Chase Aldridge v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 14 2017
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

CHASE C. ALDRIDGE, No. 15-16964

Plaintiff-Appellant, D.C. No. CV-14-00755-PHX-SPL

v.
MEMORANDUM*
NANCY BERRYHILL, COMMISSIONER
OF SOCIAL SECURITY
ADMINISTRATION,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding

Submitted July 11, 2017**
San Francisco, California

Before: GRABER and FRIEDLAND, Circuit Judges, and MARSHALL,***
District Judge.

*
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).
***
The Honorable Consuelo B. Marshall, United States District Judge for
the Central District of California, sitting by designation.
 Plaintiff-Appellant Chase Aldridge (“Aldridge”) appeals from the district

court’s order and judgment affirming the Commissioner of Social Security

Administration’s denial of disability benefits under Title XVI of the Social

Security Act. We affirm.

We review the district court’s order affirming the administrative law judge’s

(“ALJ’s”) denial of benefits de novo, and reverse only if the ALJ’s decision was

based on legal error or not supported by substantial evidence in the record. Berry

v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). A harmless error cannot support

reversal of the ALJ’s decision. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.

2012).

1. The ALJ erred in not considering Listing 12.10 for Autistic Disorder

and other Pervasive Development Disorder, but the error was harmless because the

ALJ found Listing 12.02’s paragraph B criteria (which were identical to Listing

12.10’s paragraph B criteria)1—were not met. (See ER 21-22.) Aldridge also

failed to present medical findings establishing that his combined impairments met

the requirements for Listing 12.10. See Kennedy v. Colvin, 738 F.3d 1172, 1176

(9th Cir. 2013) (citing Sullivan v. Zebley, 493 U.S. 521, 531 (1990)).

2. The ALJ did not err in affording “minimal weight” to the opinion of

Aldridge’s treating physician Dr. Semino because (1) Dr. Semino did not consider

1
See 20 C.F.R. pt. 404, subpt. P, app. 1 (2012).

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or review his treatment notes, or Aldridge’s medical records, examinations, or

response to treatment; (2) the opinion was inconsistent with his own treatment

notes; and (3) the opinion rested on Aldridge’s subjective complaints rather than

on objective observations. See Ghanim v. Colvin, 763 F.3d 1154, 1161–62 (9th

Cir. 2014); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

3. The ALJ provided specific and legitimate reasons, supported by

substantial evidence in the record, for giving greater weight to the opinions of the

one-time consultative examiner and the state agency non-examining psychologists.

(See ER 26-27.) The consultative examiner’s opinion was consistent with Dr.

Semino’s treatment notes, Aldridge’s testimony, and written statements by

Aldridge and his mother, and was based on objective clinical testing. See Thomas,

278 F.3d at 957; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Unlike Dr.

Semino’s opinion, the opinions of the non-examining psychologists were based on

a review of Aldridge’s school and medical records. Moreover, the non-examining

psychologists’ opinions were consistent with the consultative examiner’s opinion

and Aldridge’s reported daily activities. See Thomas, 278 F.3d at 957.

4. The ALJ erred in finding that Aldridge’s testimony regarding the

severity of his symptoms was not credible based on his non-compliance with

prescribed medications, because evidence in the record demonstrates that non-

compliance resulted from Aldridge’s mental impairment. (See ER 241, 338.) See

3
Garrison v. Colvin, 759 F.3d 995, 1018 n.24 (9th Cir. 2014); Smolen v. Chater, 80

F.3d 1273, 1284 (9th Cir. 1996). This error, however, was harmless, because the

ALJ also found that the testimony was inconsistent with Aldridge’s reported daily

activities. See Burch v. Banhart, 400 F.3d 676, 680–81 (9th Cir. 2005); Fair v.

Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Morgan v. Comm’r of Soc. Sec.

Admin., 169 F.3d 595, 600 (9th Cir. 1999).

5. The ALJ provided germane reasons for giving the “Function Report”

(ER 307-314) submitted by Aldridge’s mother, and her testimony, only “some

weight.” The Function Report stated Aldridge was able to prepare simple meals,

shop for groceries, listen to music, talk on the phone, and care for himself, and

Aldridge’s mother was not aware of some of his self-reported activities. See Lewis

v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Bayliss v. Barnhart, 427 F.3d 1211,

1218 (9th Cir. 2005).

AFFIRMED.

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