NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANANA RAZUMNY ROBERTS, No. 16-35798
Plaintiff-Appellant, D.C. No. 6:15-cv-01460-CL
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted May 14, 2018**
Portland, Oregon
Before: TASHIMA, McKEOWN, and PAEZ, Circuit Judges.
Anana Razumny Roberts appeals the district court’s decision affirming the
Social Security Commissioner’s denial of supplemental security income (“SSI”)
disability benefits. Roberts alleged disability based on various conditions
*
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).
including fibromyalgia and chronic fatigue syndrome. An administrative law
judge (“ALJ”) denied her claim, finding Roberts’s testimony inconsistent with her
medical records and not entirely credible. We have jurisdiction under 28 U.S.C
§ 1291, and we affirm.
We review de novo the district court’s order “to ensure that the
Commissioner’s decision was supported by substantial evidence and a correct
application of the law.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009). This involves a “highly deferential” review of the ALJ’s denial of
benefits. Id.
The ALJ did not commit legal error in discounting the opinion of physical
therapist Breuer. Physical therapists are not “acceptable medical sources,” and
thus the ALJ did not err in discrediting Breuer’s opinion when it conflicted with
that of “acceptable medical sources,” three physicians. See SSR 06-03p, available
at 2006 WL 2329939.1 The ALJ correctly compared Breuer’s testimony to the
physicians’ opinions and to the record as a whole (including Roberts’s testimony),
and afforded Breuer’s opinion “little weight” because it conflicted with the record.
See 20 C.F.R. § 416.927(c), (f). Similarly, the ALJ properly gave “more weight”
to the opinion of Dr. Nolan, who examined Roberts and determined that she could
1
The Social Security Administration rescinded this administrative guidance,
but did so only for claims filed on or after March 27, 2017. The guidance therefore
applies to this appeal. See 82 Fed. Reg. 15263-01 (Mar. 27, 2017).
2
perform physical functions consistent with “light work.” See Britton v. Colvin, 787
F.3d 1011, 1013 (9th Cir. 2015).
This case is unlike Benecke v. Barnhart, where we reversed a denial of
benefits because three rheumatologists diagnosed the claimant with fibromyalgia,
and there was no conflicting medical testimony concerning the claimant’s physical
capabilities. 379 F.3d 587 (9th Cir. 2004). This case is also far from Revels v.
Berryhill, where we reversed a denial of benefits because the ALJ gave “no
weight” to the claimant’s physician, a rheumatologist who had treated the claimant
for fibromyalgia-related chronic pain at least twelve times during a two-year period
and concluded that she could not work. 874 F.3d 648 (9th Cir. 2017).
Substantial evidence supports the ALJ’s determination that Roberts’s
testimony about the severity of her symptoms was “not entirely credible.” Where,
as here, the record establishes a medically determinable impairment that could
reasonably cause a claimant’s reported symptoms, an ALJ must evaluate the
claimant’s symptom allegations. See 20 C.F.R. § 416.929; SSR 96-7p, available
at 1996 WL 374186.2 The ALJ’s decision must “contain specific reasons for the
finding on credibility, supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any subsequent
2
SSR 96-7p was later superseded by SSR 16-3p, available at 2016 WL
1119029. But because SSR 96-7p was in effect when the ALJ issued her decision,
the ALJ was bound to follow it. See 20 C.F.R. § 402.35(b)(1).
3
reviewers the weight the adjudicator gave to the individual’s statements and the
reasons for that weight.” Id. at *2. The ALJ is guided by “ordinary techniques of
credibility evaluation,” and may consider inconsistencies with the medical record,
unexplained failures to seek treatment, and whether the claimant engages in
activities of daily living that are consistent with the symptom allegations. See
Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). The ALJ’s decision meets
these criteria.
Substantial evidence supports the ALJ’s finding that Roberts’s alleged
symptoms “do not comport with objective evidence in her medical record.” Bray
v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). Roberts
claimed debilitating pain and fatigue, but her intermittent doctor visits did not
reflect such issues.
Crucially, the ALJ complied with Social Security Rulings 99-2p and 12-2p,
which provide specific guidance to adjudicators assessing claims concerning
chronic fatigue syndrome and fibromyalgia. See SSR 99-2p, available at 1999 WL
271569; SSR 12-2p, available at 2012 WL 3104869. As required by the Rulings,
the ALJ considered the full longitudinal record. Unlike Revels, who sought
consistent medical treatment for debilitating pain, 874 F.3d at 663, Roberts—the
ALJ noted—had “no medical-related complaints or visits” for a decade, followed
by a recent year with no ongoing pain treatment. Such unexplained gaps in
4
treatment may support an ALJ’s credibility determination. See Orn v. Astrue, 495
F.3d 625, 638 (9th Cir. 2007).
As the ALJ observed, the one-year gap in treatment followed immediately
after Roberts was initially denied SSI benefits. Medical records show that Roberts
conducted online research to “see[] all the tests that she should present in order to
be considered for Social Security, and she mentioned stress test[s] and other
things that are not pertinent for her medical problems.” In response, a doctor
explained that she was “not going to order every single test that the Social
Security Administration posts on the website because it is not pertinent to
[Roberts’s] medical problems.” Given the curious timing of Roberts then
foregoing treatment for a year, the record adequately supports the ALJ’s
conclusion that Roberts “seemed more interested in documenting disability than in
receiving treatment to become more functional.” See Molina, 674 F.3d at 1111
(“Even when the evidence is susceptible to more than one rational interpretation,
we must uphold the ALJ’s findings if they are supported by inferences reasonably
drawn from the record.”).
The ALJ also found that Roberts’s activities of daily living are
“inconsistent with” her claimed disability. A claimant’s completion of certain
household tasks can provide a valid reason for discounting her inconsistent
symptom allegations, even in the specific context of fibromyalgia pain. See
5
Revels, 874 F.3d at 667; Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
To the extent Roberts challenges certain of the ALJ’s findings concerning her
activities of daily living, any error was harmless in light of the overall record.3
Similarly, the ALJ did not commit reversible error in giving “little weight”
to lay witness testimony of Roberts’s mother. Her mother submitted a report
detailing Roberts’s difficulty performing various physical functions, which mostly
reflected Roberts’s own report on her daily activities. Because her mother did not
describe any limitations beyond those described by Roberts, any error in
evaluating the mother’s testimony is “inconsequential to the ultimate nondisability
determination.” Molina, 674 F.3d at 1122.
The ALJ did not err in determining Roberts’s Residual Functional Capacity
and posing questions to a vocational expert. An ALJ need not include in such
questions every limitation asserted by the claimant; rather, the ALJ need only
include the limitations that she found credible and supported by substantial
3
The district court properly rejected a rationale superfluous to the ALJ’s
credibility determination—that Roberts’s attempts to get pregnant were
“inconsistent with” her claimed disability. We have never held that aspirations of
parenthood are incompatible with disability, nor do we do so here. We also doubt
whether taking one car trip per year to visit a family member for the holidays is
“inconsistent with” disability. But even when certain of the ALJ’s reasons are
invalid, we nonetheless uphold credibility determinations as long as they are
supported by substantial evidence. See Batson v. Comm’r of Soc. Sec. Admin., 359
F.3d 1190, 1197 (9th Cir. 2004).
6
evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
The ALJ did so here.
AFFIRMED.
7
Anana Roberts v. Nancy Berryhill
Combined Opinion