Pamela Maestas v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 29 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

PAMELA A. MAESTAS, No. 14-35956

Plaintiff-Appellant, D.C. No. 3:13-cv-05878-KLS

v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Washington
Karen L. Strombom, Magistrate Judge, Presiding

Submitted June 27, 2017**

Before: NELSON, TROTT, and OWENS, Circuit Judges.

Pamela Maestas appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of Maestas’s application for

supplemental security income under Title XVI of the Social Security Act. We

*
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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ghanim v. Colvin,

736 F.3d 1154, 1159 (9th Cir. 2014), and we affirm.

The ALJ identified specific, clear and convincing reasons that are supported

by substantial evidence for discounting Maestas’s credibility regarding the

debilitating effects of her symptoms: (1) there was a lack of supporting objective

medical evidence for Maestas’s subjective complaints; and (2) there were

inconsistencies between Maestas’s subjective complaints and her activities of daily

living. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (finding that lack

of medical evidence is a factor that the ALJ can consider in credibility analysis);

Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (listing among proper

considerations for credibility assessment an engagement in activities of daily living

that are inconsistent with the alleged symptoms).

The ALJ gave the following specific and legitimate reasons for assigning

only “little weight” to Dr. Wentworth’s May 2010 opinion regarding Maestas’s

functional limitations: (1) treatment notes and objective findings were within

normal limits; and (2) Dr. Wentworth’s opinion was not supported by subsequent

assessments. The ALJ had specific and legitimate reasons for assigning only “little

weight” to Dr. Wentworth’s November 2010 opinion: (1) there was no record

support for Dr. Wentworth’s restricted limitations on Maestas’s lifting, sitting and

standing when in fact the limitations on lifting are inconsistent with Dr.

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Wentworth’s November 2011 assessment that Maestas could lift a maximum of 20

pounds and lift 10 pounds frequently; and (2) this opinion was inconsistent with

Maestas’s physical therapy reports showing overall improvement, decreased pain

and symptoms as well as treatment reports indicating minimal pain or tenderness.

The ALJ gave the following specific and legitimate reasons for assigning Dr.

Wentworth’s November 2011 opinion only some weight: Maestas’s activities and

clinical findings did not support this opinion. Lester v. Chater, 81 F.3d 821, 830

(9th Cir. 1995) (holding that the ALJ must make findings setting forth specific and

legitimate reasons that are supported by substantial evidence in order to reject the

contradicted opinion of a treating physician).

The Commissioner’s determination at Step Two in the sequential evaluation

process is supported by substantial evidence. Meanel v. Apfel, 172 F.3d 1111, 1114

(9th Cir. 1999). The ALJ properly relied on the absence of record medical evidence

sufficient to support a determination that Maestas’s depression, anxiety disorder,

impulse control disorder, obsessive-compulsive disorder, and post-traumatic stress

disorder, considered singly and in combination, did not cause more than minimal

limitation in Maestas’s ability to perform basic mental work activities. See Webb

v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (“[W]e must determine whether the

ALJ had substantial evidence to find that the medical evidence clearly established

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that [the claimant] did not have a medically severe impairment or combination of

impairments.”).

The ALJ included in the residual functional capacity (“RFC”) assessment all

the limitations that were supported by, and consistent with, substantial record

evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Because the

functional limitations identified by the ALJ in the RFC for light work with

limitations, and in the alternative for sedentary work, were supported by the

medical evidence that the ALJ credited, there was no harmful error at Steps Four or

Five of the sequential evaluation process. See Magallanes v. Bowen, 881 F.2d 747,

756-57 (9th Cir. 1989) (explaining that the limitations included in the hypothetical

propounded to a vocational expert need only be supported by substantial record

evidence).

The new evidence that the Appeals Council considered does not change that

fact that substantial evidence supports the ALJ’s decision. Brewes v. Comm’r of

Soc. Sec. Admin., 682 F.3d 1157, 1159-60, 1162-66 (9th Cir. 2012) (“[W]hen a

claimant submits evidence for the first time to the Appeals Council, which

considers that evidence in denying review of the ALJ’s decision, the new evidence

is part of the administrative record, which the district court must consider in

determining whether the Commissioner’s decision is supported by substantial

evidence.”)

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AFFIRMED.

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