Melva Colter v. Carolyn W. Colvin

FILED
NOT FOR PUBLICATION
FEB 03 2014
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MELVA COLTER, No. 11-57005
Petitioner-Appellant, D.C. No. 2:09-cv-08125-PSG-PJW
v. MEMORANDUM**
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Phillip S. Gutierrez, District Judge, Presiding
Argued and Submitted August 30, 2013
Pasadena, California
Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.***
Pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
*
Carolyn W. Colvin, Acting Commissioner, Social Security Administration, has
been substituted for her predecessor, Michael J. Astrue.
This disposition is not appropriate for publication and is not precedent
**
except as provided by Ninth Circuit Rule 36-3.
The Honorable Ivan L. R. Lemelle, District Judge for the U.S. District
***
Court for the Eastern District of Louisiana, sitting by designation.
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Melva Colter appeals the district court's order affirming the Administrative Law
Judge's ("ALJ") denial of her application for disability insurance benefits and
supplemental security income under Titles II and XVI of the Social Security Act, 42
U.S.C. §§ 401-434, §§ 1381-1385. We have jurisdiction under 28 U.S.C. § 1291.
Because Colter waived the argument that the Commissioner insufficiently assessed
and weighed her Somatoform disorder by not raising it before the district court, and
because the ALJ's decision is supported by substantial evidence in the absence of such
waiver, we affirm the district court's decision.
We review de novo the district court's decision upholding the denial of
benefits. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). Both this Court
and the district court must affirm an ALJ’s denial of benefits unless it is based on
legal error or the findings of fact are not supported by substantial evidence. Id.
A challenge to the ALJ's findings that was not raised at the district court is
waived and will not be considered by this Court unless one of three exceptions
applies. Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). Issues not
discussed in the body of the opening brief are likewise waived. Martinez-Serrano
v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996). On appeal to this Court, Colter
argues for the first time that the ALJ erred because it failed to "consider, discuss,
and make findings" concerning her Somatoform disorder. Because Colter did not
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raise Somatoform disorder-based arguments before the district court, and because
Colter did not assert any exceptions to the waiver doctrine in her opening brief, we
deem these arguments waived.
We additionally hold that the ALJ's decision is supported by substantial
evidence. The ALJ found that Colter was not presumptively disabled and had the
residual functional capacity to perform her past relevant work in various office
settings and in a significant number of other jobs. On that basis, the ALJ concluded
that Colter was not disabled as defined by the Social Security Act. In this appeal,
Colter argues that the ALJ erred in reaching that conclusion in two respects.
First, Colter contends that the ALJ improperly disregarded her treating
physicians' diagnoses of Somatoform disorder in assessing disability. The record,
however, shows conflicting medical evidence concerning Colter’s capacity to
work. As many as five treating physicians and psychologists opined that Colter
was able to work. And, while some of Colter’s treating physicians assessed more
severe limitations, those assessments are inconsistent with Colter’s own
descriptions of her daily activities. “Where . . . the record contains conflicting
medical evidence, the ALJ is charged with determining credibility and resolving
the conflict . . .” Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012), quoting
Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003) (citation omitted). “If a
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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....” Chaudry, 668 F.3d at 671, quoting Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted). Here, the ALJ's
findings are sufficiently specific to support the conclusion that Colter was not
presumptively disabled and able to return to work. We thus conclude that the ALJ
did not “reject” evidence of Somatoform disorder and that such evidence was
rather overcome by inconsistencies and contrary evidence.
Colter further argues that the ALJ failed to consider her Somatoform disorder
when assessing her credibility. An ALJ's credibility findings must be properly
supported by the record and sufficiently specific to ensure a reviewing court that the
ALJ did not "arbitrarily discredit" a claimant's subjective testimony. Thomas v.
Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Moreover, if “the ALJ's credibility
finding is supported by substantial evidence in the record, we may not engage in
second-guessing." Id. at 959. Here, Colter's own testimony is undermined and
discredited by both medical opinion testimony and her own description of her daily
activities, notwithstanding any consequence Somatoform disorder would have had on
the assessment of her credibility. The ALJ found Colter's testimony of allergic
reactions to chemicals and electromagnetic fields unsupported by several tests
4
revealing no allergies. Further, Colter, by her own admission, engaged in daily
activities that showed she was able to work. Accordingly, we hold that the ALJ's
decision to discount the credibility of Colter's testimony is adequately supported by
substantial evidence.
AFFIRMED.
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