NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT BYRON BRAMBLE, No. 14-35935
Plaintiff-Appellant, D.C. No. 6:13-cv-01006-AA
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted ____**
Before: NELSON, TROTT, and OWENS, Circuit Judges.
Scott Bramble appeals the district court’s decision reversing the
Commissioner of Social Security’s denial of Bramble’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
*
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).
Social Security Act. After the Commissioner conceded that the administrative law
judge (ALJ) erred by failing to make adequate factual findings regarding
Bramble’s ability to return to his past work, the district court remanded to the ALJ
for further proceedings. On appeal, Bramble contends that the ALJ made additional
errors and the district court abused its discretion by not remanding for an
immediate award of benefits. We have jurisdiction under 28 U.S.C. § 1291. We
review the district court’s decision to remand for further proceedings for abuse of
discretion, Harman v. Apfel, 211 F.3d 1172, 1173 (9th Cir. 2000), and we affirm.
In addition to the error at step four that the Commissioner conceded, the ALJ
erred at step two by failing to discuss whether Attention Deficit Hyperactivity
Disorder (ADHD) was a severe mental impairment. See Celaya v. Halter, 332 F.3d
1177, 1182 (9th Cir. 2003) (holding that the ALJ erred in failing to consider an
impairment at step two when the record contained evidence of symptoms related to
the impairment). This court cannot adequately review the ALJ’s residual functional
capacity (RFC) determination because the ALJ did not explain whether he
considered any evidence of mental limitations resulting from ADHD or other
mental impairments. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,
1102-03 (9th Cir. 2014) (explaining that the ALJ’s reasoning must be sufficiently
clear for this court to review).
The ALJ provided several specific and legitimate reasons supported by
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substantial evidence for rejecting Dr. Vanderburgh’s medical opinion: (1) internal
inconsistencies in the opinion, (2) lack of clinical findings to support the opinion,
and (3) inconsistencies with Bramble’s own testimony. See Bayliss v. Barnhart,
427 F.3d 1211, 1216-17 (9th Cir. 2005) (listing lack of clinical findings and
inconsistencies in physician’s opinions among proper considerations for ALJ in
rejecting a medical opinion); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.
1989) (concluding that the ALJ properly relied on inconsistency with claimant’s
testimony to reject medical opinion).
The ALJ provided several clear and convincing reasons supported by
substantial evidence to find Bramble’s testimony less than fully credible regarding
his limitations from chronic headaches and pain: (1) inconsistences with Bramble’s
work history, (2) inconsistencies with Bramble’s success in college courses, (3)
inconsistencies with medical evidence of improvement with treatment, and (4) lack
of treatment and objective medical findings. See Tommasetti v. Astrue, 533 F.3d
1035, 1041 (9th Cir. 2008) (concluding that ALJ properly relied on inconsistency
with other medical evidence to reject opinion of treating physician); Bayliss, 427
F.3d at 1216 (explaining that ability to complete education undermines testimony
regarding severity of impairments); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.
2005) (including lack of medical evidence as one factor ALJ can rely on in
discrediting claimant testimony); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.
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2001) (explaining that ALJ properly rejected claimant testimony when past work
was inconsistent with alleged impairments). Any error in relying on additional
reasons was harmless because the ALJ provided several clear and convincing
reasons supported by substantial evidence to reject Bramble’s testimony. See
Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004).
The ALJ provided germane reasons for rejecting the lay testimony of Addi
Flanigan based on inconsistencies with the medical record and Bramble’s daily
activities. See Bayliss, 427 F.3d at 1218.
The threshold inquiry of the credit-as-true rule is met here because the ALJ
made legal errors by failing to consider whether Bramble’s ADHD was a severe
mental impairment at step two and failing to make adequate factual findings at step
four. See Dominguez v. Colvin, 808 F.3d 403, 408 (9th Cir. 2015). However, the
district court did not abuse its discretion in remanding for further proceedings
because the record is not fully developed and there are outstanding issues
concerning whether Bramble had a severe mental impairment, whether Bramble
can return to his past work, and whether Bramble can perform any additional jobs
in the national economy. See Dominguez, 808 F.3d at 408-09 (remanding for
further proceedings despite ALJ legal error in discrediting evidence because
outstanding issues remained to be resolved prior to a determination of disability);
Treichler, 775 F.3d at 1105.
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AFFIRMED.
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