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NOT FOR PUBLICATION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
DEBORAH L. BAKER, No. 15-35284
Plaintiff-Appellant, D.C. No. 3:14-cv-05296-MJP
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Submitted December 19, 2017**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Deborah L. Baker appeals the district court’s affirmance of the
Commissioner of Social Security’s denial of her application for disability
insurance benefits under Title XVI of the Social Security Act. 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).
under 28 U.S.C. § 1291 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 commit harmful error in
evaluating Baker’s medical evidence, despite Baker’s numerous arguments to the
contrary. The ALJ did not err by not discussing evidence from three psychologists
who evaluated Baker prior to her alleged onset date, as ALJs are not required to
discuss evidence “that is neither significant nor probative,” Howard ex rel. Wolff v.
Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003), and medical opinions predating the
alleged onset date “are of limited relevance,” Carmickle v. Comm’r, Soc. Sec.
Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). However, even if omitting discussion
of this evidence was error, it would not amount to harmful error that affected the
outcome of the ALJ’s decision because this evidence is consistent with medical
evidence the ALJ did discuss. Because Baker has not demonstrated how
substantively similar evidence could affect the ALJ’s ultimate nondisability
determination, any error was harmless. See Molina v. Astrue, 674 F.3d 1104, 1115
(9th Cir. 2012); Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015).
Two of the reasons the ALJ provided for discounting examining
psychologist Dr. Wheeler’s opinion were not legally valid, namely that Dr.
Wheeler’s opinion that Baker’s behavior would distract others in the workplace
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was inconsistent with evidence that she could complete her daily living activities,
and that Dr. Wheeler examined Baker for a DSHS benefits application, rather than
for treatment purposes. However, Baker has not shown these errors affected the
ALJ’s ultimate nondisability determination, as the ALJ provided other specific and
legitimate reasons for discounting Dr. Wheeler’s opinion, including highlighting
inconsistencies within Dr. Wheeler’s opinion and conflicts between Dr. Wheeler’s
evidence and other medical evidence in the record. As a result, any error was
harmless. See Zavalin, 778 F.3d at 845.
Baker’s argument that the ALJ erred in assessing the evidence from
examining psychologist Dr. Coder lacks merit. Baker contends the ALJ erred by
neglecting to discuss the GAF score Dr. Coder assigned Baker. However, the ALJ
did discuss this GAF score and explained that it carried little weight because it was
unclear whether the score measured Baker’s symptoms or functionality. Thus, its
utility for evaluating Baker’s residual functional capacity (“RFC”), which is based
on a claimant’s functional abilities, was limited. See Garrison v. Colvin, 759 F.3d
995, 1002 n.4 (9th Cir. 2014). Baker is also incorrect that the ALJ omitted Dr.
Coder’s opinion that Baker’s ability to adapt to routine changes was impaired, as
the ALJ included in the RFC that Baker was limited to “work that does not require
more than occasional changes in work setting or work processes.”
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Baker’s assertion that the ALJ erred by discounting evidence from
examining psychologist Dr. Tarantino also fails. The ALJ pointed out specific and
legitimate reasons for according Dr. Tarantino’s opinion little weight, including its
inconsistency with other evidence in the record and that the opinion was largely
based on Baker’s subjective reports, which the ALJ properly discredited. See
Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Even if other reasons the
ALJ enumerated for discounting Dr. Tarantino’s opinion do not clear the “specific
and legitimate” bar, substantial evidence still supports the ALJ’s conclusion,
rendering any error harmless. See Carmickle, 533 F.3d at 1162-63; Zavalin, 778
F.3d at 845.
Baker argues the ALJ erred by affording too much weight to the opinions of
consulting psychologists Drs. Postovoit and Eather because the opinions of non-
examining psychologists are entitled to less weight than evidence from examining
psychologists, and because these doctors did not review evidence obtained after
May 2011. Nevertheless, Baker does not articulate how the ALJ erred in relying on
these medical opinions or how this alleged error impacted the ALJ’s decision.
Because Baker has not argued this issue “specifically and distinctly,” she has not
preserved it for the Court’s review. See Indep. Towers of Wash. v. Washington, 350
F.3d 925, 929-30 (9th Cir. 2003); Carmickle, 533 F.3d at 1161 n.2.
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Baker’s assertions that the ALJ erred in evaluating the evidence concerning
her alleged physical impairments from Drs. Gaffield, Bunnell, and Hoskins also
lack merit. Baker argues the ALJ erred by affording Dr. Gaffield’s opinion
significant weight despite the fact that the evaluation took place two weeks before
Baker broke her leg. However, Baker does not explain how this injury affected her
functional abilities for a span of at least twelve months, as required to qualify as a
disability under the act, see Garrison, 759 F.3d at 1010, nor does she clarify how
this injury otherwise affected Dr. Gaffield’s assessment.
