 1041 (9th Cir. 2008).
The ALJ provided germane reasons, supported by substantial evidence, for
partially rejecting the opinion of physician’s assistant Paul Surette by stating that
Surette’s opinion was inconsistent with the medical evidence and instead appeared
to be based on Kirchoff’s non-credible self-reports. See Ghanim, 763 F.3d at 1161
(explaining that the ALJ must give reasons that are germane to each witness to
discount the opinions of other sources); see also Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 694 (9th Cir. 2009) (explaining that where an ALJ has
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properly discounted a claimant’s testimony as non-credible, those reasons are
germane for rejecting similar lay witness testimony).
The ALJ provided germane reasons, supported by substantial evidence, for
partially rejecting lay witness Vince Kirchoff’s opinion because his opinion was
not supported by the objective medical evidence. See Molina, 674 F.3d at 1114(explaining that the ALJ must give reasons that are germane to each lay witness to
discount lay witness testimony).
The ALJ did not err in formulating Kirchoff’s residual functional capacity
(“RFC”) because the ALJ properly incorporated all of Kirchoff’s medically
supported limitations into her RFC.
We do not consider any issues that Kirchoff failed to specifically argue in
her opening brief. See Carmickle v. Comm’r of SSA, 553 F.3d 1155, 1161 n.2 (9th
Cir. 2008) (explaining that this court will not consider issues that are not
specifically and distinctly raised in the opening brief).
AFFIRMED.
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