Rachel Stout v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

RACHEL EILEEN STOUT, No. 15-35880

Plaintiff-Appellant, D.C. No. 3:14-cv-01697-JO

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

Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding

Submitted August 23, 2017**

Before: D.W. NELSON, TROTT, and SILVERMAN, Circuit Judges.

Rachel Stout appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of her 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. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo, Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012), and we affirm.

The administrative law judge (“ALJ”) provided specific, clear and

convincing reasons for rejecting Stout’s testimony regarding debilitating back pain

by explaining that this testimony was contradicted by medical treatment notes,

including records indicating that Stout’s pain was fairly well controlled with

medications, and by evidence of Stout’s daily activities. See Treichler v. Comm’r

of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (explaining requirements

for ALJ’s assessment of claimant’s testimony). Substantial evidence supports the

ALJ’s finding that Stout’s back pain was fairly well controlled with medications.

See Hill, 698 F.3d at 1158 (holding that Commissioner’s decision will be upheld if

it is supported by substantial evidence). Additional substantial evidence, including

notes stating that Stout had a limited range of motion but normal gait, reflexes, and

strength, further supports the ALJ’s finding that the treatment notes in the record

were inconsistent with the claimant’s testimony. See Carmickle v. Comm’r, Soc.

Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (holding that ALJ may rely on

contradiction between testimony and medical record). The ALJ also properly

relied on evidence of Stout’s daily activities. See Molina v. Astrue, 674 F.3d 1104,

1113 (9th Cir. 2012) (holding that, in reaching a credibility determination, an ALJ

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may weigh inconsistencies between the claimant’s testimony and her daily

activities).

The ALJ provided germane reasons for discounting in part the statement of a

lay witness by explaining that the statement was inconsistent with the medical

evidence and Stout’s daily activities. See id. at 1114 (holding that in order to

discount competent lay witness testimony, the ALJ must give reasons that are

germane to each witness); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir.

2005) (holding that inconsistency with medical evidence is a germane reason for

discrediting the testimony of lay witnesses). The ALJ also properly relied on the

witness’s close friendship with Stout. See Greger v. Barnhart, 464 F.3d 968, 972

(9th Cir. 2006) (holding that ALJ properly discounted lay testimony that was

possibly influenced by the witness’s desire to help the claimant).

The ALJ fulfilled her duty to develop the record by obtaining more recent

medical evidence than the evidence submitted by Stout and by keeping the record

open after the hearing. See Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930-31

(9th Cir. 2014) (holding that the ALJ has a duty to fully and fairly develop the

record and explore for all the relevant facts); Tonapetyan v. Halter, 242 F.3d 1144,

1150 (9th Cir. 2001) (explaining ways in which the ALJ may discharge her duty to

develop the record).

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 At Step Five of the sequential analysis, the ALJ correctly concluded that

under the Medical-Vocational Guidelines, or grids, Stout must be considered not

disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, 202.14 & 202.15; Lounsburry v.

Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006) (explaining that when a claimant

has both exertional and nonexertional impairments, the ALJ must first determine

whether, under the grids, the claimant’s exertional impairments by themselves

warrant a finding of disability). The ALJ then correctly proceeded to examine the

effects of Stout’s nonexertional impairments, with the assistance of a vocational

expert. See id. at 1116; Social Security Ruling 83-12 (providing that when a

claimant’s exertional level falls between two grids that direct opposite conclusions

regarding disability, the assistance of a vocational expert “is advisable”). The ALJ

properly relied on the vocational expert’s testimony in finding that Stout could

perform two light, unskilled jobs. See Zavalin v. Colvin, 778 F.3d 842, 846 (9th

Cir. 2015).

AFFIRMED.

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