FILED
NOT FOR PUBLICATION
JUN 11 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEENA R. DAVIS No. 17-35195
Plaintiff-Appellant, D.C. No. 2:16-cv-00474-BHS
v.
MEMORANDUM*
NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted June 7, 2018**
Seattle, Washington
Before: BYBEE and N.R. SMITH, Circuit Judges, and HUCK,*** District Judge.
*
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).
***
The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
Plaintiff-Appellant, Deena R. Davis applied for Social Security Disability
Insurance Benefits and Supplemental Security Income under Titles II and XVI of the
Social Security Act. The Acting Commissioner of Social Security (the
“Commissioner”) denied Davis’s applications after a hearing before an Administrative
Law Judge (“ALJ”).
The ALJ found Davis to be disabled when considering all of her impairments,
including her substance use disorder. However, the ALJ determined that Davis’s
limitations would not be disabling if she stopped using substances, and therefore,
pursuant to Social Security Regulations, that her substance use disorder was a
contributing factor material to the determination of disability and, thus, that a final
determination of “no disability” was warranted. See 42 U.S.C. § 423(d)(2)(C); 20
C.F.R. § 404.1535. The District Court entered an Order affirming the Commissioner’s
final decision, and Davis appealed.
On appeal, Davis objects to the ALJ’s disability determination. Specifically,
Davis argues the ALJ erred in assessing the medical evidence, Davis’s testimony, and
the lay witness report of her roommate, Carl Johnson. Finally, Davis argues new
evidence submitted to the Appeals Council shows that the ALJ’s decision is not
supported by substantial evidence and was based on legal error.
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We have jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and
we affirm.
1. Substantial evidence supports the ALJ’s interpretation of the medical
record. See Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982) (“The ALJ's
findings are conclusive if supported by substantial evidence.”). First, the ALJ
presented clear and convincing reasons supported by substantial evidence for
assigning “less weight” to the opinion of examining psychologist, Dr. David Moore,
when considering Davis’s condition in the absence of substance use. Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“To reject an uncontradicted opinion
of a treating or examining doctor, an ALJ must state clear and convincing reasons that
are supported by substantial evidence.”). Namely, Dr. Moore, who opined that Davis
“does not have the emotional stability to maintain gainful employment in either
solitary or interpersonal settings at this point,” evaluated Davis “at a time in which
[Davis] was using or had recently” used drugs and linked his opinion to Davis’s
substance use.
Though one rational interpretation of Dr. Moore’s records may lead to an
unlimited application of his opinion, another rational interpretation adjudges Dr.
Moore’s opinion as solely probative of Davis’s condition in the presence of substance
use. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the
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evidence is susceptible to more than one rational interpretation, one of which supports
the ALJ’s decision, the ALJ’s conclusion must be upheld.”).
Next, contrary to Davis’s arguments, the ALJ did not give excessive weight to
the opinions of State agency reviewing physicians. Regarding the opinions of the
State agency’s reviewing medical consultants, Robert Hander, M.D., and Charles
Wolfe, M.D., the Court notes that greater limitations were imposed in the ALJ’s
residual functional capacity than were reflected in the opinions of Drs. Hander and
Wolfe. Next, regarding the opinions of State agency reviewing consultants, Matthew
Comrie, Psy.D., and Christmas Covell, Ph.D., their opinions are supported by the
clinical record outlined by the ALJ. See SSR 96-6p (providing that the opinions of
State agency medical and psychological consultants can be accorded weight if they
are supported by the case record, “including any evidence received at the
administrative law judge and Appeals Council levels that was not before the State
agency”).
Finally, the ALJ extensively summarized the medical evidence supporting her
determination that in the absence of substance use, Davis would not be disabled.
Examining the record as a whole, the ALJ’s interpretation of the medical record is
supported by substantial evidence.
