Kathleen Thrasher v. Carolyn Colvin

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KATHLEEN THRASHER, No. 14-35739
Plaintiff - Appellant, D.C. No. 3:13-cv-00166-SLG
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Submitted May 14, 2015**
Anchorage, Alaska
Before: CANBY, BYBEE, and WATFORD, Circuit Judges.
Kathleen Thrasher appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for Supplemental
Security Income. We review de novo the district court’s order affirming the ALJ’s
*
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).
denial of benefits. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). We
may “reverse only if the ALJ’s decision was not supported by substantial evidence
in the record as a whole or if the ALJ applied the wrong legal standard.” Id. We
will not reverse an ALJ’s decision on account of an error that is harmless. Id. at
1111. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Thrasher argues that the ALJ’s nondisability determination is unsupported
by substantial evidence because the ALJ failed to consider properly the evidence
from Thrasher’s mother and Thrasher’s past suicide attempts. She maintains that
when the evidence is properly considered, she fits the description of a hypothetical
individual that the vocational expert testified would be “preclude[d]” from all the
jobs he had testified to—in other words, she is “unable to engage in sustained work
activity for a full eight-hour workday on a regular and consistent basis.”
The ALJ’s opinion discussed and considered evidence from Thrasher’s
mother, Janet Bordereiux. To the extent the ALJ discounted portions of
Bordereiux’s report and testimony, he offered germane reasons: Thrasher has few
limitations, functions independently on a daily basis, and medication helps control
her symptoms. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)
(holding that “[i]nconsistency with medical evidence” constitutes a germane reason
for discrediting the testimony of a lay witness); see also Valentine v. Comm’r Soc.
2
Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (holding that because “the ALJ
provided clear and convincing reasons for rejecting [the claimant’s] own subjective
complaints, and because [the lay witness’s] testimony was similar to such
complaints, it follows that the ALJ also gave germane reasons for rejecting [the lay
witness’s] testimony”). Thus, Bordereiux’s statements do not undermine our
conclusion that substantial evidence supports the ALJ’s determination that
Thrasher is capable of performing work limited to “one to three step tasks with
only simple, work-related decisions and few, if any, workplace changes,” when
given the proper medication.
Next, Thrasher argues that the ALJ did not adequately consider and failed to
develop the record regarding evidence of Thrasher’s prior suicide attempts,
pointing to medical records suggesting that Thrasher had previously been
hospitalized for “suicidal behavior” and has a history of “multiple suicide attempts,
including drowning and overdosing.” She also contends that the ALJ
misunderstood the record with respect to Thrasher’s 2010 suicide attempt, arguing
that she had attempted suicide because she and a friend were “parting” and not
because they were “partying,” as the ALJ stated. To meet the required level of
severity for Thrasher’s mental impairments, the regulations require an ALJ to find,
among other things, “repeated episodes of decompensation, each of extended
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duration,” 20 C.F.R. Pt. 404, subpt. P, app. 1 §§ 12.04; 12.06; 12.09, defined as
“three episodes within 1 year, or an average of once every 4 months, each lasting
for at least 2 weeks,” id. § 12.00C.4.
The administrative record is sufficiently clear to foreclose the possibility that
further factual development would have revealed three, post-onset episodes of
decompensation, taking place within one year or an average of once every four
months, and lasting for at least two weeks each, as required under the regulations.
Accordingly, the record is not sufficiently ambiguous to trigger the ALJ’s duty to
develop the record further. See Mayes v. Massanari, 276 F.3d 453, 459–60 (9th
Cir. 2001). Even if it was, the ALJ’s failure was harmless. See Matthews v.
Shalala, 10 F.3d 678, 681 (9th Cir. 1993). The ALJ’s misreading of the record
regarding Thrasher’s 2010 suicide attempt was also, at most, harmless error.
Molina, 674 F.3d at 1115. Whether Thrasher attempted suicide as a result of
“parting” or partying with a friend, the result is the same: She suffered one episode
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of decompensation, which is not sufficient to establish the required level of
severity for her mental impairments.1
Finally, in her reply brief, Thrasher raises two new arguments not addressed
in the opening brief: (1) the agency failed to assess depression as a medically
determinable impairment; and (2) the agency failed to assess the opinions of
Thrasher’s treating physician, Dr. Dipreta. These arguments are waived because
they were not raised in the opening brief. Smith v. Marsh, 194 F.3d 1045, 1052
(9th Cir. 1999). In any event, they lack merit. The ALJ concluded that Thrasher
has “affective disorder,” which encompasses depression, and acknowledged
Thrasher’s “[c]omplaints of depression,” the impact of medication on her
depression, the effect of alcohol on her depression, and signs of recovery from
depression. Moreover, the ALJ cited to at least five of Dr. Dipreta’s reports and
relied in large part on those reports to conclude that Thrasher’s symptoms could be
controlled using medication. Thus, there is no merit to Thrasher’s argument that
the ALJ failed to consider either depression or Dr. Dipreta’s medical opinions.
1
Thrasher also contends that the ALJ’s failure to properly consider
evidence at step 2 carried forward to infect the analysis at steps 3 and 4, citing
Keyser v. Comm’r of Soc. Sec. Admin., 648 F.3d 721, 726 (9th Cir. 2011). Keyser
is inapposite. Keyser held that an ALJ’s failure to make explicit findings regarding
the four functional areas is not harmless where the claimant presents a “colorable
claim of mental impairment.” Id. Here, by contrast, the ALJ made explicit,
narrative findings in each of the functional areas.
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In sum, substantial evidence supports the ALJ’s conclusion that Thrasher is
not disabled within the meaning of the Social Security Act.
AFFIRMED.
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