Daniel Joslyn v. Nancy Berryhill

FILED
NOT FOR PUBLICATION
DEC 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL P. JOSLYN, No. 15-35163
Plaintiff-Appellant, D.C. No. 3:14-cv-05277-JRC
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
J. Richard Creatura, Magistrate Judge, Presiding
Submitted December 11, 2017**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges
Daniel Joslyn appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Joslyn’s application for supplemental
security income under Title XVI of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Ghanim v. Colvin, 763 F.3d 1154,
* 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).
1159 (9th Cir. 2014), and we reverse and remand for further proceedings.
I
The ALJ erred by not discussing treating physician Dr. Lang’s March 2013
treatment notes that indicated surgery was necessary to address worsening carpal
tunnel syndrome on Joslyn’s right hand. Marsh v. Colvin, 792 F.3d 1170, 1172
(9th Cir. 2015) (holding that an ALJ errs by ignoring the opinion of a treating
physician). Considering these treatment notes, a reasonable ALJ could have
assigned Joslyn a more restrictive residual functional capacity (“RFC”). See
Erickson v. Shalala, 9 F.3d 813, 818 (9th Cir. 1993) (“The ALJ must consider all
factors that might have a ‘significant impact on an individual’s ability to work.’”
(citation omitted)). Accordingly, we must reverse and remand. See Marsh v.
Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (“[A] reviewing court cannot consider
[an] error harmless unless it can confidently conclude that no reasonable ALJ,
when fully crediting the testimony, could have reached a different disability
determination.” (quoting Stout v. Comm’r, Soc. Sec. Admin, 454 F.3d 1050,
1055–56 (9th Cir. 2006)) (first brackets added)).
II
Joslyn’s remaining arguments fail. Substantial evidence supports the ALJ’s
decision to give “significant weight” to Dr. Lang’s January 2012 opinion that
Joslyn would be able to return to productivity. Dr. Lang is Joslyn’s treating
physician and therefore is best suited to opine on how Joslyn’s impairments impact
his ability to perform work-related activities. Garrison v. Colvin, 759 F.3d 995,
1012 (9th. Cir. 2014). Moreover, the ALJ noted that Dr. Lang’s opinion is
consistent with other objective findings and Joslyn’s own self-reports.
Substantial evidence supports the ALJ’s decision to give Dr. Staley’s
opinion “significant weight.” With one exception, Dr. Staley’s opinion is
consistent with the objective medical evidence, Dr. Lang’s opinion, and Joslyn’s
reported abilities. The ALJ does not credit this lone exception, namely Dr. Staley’s
conclusion that Joslyn lacked any manipulative limitations, as evidenced by the
inclusion of manipulative limitations in Joslyn’s RFC.
Substantial evidence also supports the ALJ’s conclusion that Joslyn lacks a
severe mental impairment. Dr. Wheeler diagnosed Joslyn with adjustment
disorder. However, he noted that “[d]ressing it up to the level of disorder is
somewhat of a stretch” and estimated the duration of Joslyn’s condition as zero
months. Accordingly, the ALJ concluded that Joslyn’s condition did not last the
necessary amount of time to qualify as a severe mental impairment.
Specific, clear, and convincing reasons support the ALJ’s conclusion that
Joslyn’s testimony was not entirely credible. Specifically, (1) the objective
medical evidence and (2) inconsistencies between Joslyn’s subjective complaints
and his activities of daily living undermine his credibility. Batson v. Comm’r of
Soc. Sec. Admin., 359 F.3d 1190, 1196–97 (9th Cir. 2004) (noting that medical
records inconsistent with a claimant’s allegations are a permissible reason to find
claimant not credible); Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012)
(noting that an ALJ may consider claimant’s activities when weighing credibility).
Finally, the vocational expert’s testimony reconciled any discrepancies
between Joslyn’s RFC and the descriptions in the Department of Labor’s
Dictionary of Occupational Titles of jobs that Joslyn could purportedly perform.
However, the ALJ’s legal error in failing to address Dr. Lang’s March 2013
treatment notes could affect Joslyn’s RFC, which could impact the ultimate
disability determination.
III
Given the ALJ’s failure to address the treating physician’s treatment notes
indicating that surgery was necessary, and the potential impact of that failure on
the RFC determination, we must reverse and remand for further proceedings
consistent with this decision.
REVERSED and REMANDED.