Baker’s objection to the ALJ giving significant weight to Dr. Bunnell’s
opinion also lacks merit. Although Baker contends Dr. Bunnell’s clinical findings
are inconsistent with his opinion, Baker’s argument simply amounts to an
alternative interpretation of the medical evidence. Resolving inconsistencies in the
medical record is the domain of the ALJ, not this Court. See Ryan v. Comm’r Soc.
Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008).
In addition, Baker maintains that the ALJ erred by granting significant
weight to Dr. Hoskins’ opinion because Dr. Hoskins did not adequately account for
Baker’s subjective complaints and his opinion is inconsistent with Dr. Bunnell’s
findings. However, Baker makes these perfunctory assertions without elucidating
5
what information Dr. Hoskins’ opinion failed to take into account or describing
how the two doctors’ opinions conflict.
The ALJ did not err in discounting Baker’s testimony concerning the extent
of her symptoms and their limiting effects. The ALJ applied the requisite two-step
framework and cited specific, clear, and convincing reasons for discounting
portions of Baker’s testimony. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir.
2017). The ALJ pointed to inconsistencies between Baker’s testimony and her
reports to treatment providers, a lack of supporting objective medical evidence,
evidence that some of Baker’s symptoms were well controlled with treatment, the
fact that Baker received little treatment for her alleged symptoms and did not
follow certain prescribed courses of treatment, and examples of Baker failing to
report to her treatment providers symptoms she alleged in her benefits application.
Although Baker argues the ALJ erred by not acknowledging that the medical
evidence of record, considered in its entirety, supports Baker’s testimony about her
limitations, Baker does not support this argument with any further explanation or
citation. As a result, this contention does not amount to a specific and distinct
argument, as required to invoke this Court’s review. See Indep. Towers of Wash.,
350 F.3d at 929-30; Carmickle, 533 F.3d at 1161 n.2.
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Baker’s assertion that the ALJ’s failure to properly evaluate the medical
evidence “tainted” the evaluation of Baker’s testimony also lacks merit, as it is
tethered to Baker’s failure to show the ALJ committed harmful error when
assessing the record.
While Baker argues the ALJ cannot reject her testimony based solely upon
whether objective evidence supports the alleged severity of her symptoms, the ALJ
posited reasons in addition to the lack of objective medical evidence for
discounting her testimony. See Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219,
1227 (9th Cir. 2009).
Baker’s contention that the ALJ erred by relying on her lack of treatment to
discount her testimony because she alleges there is no evidence indicating
treatment would have improved her impairments to the point where she would
have been able to work also lacks merit. This Court has explained that when one of
the alleged disabling symptoms is physical pain, failure to seek treatment may be
probative of credibility. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007).
Although it is possible a claimant’s mental health could impede her ability to seek
treatment, where, as here, there is no evidence lack of treatment was attributable to
mental impairment, an ALJ may rely on lack of treatment to discount claimant
testimony. See Molina, 674 F.3d at 1113-14.
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Although Baker takes issue with other reasons the ALJ proffered for
discounting her testimony, even if the reasons she disputes are not clear and
convincing, the ALJ’s other reasons are sufficient grounds for discounting her
testimony, rendering any error harmless. See Bray, 554 F.3d 1219, 1227.
The ALJ also did not commit harmful error in neglecting to discuss lay
witness evidence from a Social Security employee who interviewed Baker and
reported Baker had difficulty with mobility and needed to stand periodically due to
pain in her back and hips. The ALJ credited more reliable medical evidence that
contradicted this lay witness opinion, and Baker has not shown how omitting
discussion of the lay witness testimony would have changed the ALJ’s decision.
Thus, any error was harmless. See Molina, 674 F.3d at 1119.
Finally, the ALJ did not err in analyzing Baker’s RFC or in making the Step
Five findings. These assertions of error stem from other errors Baker alleged
concerning the preceding steps in the sequential analysis, none of which Baker has
shown were harmful. In addition, Baker’s argument that the ALJ erred by
disregarding the fact that when Baker’s counsel asked the vocational expert to
assume additional limitations in the hypothetical the vocational expert stated that
these limitations would “exceed employee tolerances” also fails. An ALJ is not
required to “accept as true the restrictions presented in a hypothetical question
8
propounded by a claimant’s counsel,” Magallanes v. Bowen, 881 F.2d 747, 756
(9th Cir. 1989), and is free to “reject restrictions in a hypothetical question that are
not supported by substantial evidence,” Osenbrock v. Apfel, 240 F.3d 1157, 1164-
65 (9th Cir. 2001).
AFFIRMED.
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