Mason v. Commissioner of Social Security

FILED
NOT FOR PUBLICATION MAY 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL MASON, No. 06-35918
Plaintiff - Appellant, D.C. No. CV-05-00200-PP
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Paul J. Papak, Magistrate Judge, Presiding
Submitted May 3, 2010 **
Portland, Oregon
Before: KLEINFELD, BEA and IKUTA, Circuit Judges.
Michael Mason appeals from the district court’s judgment, which affirmed
the ALJ’s finding that he is not disabled. We affirm.
*
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).
We review de novo a district court’s order upholding the Commissioner’s
denial of benefits. Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001). We
must affirm the decision of the Commissioner if it was supported by substantial
evidence in the record and applied the correct legal standards. Reddick v. Chater,
157 F.3d 715, 720 (9th Cir. 1998). Substantial evidence is more than a scintilla,
but less than a preponderance. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
1998).
Substantial evidence in the record supports the ALJ’s determination that
Mason’s testimony was not entirely credible. The ALJ gave specific, clear and
convincing reasons for rejecting Mason’s testimony regarding the severity of his
symptoms, including the medical evidence in the record, Mason’s failure to seek
treatment for his complaints despite informing one of his physicians that he had
access to medical treatment and Mason’s gross under-reporting of his work history
(in both the amount earned and nature of work performed) at the prior hearing
before the ALJ. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). For
example, the ALJ noted that since the prior hearing on Mason’s disability claim,
Mason had asserted a new claim for disability benefits related to an on-the-job
injury he sustained from lifting a ninety-pound object. That injury was sustained
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during the benefits period presently under review. Mason’s work-related lifting of
ninety pounds is inconsistent with his claim that during the same period he was
unable to lift a bag of groceries.
Likewise, the ALJ pointed to substantial evidence in the record to support
his determination that the lay witnesses, Trevol Mason and Rhonda Collins, were
not entirely credible. The ALJ specifically identified germane reasons for rejecting
their testimony with respect to Mason’s ability to work, such as the inconsistencies
between their testimony regarding the severity of Mason’s symptoms and Mason’s
activities — his failure to seek treatment and his actual work history.
Nor did the ALJ err in evaluating Mason’s residual functional capacity. The
ALJ discussed the relevant medical evidence and testimony with respect to
Mason’s claimed impairments and limitations, and relied on the residual functional
capacity findings of Dr. Johnson and Dr. LeBray to reach his conclusions.
Although the ALJ failed to include all of Mason’s mental limitations in Mason’s
residual functional capacity assessment, any error was harmless because substantial
evidence supported the ALJ’s conclusion that any mental limitations did not impair
Mason’s capacity to perform his past relevant work. Batson v. Comm’r of Social
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Security Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). The ALJ’s conclusion that
Mason was capable of performing his past relevant work was supported by
substantial evidence. The ALJ is not required, as Mason contends, to engage in a
function-by-function analysis under SSR 96-8p. SSR 96-8p requires only that the
ALJ discuss how evidence supports the residual function capacity assessment and
explain how the ALJ resolved material inconsistencies or ambiguities in evidence,
as the ALJ did here. We similarly reject Mason's contention that the ALJ erred by
relying on a medical source opinion from a non-treating physician. Under the
circumstances of this case, where uncontroverted evidence indicated Mason had
not sought any treatment since 1993, reliance on more recent non-treating
physicians' opinions was reasonable.
AFFIRMED.
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