Kenneth Lehman v. Andrew Saul

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH J. LEHMAN, No. 19-35208
Plaintiff-Appellant, D.C. No. C17-5962-JPD
v. MEMORANDUM*
ANDREW SAUL,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue, Magistrate Judge, Presiding
Submitted March 4, 2020**
Seattle, Washington
Before: IKUTA, R. NELSON, and HUNSAKER, Circuit Judges.
Kenneth J. Lehman appeals the denial of disability benefits and social security
income under the Social Security Act, 42 U.S.C. §§ 401–434, 1381–1383f. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
*
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).
Lehman claims the Administrative Law Judge (“ALJ”) erred by discounting
his self-reported symptoms. Upon finding malingering, the ALJ is not required to
give specific, clear, and convincing reasons for discounting a claimant’s testimony.
Benton v. Barnhart, 331 F.3d 1030, 1040–41 (9th Cir. 2003). Here, the ALJ found
that Lehman was malingering and the district court affirmed. This finding is
supported by substantial evidence in the record, including opinions from two
reviewing psychologists and a Cooperative Disability Investigations Unit
investigation report. The ALJ also observed Lehman “intentionally embellishing his
symptoms during the hearing” and concluded he had done the same “during his
mental health treatment.” Therefore, we find no error in the ALJ’s treatment of
Lehman’s subjective testimony.
Lehman also claims the ALJ erred by discrediting his mother’s testimony.
When an ALJ properly discounts the claimant’s testimony and lay witness testimony
is substantively similar, the ALJ may use similar reasons to reject the lay witness
testimony. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).
Because Lehman’s mother relied on Lehman’s subjective self-reports, the ALJ did
not err in discrediting her testimony.
Next, Lehman contends the ALJ erred by crediting two reviewing
psychologists over an examining physician and an examining psychologist.
Opinions from examining sources that conflict with other medical opinions in the
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record can be given lesser weight if there are “specific and legitimate reasons
supported by substantial evidence in the record for doing so.” Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1995) (quotation marks and citation omitted). Here, the
ALJ’s treatment of the medical record is supported by substantial evidence. The
examining providers relied heavily on Lehman’s self-reported symptoms and did not
review the investigation report. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,
1223 (9th Cir. 2010) (treating provider properly discredited where opinion based
“almost entirely on the claimant’s self-reporting”). The reviewing psychologists,
however, did consider the investigation report and noted that Lehman provided
incomplete and incorrect information to his medical providers to obtain disability
benefits. Indeed, as noted above, both reviewing psychologists found Lehman was
malingering.
Finally, Lehman argues additional evidence that he submitted to the Appeals
Council—medical opinions based largely on his subjective self-reporting—
undermines the ALJ’s findings. We disagree. This new evidence is cumulative and,
in light of the finding that Lehman is malingering, does not demonstrate the ALJ’s
decision is unsupported by substantial evidence.
AFFIRMED.
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