FILED
NOT FOR PUBLICATION
JUN 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA LEAZENBY, No. 14-16002
Plaintiff - Appellant, D.C. No. 4:13-cv-00132-DTF
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
D. Thomas Ferraro, Magistrate Judge, Presiding
Argued and Submitted May 11, 2016
San Francisco, California
Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.
Donna June Leazenby sought judicial review of the Social Security
Administration’s denial of her application for disability insurance benefits. The
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
district court granted summary judgment for the government, and Leazenby
appealed. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
1. Leazenby did not carry her high burden of showing the Administrative
Law Judge (“ALJ”) was biased against her. See Verduzco v. Apfel, 188 F.3d 1087,
1089 (9th Cir. 1999) (“ALJs and other similar quasi-judicial administrative officers
are presumed to be unbiased.”). The ALJ’s decision to hold a second hearing and
elicit testimony from a second vocational expert does not show that he was biased
against Leazenby. See Arant-Livingston v. Barnhart, 148 F. App’x 630, 631–32
(9th Cir. 2005) (rejecting plaintiff’s argument that the ALJ went “vocational
‘expert shopping,’” and therefore violated plaintiff’s due process right to a fair
hearing).
2. The ALJ provided “‘specific, clear and convincing reasons for’ rejecting
[Leazenby’s] testimony regarding the severity of [her] symptoms.” Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Smolen
v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). Leazenby testified that her anxiety
and post-traumatic stress disorder made it impossible for her to work. The ALJ
discounted this testimony in part because “[t]he claimant’s medical records do not
support the severity and frequency of the claimant’s alleged symptoms,” and
“[t]the claimant has described daily activities, which are not limited to the extent
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one would expect, given the complaints of disabling symptoms and limitations.”
Both reasons qualify under our case law as legitimate reasons for rejecting a
claimant’s subjective testimony, see Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir.
2010); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir.
2008), and the record supported the ALJ’s analysis.
3. The ALJ properly weighed medical and lay opinion evidence before
concluding that Leazenby had the residual functional capacity (“RFC”) to perform
medium work with several mental limitations. The ALJ incorporated into the RFC
many of the functional limitations identified by treating physician Dr. Nicholas.
The ALJ was entitled to reject Dr. Nicholas’s opinion that Leazenby “is unable to
fulfill employment obligations at this time,” because that opinion was inconsistent
with the opinions of several other treating and examining sources who believed
Leazenby could work in a quiet, independent setting. See Burrell v. Colvin, 775
F.3d 1133, 1140 (9th Cir. 2014) (ALJ may reject a treating physician’s opinion that
is “conclusory, brief, and unsupported by the record as a whole or by objective
medical findings” (emphasis omitted)). The ALJ’s RFC assessment limited
Leazenby “to jobs that allow only occasional interaction with her supervisors and
co-workers.” This limitation fairly encompassed examining physician Dr. Ertl’s
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observation that Leazenby “would probably have difficulty if a supervisor was a
male.”
The ALJ gave “some weight” to the opinions of licensed clinical social
worker Margaret Pofahl and licensed professional counselor Jeff Harvey,
incorporating many of their observations about Leazenby into his RFC assessment.
The ALJ’s treatment of these opinions was consistent with our case law and Social
Security Administration guidelines. See SSR 06-3p, 2006 WL 2329939, at *6
(Aug. 9, 2006). The ALJ was likewise entitled to partially discount the opinions of
Leazenby’s husband, brother, and former co-worker regarding Leazenby’s ability
to work because those opinions were inconsistent with the balance of the medical
opinion evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)
(“Inconsistency with medical evidence” is a germane reason for discrediting the
testimony of lay witness opinions.).
4. The Social Security Administration Appeals Council did not err when it
declined to incorporate Dr. Fleming’s report into the administrative record because
the report did not “relate[] to the period on or before the date of the administrative
law judge hearing decision.” 20 C.F.R. § 404.970(b); cf. Taylor v. Comm’r of Soc.
Sec. Admin., 659 F.3d 1228, 1233 (9th Cir. 2011).
AFFIRMED.
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