FILED
NOT FOR PUBLICATION
DEC 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDA SPEARS, No. 15-35033
Plaintiff-Appellant, D.C. No. C14-5198-MAT
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted December 19, 2017**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Linda Spears appeals the district court’s affirmance of the Commissioner of
Social Security’s denial of her application for disability insurance benefits under
Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291
*
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).
and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872,
875 (9th Cir. 2016), and we affirm.
The administrative law judge (“ALJ”) did not err in assessing the medical
evidence concerning Spears’s physical and mental health. Spears’s argument
amounts to a request that we reweigh the evidence, which we cannot do. The
ALJ’s failure to discuss some of Dr. Layton’s records and clinical findings is of no
consequence. “[T]he key question is not whether there is substantial evidence that
could support a finding of disability, but whether there is substantial evidence to
support the Commissioner’s actual finding that claimant is not disabled.”
Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997).
Contrary to Spears’s allegations, the ALJ did not err in relying upon
consulting physician Dr. Virji’s assessment. The ALJ declined to rely on the
adverse report Dr. Virji commissioned from the Cooperative Disability
Investigations Unit for additional investigation of the veracity of Spears’s claims
because Spears contested the accuracy of the report. Although Dr. Virji discounted
Spears’s subjective reports of her symptoms based on this report, Dr. Virji cited to
objective medical evidence in the record to formulate the opinion upon which the
ALJ relied. Because Dr. Virji’s opinion was supported by objective medical
evidence, the ALJ did not err in relying upon it.
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Similarly, the ALJ did not err in assessing the evidence from consulting
physician Dr. Arcega. Spears’s contention that the ALJ should have accepted Dr.
Arcega’s opinion that Spears was limited to sedentary work amounts to no more
than a bold assertion unsupported by substantive argument or case law. We need
not address this argument. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d
1155, 1161 n.2 (9th Cir. 2008).
Spears’s argument that the ALJ violated her duty to make a de novo
determination concerning Spears’s eligibility for disability benefits by granting
significant weight to Dr. Arcega’s opinion that Spears was not disabled also lacks
merit. The ALJ explained she credited this portion of Dr. Arcega’s opinion because
it was consistent with the overall medical evidence of record, which the ALJ
discussed to support her opinion. Therefore, Spears has not shown the ALJ
abdicated her duty to formulate an independent opinion concerning Spears’s
eligibility for disability benefits.
The ALJ also did not err in assessing the medical evidence concerning
Spears’s mental health symptoms. The ALJ adopted the portion of examining
physician Dr. Meagher’s opinion that conformed to the other medical evidence in
the record. The ALJ reasonably discounted the results of the mental status
examination tests Dr. Meagher administered because Spears appeared to be
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exaggerating the severity of her symptoms during the exam by using a walker
when, according to Spears’s own testimony, the exam took place during a period of
time in which Spears did not need a walker. In addition, contrary to Spears’s
argument that the ALJ erred in failing to incorporate Dr. Postovoit’s opinion that
Spears’s pain could affect her sleep, and as a result affect her efficiency and ability
to focus, the ALJ explained she adopted Dr. Postovoit’s opinion on this point and
incorporated it into the residual functional capacity (“RFC”) analysis by limiting
Spears to simple, routine tasks.
The ALJ did not err in finding not entirely credible Spear’s allegations
regarding the severity of her symptoms and functionality limitations. The ALJ
performed the required two-step analysis and explained that she discounted
Spears’s testimony because, among other reasons, there were times when Spears
appeared to exaggerate the severity of her symptoms, Spears made statements
inconsistent with her alleged symptoms, and the objective medical evidence in the
record failed to substantiate her symptoms. See Treichler v. Comm’r of Soc. Sec.
Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). These constitute specific, clear, and
convincing reasons, and they furnish adequate support for discounting Spears’s
testimony. See id.; Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002); Molina
v. Astrue, 674 F.3d 1104, 1112-14 (9th Cir. 2012).
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The ALJ also did not err in affording little weight to the lay testimony from
Spears’s husband. Even if the ALJ explained the decision to reject Mr. Spears’s
evidence with “less than ideal clarity,” any error was harmless because Mr.
Spears’s evidence “described the same limitations as [Spears’s] own testimony;”
and the ALJ’s reasons for discrediting her testimony apply “with equal force” to
Mr. Spears’s evidence. See Molina, 674 F.3d at 1121-22 (citing Alaska Dep’t of
Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004)).
Although the ALJ did not discuss the lay witness evidence from Spears’s
former coworker, Meliah Looney, and Spears’s sister, Stacy Kaech, any error in
this omission was harmless. Spears does not explain how the ALJ omitting
discussion of Ms. Looney’s letter verifying Spears’s work ethic or Ms. Kaech’s
letter, which provides substantially the same information as Spears’s testimony,
“alters the outcome of the case” in light of “the record as a whole.” See Molina,
674 F.3d at 1115. As a result, Spears has not shown that omitting discussion of this
evidence was harmful error.
Spears also has not demonstrated that the ALJ erred in analyzing Spears’s
RFC or finding under Step Five that there are jobs existing in significant numbers
in the national economy that Spears could perform. Spears’s allegations of error
concerning these portions of the sequential evaluation depend upon finding the
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ALJ committed harmful error in previous steps of the analysis, which Spears has
not shown.
Finally, despite Spears’s argument that the Appeals Council erred by not
including additional evidence she submitted to the Appeals Council in the
administrative court transcript, the Court lacks jurisdiction to review the Appeals
Council’s decision about the contents of the record because such a decision is not a
final agency action. See Brewes v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1161-
62 (9th Cir. 2012). Although the Court may instruct the Commissioner to consider
new evidence as provided under 42 U.S.C. § 405(g), which requires showing the
new evidence “is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding,” Spears has not demonstrated
how the evidence at issue meets this standard.
AFFIRMED.
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