FILED
NOT FOR PUBLICATION
NOV 27 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIJAH SIMS, Jr., No. 15-35424
Plaintiff-Appellant, D.C. No. 3:11-cv-00916-MA
v.
MEMORANDUM*
NANCY A. BERRYHILL,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Submitted November 2, 2017**
San Francisco, California
Before: THOMAS, Chief Circuit Judge, and TROTT and SILVERMAN, Circuit
Judges.
Elijah Sims, Jr. appeals the district court’s order affirming the Social
Security Administration’s denial of his applications for disability benefits. Sims
alleged disability due to chronic pain in his back and neck. We have jurisdiction
*
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).
pursuant to 28 U.S.C. § 1291. We review the district court’s order de novo and
may reverse the agency’s denial of benefits only if the ALJ’s decision is not
supported by substantial evidence or contains legal error. Garrison v. Colvin, 759
F.3d 995, 1009-10 (9th Cir. 2014). We affirm.
Sims argues that the ALJ implicitly rejected the opinion of his treating
orthopedic surgeon, Dr. Brett, by finding that Sims could perform medium work
with some additional limitations. However, the ALJ reasonably adopted the
treating specialist’s opinion and incorporated all of the limitations enumerated by
Dr. Brett into the residual functional capacity assessment.
Sims also argues that the ALJ erred by adopting the opinion of Dr. Brett,
instead of the 2009 opinion of Dr. Denker and the opinions of Dr. Lee. The ALJ
provided specific and legitimate reasons supported by substantial evidence for
rejecting the opinions of treating providers Drs. Denker and Lee. Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Dr. Denker’s 2009 opinion was
inconsistent with his 2005 treatment note, which indicated that Sims could return
to work with modifications to his work space, and his 2010 note that the imaging
reports showed little change over the years and did not support Sims’s complaints
of pain. Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (“A conflict
between treatment notes and a treating provider’s opinions may constitute an
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adequate reason to discredit the opinions of a treating physician or another treating
provider.”).
The ALJ also gave specific and legitimate reasons supported by substantial
evidence for giving less weight to the opinions of Dr. Lee. Dr. Lee’s opinions
were inconsistent with his objective examination findings, the imaging reports, and
other treating and examining specialists’ opinions in the record. Id. The ALJ
found that Sims’s condition did not significantly change after Dr. Brett’s
assessment and that Dr. Brett’s assessment was consistent with subsequent
assessments by consulting and examining specialists. This finding is supported by
medical evidence in the record, including the imaging reports, treatment notes, and
the later consulting and examining specialists’ opinions. The ALJ weighed the
conflicting treating and examining opinions and gave specific and legitimate
reasons supported by substantial evidence for adopting Dr. Brett’s treating
specialist opinion, instead of Dr. Denker’s 2009 opinion and Dr. Lee’s opinions.
Sims argues that the ALJ erred by rejecting his symptom testimony.
However, the ALJ identified the specific testimony that he found to be not credible
and provided at least one clear and convincing reason supported by substantial
evidence for rejecting Sims’s testimony as not credible. Brown-Hunter v. Colvin,
806 F.3d 487, 493 (9th Cir. 2015). Sims’s subjective symptoms were inconsistent
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with the imaging reports and physical examinations of several treating and
examining physicians. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155,
1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis
for rejecting the claimant’s subjective testimony.”). As for the argument that the
ALJ didn’t consider Sims’s testimony about the side-effects of his medication, “the
ALJ took into account those limitations for which there was record support that did
not depend on [Sims’s] subjective complaints.” Bayliss v. Barnhart, 427 F.3d
1211, 1217 (9th Cir. 2005).
Finally, the ALJ provided germane reasons for rejecting the testimony of
Patricia Sims. Her testimony was inconsistent with the objective medical evidence
and residual functional capacity assessments of the treating and examining
specialists. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.
2009) (an ALJ provides germane reasons for rejecting a spouse’s similar testimony
if the ALJ rejects the testimony for the same reasons that he rejected the claimant’s
testimony).
AFFIRMED.
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