Frederick Rebensdorf v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDERICK LARRY REBENSDORF, No. 18-35305
Plaintiff-Appellant, D.C. No. 3:16-cv-01619-SB
v.
MEMORANDUM*
NANCY A. BERRYHILL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted May 13, 2019**
Portland, Oregon
Before: N.R. SMITH, WATFORD, and R. NELSON, Circuit Judges.
Frederick Rebensdorf appeals the district court’s order affirming the
Commissioner of Social Security’s denial of his application for disability insurance
benefits under Title II of the Social Security Act. We review the district court’s
*
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).
order de novo and reverse only if the Administrative Law Judge’s (“ALJ”)
“decision was not supported by substantial evidence in the record as a whole or if
the ALJ applied the wrong legal standard.” Molina v. Astrue, 674 F.3d 1104, 1110
(9th Cir. 2012). “[W]e may not reverse an ALJ’s decision on account of an error
that is harmless.” Id. at 1111. We affirm.
First, the ALJ did not err in discounting Rebensdorf’s testimony regarding
the severity of his impairments. Testimony from multiple sources indicated that
Rebensdorf’s pain symptoms were inconsistent with objective findings and that
Rebensdorf exaggerated his pain. See Batson v. Comm’r of Soc. Sec. Admin., 359
F.3d 1190, 1196 (9th Cir. 2004); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th
Cir. 1997) as amended on reh’g (Sept. 17, 1997) (explaining that an ALJ can take
into consideration “testimony from physicians and third parties concerning the
nature, severity, and effect of the symptoms of which [the claimant] complains”).
These were specific, clear, and convincing reasons for finding Rebensdorf’s
testimony only partially credible. See Morgan v. Comm’r of Soc. Sec. Admin., 169
F.3d 595, 599–600 (9th Cir. 1999). “When evidence reasonably supports either
confirming or reversing the ALJ’s decision, we may not substitute our judgment
for that of the ALJ.” Batson, 359 F.3d at 1196.
Second, the ALJ did not err in discounting the contradicted medical opinion
evidence of Rebensdorf’s examining physician, Dr. Ogisu, and treating physician,
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Dr. Gillingham. The ALJ provided specific and legitimate reasons for assigning
Dr. Ogisu’s contradicted opinion “little weight.” See Lester v. Chater, 81 F.3d
821, 830–31 (9th Cir. 1995) as amended (April 9, 1996). As Dr. Ogisu himself
noted, his findings pertained to Rebensdorf’s present, rather than long term,
impairment, as an injury had exacerbated his condition, but was expected to
improve in one to two weeks, far less than the requisite “continuous period of not
less than 12 months.” See 42 U.S.C. § 1382c(a)(3)(A). The ALJ was not required
to recontact Dr. Ogisu because the medical record was sufficient to make a
disability determination. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.
2005).
The ALJ similarly provided the following specific and legitimate reasons for
discounting treating physician Dr. Gillingham’s opinion: 1) he is a family
practitioner and his opinion did not square with Dr. Brahms’s, who is an
orthopedic specialist; 2) his opinion was inconsistent with imaging reports and
examination results and was unsupported by any EMG results; and 3) his opinion
did not properly account for Rebensdorf’s inconsistencies and exaggerations. See
Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001).
Third, for many of the same reasons, the ALJ did not commit reversible
error in discounting the testimony of lay witness Marcella Kroger, Rebensdorf’s
wife, regarding Rebensdorf’s limitations and capabilities. Kroger’s testimony as to
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Rebensdorf’s pain symptoms was inconsistent with the medical evidence,
including imaging reports and examination results that, as interpreted by Dr.
Brahms, showed only mild impairment. Lewis v. Apfel, 236 F.3d 503, 511 (9th
Cir. 2001). Although Kroger’s interest in the case, as a family member, was not a
germane reason to discount her testimony, the ALJ’s error as to this additional
reason was harmless. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685,
694 (9th Cir. 2009).
Fourth, the ALJ did not err in assigning the Veterans Administration’s
(“VA”) 100% disability rating “little weight.” “[A]n ALJ must ordinarily give
great weight to a VA determination of disability,” but an “ALJ may give less
weight to a VA disability rating if he gives persuasive, specific, valid reasons for
doing so that are supported by the record.” McCartey v. Massanari, 298 F.3d
1072, 1076 (9th Cir. 2002).
The ALJ found that the VA’s determination was (1) incomplete, because the
VA’s determination did not reflect imaging of the claimant’s head or spine; (2)
inconsistent with examination results showing no motor deficits; and (3)
inconsistent with the claimant’s only routine and conservative mental health
treatment as well as notes indicating the claimant’s mental health symptoms were
at least somewhat controlled with medication. These reasons undermine the VA’s
disability rating. See Valentine, 574 F.3d at 695.
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Finally, the ALJ did not err in relying on the testimony of a vocational
expert (“VE”) at step five of the sequential analysis. The ALJ properly asked the
VE a hypothetical that captured those functional limitations that the ALJ found
supported by substantial evidence. See Roberts v. Shalala, 66 F.3d 179, 184 (9th
Cir. 1995). We reject Rebensdorf’s argument that the ALJ failed to reconcile a
conflict between the Dictionary of Occupational Titles (“DOT”) and the VE’s
testimony, because, contrary to Rebensdorf’s argument, not all jobs classified as
“light work” require six hours of standing or walking per day. SSR 00–4P, 2000
WL 1898704, at *3 (“The DOT lists maximum requirements of occupations as
generally performed, not the range of requirements of a particular job as it is
performed in specific settings. A [vocational expert] . . . may be able to provide
more specific information about jobs or occupations than the DOT.”). The VE
thus permissibly reduced the number of jobs available to an individual with the
limitations outlined in the ALJ’s hypothetical, and the ALJ did not err in relying on
those reduced numbers. Further, for the reasons outlined above, the ALJ did not
err in omitting additional limitations. See Stubbs-Danielson v. Astrue, 539 F.3d
1169, 1174–76 (9th Cir. 2008).
AFFIRMED.
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