NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN V. MILLER, No. 16-56635
Plaintiff-Appellant, D.C. No.
5:14-cv-02029-GW-SP
v.
NANCY A. BERRYHILL, Acting MEMORANDUM*
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted April 13, 2018
Pasadena, California
Before: ROGERS,** BYBEE, and WATFORD, Circuit Judges.
Claimant John Miller appeals the district court’s judgment affirming the
Commissioner’s denial of benefits. Miller’s arguments on appeal are unavailing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John M. Rogers, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
At his hearing before the Administrative Law Judge (ALJ), Miller testified
that he could sit for only twenty to thirty minutes, could lift at most two to three
pounds, and that he spends most of his day lying down. Following the required
two-step analysis, see Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014), the
ALJ determined that this testimony regarding the severity of Miller’s symptoms
was not credible. In this appeal, Miller’s primary contention is that the ALJ
improperly relied in part on benign medical imaging to find him non-credible, even
though his physical limitations are in fact caused by hardware in his back from a
prior surgery, and so the lack of spinal abnormalities shown in the medical imaging
does not call Miller’s credibility into question given that the hardware is the root of
his problems.
Even assuming that Miller is correct, his argument still fails because the ALJ
gave several other “specific, clear and convincing reasons” for rejecting Miller’s
testimony. See id. (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).
For instance, the ALJ noted that Miller’s treating physician never imposed any
work restrictions (other than a recommendation that Miller not perform “heavy
work”), and this lack of limitations was inconsistent with the severity of the
symptoms reported by Miller. The ALJ was entitled to consider this conspicuous
gap in the medical evidence. See, e.g., Burch v. Barnhart, 400 F.3d 676, 681 (9th
Cir. 2005). The ALJ also reasoned that Miller’s testimony was undercut by the
2 16-56635
fact that he had worked before the alleged onset date with approximately the same
impairments, as evidenced by medical imaging showing no change to his lumbar
spine or the surgery site from before the alleged onset date to afterward, as well as
various range-of-motion and pain tests that remained the same before and after the
alleged onset date. This was permissible. “[A]n ALJ may weigh inconsistencies
between the claimant’s testimony and his or her . . . work record . . . .” Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). Finally, the
ALJ observed that an examining physician had noted the presence of “confounding
factors,” which might indicate that Miller was magnifying his symptoms. A
claimant’s tendency to exaggerate is another permissible reason to find him non-
credible. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). In sum, the
ALJ gave several specific, clear and convincing reasons for discounting Miller’s
credibility, which are supported by substantial evidence in the record as a whole.
Although Miller suggests that these reasons suffer from their own flaws, his
arguments to this effect are unpersuasive. Thus, even if the ALJ did not consider
the possible effects of Miller’s hardware, any such deficiency did not compel
rejection of the ALJ’s overall credibility evaluation. See, e.g., Molina v. Astrue,
674 F.3d 1104, 1115 (9th Cir. 2012).
Miller also contends that the district court erred in declining to remand his
case to the ALJ to consider new evidence of a November 2014 procedure to
3 16-56635
surgically remove a nerve sheath tumor from his left ankle, but this argument is
also without merit. Under 42 U.S.C. § 405(g), “[r]emand for consideration of new
evidence is appropriate if a claimant presents evidence that is material to
determining disability, and there is good cause for the failure to produce the
evidence earlier.” Wainwright v. Sec’y of Health & Human Servs., 939 F.2d 680,
682 (9th Cir. 1991). To qualify for such a remand, a claimant must present new
evidence that is “material,” i.e., it “must bear ‘directly and substantially on the
matter in dispute,’” Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001)
(quoting Ward v. Schweiker, 686 F.2d 762, 764 (9th Cir. 1982)), and the claimant
must show “a ‘reasonable possibility’ that the new evidence would have changed
the outcome of the administrative hearing,” id. (citing Booz v. Sec’y of Health &
Human Servs., 734 F.2d 1378, 1380–81 (9th Cir. 1984)).
The district court correctly concluded that this new evidence relating to
Miller’s ankle condition was not material. Miller has not shown the requisite
reasonable possibility that the new evidence would have altered the ALJ’s
decision. The new evidence does not demonstrate any significant new functional
limitations, either before or after the surgery. To the contrary, it shows that Miller
had a successful surgery, after which the only limitations placed on him were to
“avoid walking barefoot” in the event he had nerve damage, and to wear well-
padded shoes. Miller relies on our decision in Wainwright, 939 F.2d at 680, but
4 16-56635
that case is distinguishable. In Wainwright, the ALJ had found the claimant’s
assertions of severe pain to be non-credible because they were not supported by
objective medical evidence. Id. at 681. After the ALJ’s decision, however, a new
MRI scan showed a previously unseen disc fragment in the claimant’s spine. We
found this new MRI scan to be material because the claimant’s physician opined
that “the fragment ‘may well have been there’ earlier, but could not be detected
due to the state of MRI technology,” and the MRI scan therefore “may provide a
medical basis for [the claimant’s] allegations of disabling pain.” Id. at 683. Here,
by contrast, the new evidence of Miller’s ankle condition does not undermine the
ALJ’s reasons for finding Miller’s testimony to be non-credible, nor does it show
any additional functional limitations that might have led the ALJ to find him
disabled. Accordingly, the new evidence is not material, and Miller was properly
denied a remand.
Miller raises several additional arguments, but they are also without merit.
The judgment of the district court is affirmed.
5 16-56635