FILED
NOT FOR PUBLICATION
SEP 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC WILLENS, No. 15-16891
Plaintiff-Appellant, D.C. No. 2:14-cv-01339-DLR
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted September 21, 2017**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Eric Willens appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Willens’s applications 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. Willens contends that the administrative law judge (“ALJ”)
erred in finding that Willens was not fully credible, and in rejecting lay witness
testimony from his father, Sherwin Willens. We have jurisdiction under 28 U.S.C.
§ 1291. We review the district court’s order de novo, Molina v. Astrue, 674 F.3d
1104, 1110 (9th Cir. 2012), and we affirm.
The ALJ provided specific, clear, and convincing reasons for rejecting
Willens’s testimony. First, the ALJ reasonably found that Willens’s daily activities
were not as limited as one would expect given his allegations of disabling
symptoms and limitations. For instance, although Willens testified that he was
totally disabled, the ALJ noted that Willens indicated on his Function Reports that
he was able to groom and bathe himself, prepared his own meals, did laundry,
drove, shopped for groceries, socialized with friends, managed his finances, and
occasionally did housework. In addition, the ALJ correctly noted that since his
onset date Willens had traveled to Mexico where he walked quite a bit, and this
was inconsistent with his testimony of disabling limitations. See Tommasetti v.
Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (holding that the ALJ properly
discounted a claimant’s testimony about the extent of his pain and limitations
based on his ability to travel).
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Second, the ALJ reasonably found that Willens’s symptoms from his
diabetes and coronary artery disease were well-controlled with medications, which
belied his testimony that the symptoms were disabling. For example, in a May
2011 examination, treating physician Dr. George Sibley found that Willens was
doing “extremely well” with his diabetes and coronary heat disease, that Willens
should continue with his medication, and that his diabetes was well-controlled.
Also, the ALJ properly noted that although Willens testified that the side effects
from nitroglycerin, which treated his heart condition, gave him disabling recurring
headaches and drowsiness, the treating notes and records lacked evidence
supporting those complaints. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d
1001, 1006 (9th Cir. 2006) (holding that impairments that can be controlled
effectively with medications are not disabling).
The ALJ reasonably cited a third reason for an adverse credibility
determination: the objective medical evidence was inconsistent with Willens’s
subjective allegations of limitation. For example, although Willens testified that he
experienced regularly-recurring chest pains, Dr. Sibley stated in a July 2012 report
that Willens had been asymptomatic since April 2012. Second, although Willens
testified that his neck pain was disabling, Dr. Sibley reported on February 20, 2012
that Willens had undergone cervical fusion and had improvement in his neck pain.
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Moreover, in the medical evidence before the ALJ, no physician made an
assessment that Willens was disabled. See Burch v. Barnhart, 400 F.3d 676, 681
(9th Cir. 2005) (holding that an ALJ may consider a lack of supporting medical
evidence, but the factor cannot form the only basis for discounting subjective
symptom testimony).
The ALJ did not err in giving little weight to the third party function report
of Willens’s father. Mr. Willens’s lay witness statement was similar to the
claimant’s testimony. The ALJ properly concluded that Mr. Willens’s Function
Report was consistent with his son’s subjective complaints, but was similarly
inconsistent with the objective medical evidence. Because the ALJ properly
discounted the claimant’s similar testimony, the ALJ properly gave a germane
reason for rejecting Mr. Willens’s testimony. See Valentine v. Comm’r Soc. Sec.
Admin., 574 F.3d 685, 694 (9th Cir. 2009).
We do not consider Willens’s argument concerning the great weight the ALJ
assigned to the non-examining physicians’ opinions, which Willens did not raise in
his opening brief, and only raised for the first time in his reply brief. See Eberle v.
Anaheim, 901 F.2d 814, 818 (9th Cir. 1990).
Substantial evidence supports the ALJ’s determination that Willens was not
disabled within the meaning of the Social Security Act.
AFFIRMED.
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