FILED
NOT FOR PUBLICATION
JUN 14 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMI GEBHARD, No. 17-35055
Plaintiff-Appellant, D.C. No. 1:15-cv-00487-JE
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
John Jelderks, Magistrate Judge, Presiding
Submitted May 9, 2018**
Portland, Oregon
Before: RAWLINSON and CHRISTEN, Circuit Judges, and GARBIS,*** 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 Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
Appellant Tami Gebhard (Gebhard) appeals the district court’s order
affirming the denial of social security benefits. Gebhard contends that res judicata
barred the ALJ’s determination that her mental impairments were not severe.
Gebhard maintains that the ALJ failed to properly weigh the medical opinions
supporting a determination that she was disabled, and did not provide sufficient
reasons for rejecting her symptom testimony. Gebhard further asserts that the ALJ
erred in failing to consult a vocational expert (VE).
The ALJ was not required to determine that Gebhard suffered from a severe
mental impairment premised on medical opinions submitted in support of her prior
unsuccessful application. See Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir.
2009), as amended (explaining that “[n]ormally, an ALJ’s findings that a claimant
is not disabled creates a presumption that the claimant continued to be able to work
after that date”) (citation and internal quotation marks omitted). In determining
that Gebhard was not disabled, the ALJ relied on the opinion of a medical expert,
who reviewed the entire medical history concerning Gebhard’s mental condition
and determined that Gebhard did not suffer from a severe mental impairment.
Additionally, the prior medical opinion relied on by Gebhard did not support a
finding that she suffered from a disabling impairment.
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The ALJ did not err in rejecting testimony from a consultative medical
examiner that Gebhard had limitations associated with fingering and raising her
left arm based on the opinion of a nurse practitioner. The ALJ observed that,
contrary to the consultative examiner’s testimony, there was no medical evidence
that Gebhard suffered from carpal tunnel syndrome. The ALJ correctly concluded
that there were no objective medical tests supporting these limitations, and
Gebhard confirmed that she did not have carpal tunnel syndrome.
The ALJ provided the requisite germane reasons for affording only “some
weight” to the opinion of a nurse practitioner stating that Gebhard was not capable
of fully performing sedentary exertion. See Revels v. Berryhill, 874 F.3d 648, 655
(9th Cir. 2017) (explaining that “an ALJ may give less deference” to those “not
within the definition of acceptable medical sources . . . if the ALJ gives reasons
germane . . . for doing so”) (citation and internal quotation marks omitted). The
ALJ reasonably concluded that the functional limitations questionnaire completed
by the nurse practitioner lacked any supporting physical examinations or testing
indicating that Gebhard was limited to restricted sedentary exertion.
The ALJ provided specific and convincing reasons for finding Gebhard “not
entirely credible.” The ALJ’s decision was supported by Gebhard’s daily activities
reflecting that she could perform at least sedentary work, her inconsistent
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testimony regarding the reason she was dismissed from her prior employment, the
lack of supporting medical evidence, and the fact that she sought work while
collecting unemployment benefits. See Rollins v. Massanari, 261 F.3d 853, 857
(9th Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole
ground that it is not fully corroborated by objective medical evidence, the medical
evidence is still a relevant factor in determining the severity of the claimant’s pain
and its disabling effects. . . .”) (citation omitted); see also Trevizo v. Berryhill, 871
F.3d 664, 682 (9th Cir. 2017), as amended (“Engaging in daily activities that are
incompatible with the severity of symptoms alleged can support an adverse
credibility determination . . .”) (citation omitted); Ghanim v. Colvin, 763 F.3d
1154, 1165 (9th Cir. 2014) (“Continued receipt of unemployment benefits does
cast doubt on a claim of disability, as it shows that an applicant holds [herself] out
as capable of working. . . .”) (citation omitted).
Finally, the ALJ did not err in failing to consult a VE because Gebhard did
not demonstrate “sufficiently severe” non-exertional limitations that “significantly
limit[ed] the range of work permitted by [her] exertional limitations.” Hoopai v.
Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007).
AFFIRMED.
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