Lisa McGee v. Michael Astrue

FILED
NOT FOR PUBLICATION MAR 03 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

LISA MCGEE, o/b/o DARRIN J. MCGEE No. 09-35253
(deceased),
D.C. No. 3:08-cv-05237-RBL
Plaintiff - Appellant,

v. MEMORANDUM *

MICHAEL J. ASTRUE, Commissioner of
Social Security,

Defendant - Appellee.

Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding

Submitted February 5, 2010 **
Seattle, Washington

Before: ALARCÓN, W. FLETCHER, and RAWLINSON, Circuit Judges.

Appellant Lisa McGee (Ms. McGee), on behalf of her deceased spouse

Darrin McGee (McGee), challenges the district court’s judgment upholding

*
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).
Appellee Commissioner of Social Security’s (Commissioner) determination that

McGee was not disabled.

1. Any error made by the Administrative Law Judge (ALJ) in omitting

chronic pain, chronic fatigue, and anemia from the list of McGee’s impairments

was harmless because the ALJ considered those limitations when determining

McGee’s Residual Functional Capacity (RFC). See Lewis v. Astrue, 498 F.3d 909,

911 (9th Cir. 2007), as amended. The record establishes that the ALJ reviewed all

the evidence before him in considering McGee’s functional limitations.

2. The ALJ did not err in determining that McGee’s kidney and cardiac

conditions were non-severe, or in its consideration of any limitations caused by

these impairments. The ALJ considered all relevant evidence regarding McGee’s

kidney and cardiac conditions, and “the medical record does not establish any

work-related limitations as a result of [these] impairments.” Carmickle v. Commr,

Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (citation omitted).

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3. The ALJ provided clear and convincing reasons for discounting McGee’s

subjective testimony regarding his symptoms and limitations. See Morgan v.

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).

4. Contrary to McGee’s assertion, the ALJ did not improperly weigh the

medical evidence because “substantial evidence supports the finding that [McGee],

although physically [and mentally] impaired, [was] not disabled . . .” Matthews v.

Shalala, 10 F.3d 678, 680 (9th Cir. 1993). The ALJ extensively discussed and

considered the medical evaluations in the record. He either considered the medical

evaluations as evidence establishing McGee’s impairments, or discussed how these

evaluations weighed against a disability finding. Importantly, none of the

physicians who examined McGee “expressed the opinion that [McGee] was totally

disabled” or that he could not return to work. Id. The ALJ also properly

discounted Dr. Ramsthel’s opinion by providing “specific and legitimate reasons

that are supported by substantial evidence in the record,” namely that Dr.

Ramsthel’s opinion was founded on McGee’s subjective complaints. Lester v.

Chater, 81 F.3d 821, 830-31 (9th Cir. 1996), as amended (citation omitted).

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5. The ALJ did not err in discounting Mr. Spafford’s evaluation. As a

licensed clinical social worker, Mr. Spafford is not considered an “acceptable

medical source.” See 20 C.F.R. § 404.1513(a); 20 C.F.R. § 416.913(a). Therefore,

the ALJ was entitled to discount the weight accorded to Mr. Spafford’s opinion.

Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). The ALJ concluded that

McGee’s level of activity was inconsistent with Mr. Spafford’s opinion. This

alone was an appropriate basis for discounting Mr. Spafford’s opinion. See Rollins

v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).

6. The ALJ did not improperly assess the lay witness evidence. He

considered all the lay testimony, and weighed it in light of the other evidence in the

record.

7. The ALJ did not err in determining McGee’s RFC. He “took into

account those limitations for which there was record support that did not depend on

[McGee’s] subjective complaints.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th

Cir. 2005). The ALJ’s RFC determination was supported by substantial evidence

in the record. See id.

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8. The ALJ did not pose an improper hypothetical to the vocational expert.

The hypothetical “only include[d] those limitations supported by substantial

evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006)

(citation omitted).

AFFIRMED.