Anna Drews v. Commissioner Social Security A

FILED
NOT FOR PUBLICATION MAY 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNA DREWS, No. 10-35585
Plaintiff - Appellant, D.C. No. 6:09-cv-06115-HO
v.
MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted May 3, 2011**
Portland, Oregon
Before: KOZINSKI, Chief Judge, TASHIMA and IKUTA, Circuit Judges.
The ALJ gave specific, clear, and convincing reasons based on substantial
evidence for his adverse credibility determination, Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996): Drews could not identify an onset date for her severe
*
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).
headaches, Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008), and her
testimony was inconsistent, unsupported by objective medical evidence, and did
not identify a longitudinal history of treatment. See Tonapetyan v. Halter, 242
F.3d 1144, 1148 (9th Cir. 2001); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir.
1995) (per curiam). Any error in stating the duration of Drews’s use of Xanax and
Celexa, or in disregarding Drews’s alleged adverse side effects to prescription pain
medication, was harmless. See Carmickle v. Comm’r, 533 F.3d 1155, 1162–63
(9th Cir. 2008); see also Bray v. Comm’r, 554 F.3d 1219, 1227 (9th Cir. 2009).
The ALJ’s determination that Drews’s mental health issues were not severe
and that her headaches were not disabling was also supported by substantial
evidence. Drews failed to seek treatment or report the depression diagnosis to her
primary care physician, and there was insufficient medical evidence as to the
severity or frequency of Drews’s headaches. See Burch v. Barnhart, 400 F.3d 676,
681 (9th Cir. 2005).
The ALJ gave specific and legitimate reasons based on substantial evidence
to reject Dr. Perry’s depression diagnosis because Drews had not received
treatment for depression before Dr. Perry’s assessment, did not seek treatment after
the evaluation, and did not report it to her primary care physician. See Valentine v.
Comm’r, 574 F.3d 685, 692–93 (9th Cir. 2009). Similarly, the ALJ gave specific
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and legitimate reasons based on substantial evidence to reject Dr. Emonds’s
testimony, as it was based primarily on Drews’s subjective pain complaints (which
the ALJ found not to be credible) and was not supported by objective medical
findings. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
Finally, the ALJ provided germane reasons for disregarding the testimony of
Maryhelen Sams, namely that it referred to an irrelevant time period. Vincent v.
Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984). Insofar as the ALJ failed to
address the testimony of Daniel Ward, any error was harmless because his
testimony also did not refer to the relevant time period, was internally
contradictory, and was inconsistent with other evidence in the record. See id.;
Stout v. Comm’r, 454 F.3d 1050, 1054–55 (9th Cir. 2006).
AFFIRMED.
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