NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RHONDA R. DONEY, No. 15-35171
Plaintiff-Appellant, D.C. No. 4:14-cv-00001-BMM
v.
MEMORANDUM*
NANCY A. BERRYHILL, Commissioner
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted March 28, 2018**
Before: FARRIS, CANBY, and LEAVY, Circuit Judges.
Rhonda R. Doney appeals the district court’s judgment affirming 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. We review de novo, Marsh v. Colvin, 792 F.3d 1170,
*
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).
1171-72 (9th Cir. 2015), and we affirm.
The administrative law judge (“ALJ”) did not err in finding that Doney’s
statements regarding the intensity, persistence, and limiting effects of her pain or
other symptoms were not credible. The ALJ performed the required two-step
analysis and explained that Doney’s alleged limitations were contradicted by
conservative medical treatment, including a lack of surgery, as well as her daily
activities. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (conservative
treatment is sufficient to discount a claimant’s testimony regarding severity of an
impairment); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (physical
therapy is conservative treatment); Burch v. Barnhart, 400 F.3d 676, 680-81 (9th
Cir. 2005) (although evidence of daily activities may also admit of a more
favorable interpretation, an ALJ’s rational interpretation must be upheld where the
evidence is susceptible to more than one rational interpretation). These reasons
were specific and clear and convincing, and they adequately supported the
credibility finding. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,
1102 (9th Cir. 2014).
The ALJ did not err by concluding, at step two of the sequential evaluation
process, that Doney’s anxiety was a nonsevere impairment. See Ukolov v.
Barnhart, 420 F.3d 1002, 1004-05 (9th Cir. 2005) (explaining that symptoms alone
cannot support a finding of an impairment). The record evidence cited by Doney,
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including her own statements, does not establish that her anxiety was a severe
impairment, see id., and she has waived any contention that the record includes a
medical diagnosis of agoraphobia with panic disorder that would establish the
severity of her impairment. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d
1155, 1161 n.2 (9th Cir. 2008) (the court will not address issues that are not
specifically and distinctly argued in an appellant’s opening brief).
The ALJ did not err by concluding, at step three of the sequential evaluation
process, that Doney failed to meet or equal Listing 1.02 because the medical
evidence did not demonstrate that she demonstrated an inability to ambulate
effectively. See Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (to meet a
listed impairment, a claimant must establish that he or she meets each
characteristic of a listed impairment relevant to his or her claim). The medical
record established that Doney consistently showed no effusion and full
unobstructed range of motion in her knee, and substantial evidence therefore
supported the determination that Doney’s impairments did not meet or equal
Listing 1.02. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.00(B)(2)(b), 1.02.
Contrary to Doney’s contention, the ALJ did not improperly discount the
opinions of treating physician Dr. Gregory S. Tierney, M.D., where the ALJ
explicitly relied on Dr. Tierney’s April 2010 and May 2012 findings in assessing
Doney’s Residual Functional Capacity (“RFC”), and the May 12, 2010, progress
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note cited by Doney did not assess any additional limitations that the ALJ failed to
incorporate into the RFC. Additionally, the ALJ was not required to contact Dr.
Tierney to further develop the medical record because Dr. Tierney’s reports were
not ambiguous or insufficient for the ALJ to make a disability determination. See
Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (ALJ was not required to
contact doctors where record evidence was adequate to make a disability
determination).
Doney’s contention that the ALJ improperly discounted an additional
limitation that was verbally communicated to her by chiropractor Mark Stoebe,
D.C., lacks merit because the additional limitation is not contained in Stoebe’s
written documents or otherwise reflected in the record, and the ALJ properly
determined that Doney’s pain testimony was not credible.
The ALJ did not err in giving little weight to the opinions of Doney’s
occupational therapist, Deb Ammondson, OTR/L. The ALJ properly concluded
that Ammondson’s opinions were inconsistent with Doney’s daily activities, and
contrary to Doney’s contention, the ALJ’s decision adequately described Doney’s
daily activities. The ALJ thus gave a germane reason for discounting
Ammondson’s opinions. See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir.
2014) (an ALJ may discount testimony from “other sources,” including as
therapists, if the ALJ gives reasons germane to each witness for doing so); see also
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Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009)
(upholding ALJ’s rejection of lay witness testimony because, even though two of
the ALJ’s reasons were not legally sufficient, the ALJ provided one germane
reason).
The ALJ properly included all limitations supported by and consistent with
substantial evidence in the residual functional capacity assessment and in the
hypothetical to the vocational expert (“VE”), including the determination that
Doney could perform light work as defined in 20 CFR § 404.1567(b). See Bayliss,
427 F.3d at 1217-18 (ALJ may limit hypothetical to limitations supported by
substantial evidence); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th
Cir. 2008) (merely restating an argument that the ALJ improperly discounted
testimony is not sufficient to show that an ALJ’s hypothetical is defective).
The ALJ did not err in relying on the VE’s testimony and concluding, at step
four of the sequential evaluation process, that Doney could return to her past work.
Even if the ALJ erred in his determination that Doney could return to her past work
as actually performed, any error was harmless because the ALJ properly
determined that she could also return to her past work as generally performed. See
Pinto v. Massanari, 249 F.3d 840, 845-46 (9th Cir. 2001) (observing that a
claimant is not disabled under the Act if she can perform her past relevant work
either as actually performed or as generally performed in the national economy;
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“the best source for how a job is generally performed” is usually the Dictionary of
Occupational Titles; and VE testimony can be considered in the step four analysis)
(emphasis added); Treichler, 775 F.3d at 1099.
AFFIRMED.
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