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2. The ALJ offered specific, clear, and convincing reasons for finding that
Davis’s statements concerning the intensity, persistence, and limiting effects of her
symptoms lacked credibility. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
1996) (“If . . . there is no evidence of malingering, the ALJ can reject the claimant’s
testimony about the severity of her symptoms only by offering specific, clear, and
convincing reasons for doing so.”). First, the ALJ noted Dr. Moore’s diagnosis of
Davis as malingering, which is probative of Davis’s reliability as an accurate reporter
of her condition, and which Davis concedes falls within the scope of what an ALJ may
properly consider. Furthermore, the ALJ summarized additional record evidence of
dishonesty that serve as “serious credibility indicators.” See, e.g., Burch v. Barnhart,
400 F.3d 676, 680 (9th Cir. 2005) (“[A]n ALJ may engage in ordinary techniques of
credibility evaluation, such as considering claimant’s reputation for truthfulness and
inconsistencies in claimant’s testimony.”).
Next, the ALJ extensively developed the clinical evidence of record
inconsistent with the alleged severity of Davis’s ailments. While subjective symptom
testimony cannot be rejected on the sole ground that it is not fully corroborated by
objective medical evidence, such evidence is still a relevant factor in determining the
credibility of a claimant’s reporting of the severity of her symptoms and their
disabling effects. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 20
5
C.F.R. § 404.1529(c)(2)); see also Burch, 400 F.3d at 681 (“Although lack of medical
evidence cannot form the sole basis for discounting pain testimony, it is a factor that
the ALJ can consider in his credibility analysis.”). Though Davis may disagree with
the ALJ’s interpretation of the record, the latter’s interpretation is supported by
substantial evidence, which precludes the Court from engaging in second-guessing.
Thomas, 278 F.3d at 959; see also Burch, 400 F.3d at 679 (“Where evidence is
susceptible to more than one rational interpretation, it is the ALJ’s conclusion that
must be upheld.”).
The ALJ also discounted Davis’s testimony because it was inconsistent with her
daily activities. Though the ALJ may have overstated the disparity between Davis’s
daily activities and her testimony, specifically as it relates to her testimony regarding
physical symptoms, such error, if any, was harmless in light of the aforementioned
evidence. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.
2008) (explaining that the invalidity of one or more of an ALJ’s reasons for an
adverse credibility finding is harmless error “[s]o long as there remains ‘substantial
evidence supporting the ALJ’s conclusions on . . . credibility’ and the error ‘does not
negate the validity of the ALJ’s ultimate [credibility] conclusion.’” (quoting Batson
v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004))).
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3. The ALJ also did not err in according no weight to the report of Davis’s
roommate, Carl Johnson. If an ALJ wishes to discount a lay witness’s testimony, she
must give reasons germane to that witness for doing so. Dodrill v. Shalala, 12 F.3d
915, 919 (9th Cir. 1993). The ALJ gave two such reasons. First, Johnson did not
specify whether he observed Davis’s behavior while she was abusing substances,
which is important due to the ALJ’s task of determining Davis’s residual functional
capacity in the absence of substance use. In fact, Davis tested positive for opiates in
April 2012, the same month as Johnson’s Report. Second, Johnson’s statements
covered the same grounds as those of Davis. Thus, the ALJ’s clear and convincing
reasons for limiting the weight of Davis’s testimony were germane to disregard
Johnson’s statements. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694
(9th Cir. 2009).
4. Lastly, regarding the 17 pages of documents the Appeals Council made part
of the record subsequent to the ALJ’s decision, though these documents show limiting
impairments experienced by Davis, they do not do so to the extent requiring remand
or requiring overturning the ALJ’s decision. 1
The judgment of the district court is AFFIRMED.
1
In fact, some of this evidence supports the ALJ’s decision. For example,
September 2014 medical records included in these documents indicate that Davis’s
“[l]umbar MRI [was] without large abnormalities,” arthritic abnormalities were not
severe, and “no severe findings [were] present.”
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