FILED
NOT FOR PUBLICATION
JUL 20 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM T. SMITH, No. 17-35645
Plaintiff-Appellant, D.C. No. 3:16-cv-05480-TLF
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Theresa Lauren Fricke, Magistrate Judge, Presiding
Submitted July 13, 2018**
Seattle, Washington
Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA,*** 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 Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
William Thomas Smith appeals the district court’s order affirming the
determination that he was ineligible for Social Security disability benefits under
Title II and Title XVI of the Social Security Act. We affirm.
1. The district court held that many of Smith’s arguments had been waived by
failure to present them properly to the district court. In his opening brief to us,
Smith did not discuss or directly challenge the district court’s holding, so that
argument was waived on appeal. Though our review may be de novo, the failure
to present and exhaust arguments to the district court is an independent basis for
rejecting them. Discussing the district court’s holding in the reply brief is too late.
See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994). Even if not waived for
this reason, Smith presents those challenges in the same conclusory manner that
led the district court to conclude that the arguments had been insufficiently
presented and were thus waived, and we agree with the district court’s assessment.
Because he failed to present them with the requisite specificity in his opening brief,
Smith’s challenges to the Administrative Law Judge’s (ALJ) treatment of the
records from Debra Sanchez, Ph.D., Donna Smith, Psy.D., C. Richard Johnson,
M.D., Daniel M. Neims, Ph.D., Carl Redick, Psy.D., Elizabeth Bain, Ph.D.,
Charles Lee, M.D., and Coral Hilby, M.D., as well as the ALJ’s assessment of
2
Smith’s Global Assessment of Functioning (GAF) scores, are waived.1 Carmickle
v. Comm’r, Soc. Sec. Admin, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008); see also
Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (failure to raise an
argument before the district court waives that argument on appeal).
2. The ALJ found that Smith’s testimony was “not entirely credible,” and he
provided “specific, clear and convincing reasons for doing so.” Lingenfelter v.
Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (internal quotation marks omitted).
With regard to Smith’s alleged physical impairments, the ALJ cited evidence of
some limitations in Smith’s upper extremities, but also explained that he had a
“normal gait and intact strength,” and that the only medication he ever took for his
pain was ibuprofen. See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir.
2008) (stating that a favorable response to “conservative treatment undermines [the
claimant’s] reports regarding the disabling nature of his pain”). The ALJ also
noted Smith’s alleged ankle pain, but medical records showed a full range of
motion in his ankle, as well as his back. Moreover, the ALJ pointed to specific
1
For the same reasons, Smith’s conclusory argument about the treatment
notes and evaluations from “Dr. Kaiyala, Dr. Neher, Dr. LaRue, Dr. Lee, Dr.
Ziskin, . . . Ms. Corley-Wheeler, Mr. Conn, Mr. Throckmorton, Mr. Curtis, Dr.
Sanchez Metz, Mr. Milloy, Mr. MacWilliam, Mr. Carter, and Mr. Guidry” is
waived.
3
parts of the record that showed that Smith’s activities were inconsistent with his
alleged symptoms and disabling physical impairments.
With regard to Smith’s mental health, the ALJ explained a particularly
severe incident in 2005, but provided clear and convincing reasons for why this did
not reflect the overall record. In particular, the ALJ explained that the medical
records showed that, even when faced with stressful situations, Smith’s attitude
and appearance were within normal limits. And the ALJ made detailed findings
about Smith’s social functioning, and found that Smith “could have at least
superficial interaction with coworkers and the public within [his] residual
functional capacity.” Smith’s specific arguments challenging the ALJ’s credibility
determination are either conclusory or misrepresent the ALJ’s findings.
3. The ALJ gave clear and convincing reasons supported by substantial
evidence for giving little weight to the records from Sule Karakus, M.D., Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1996), namely, a series of contradictions in Dr.
Karakus’s own treatment records and heavy reliance on Smith’s “less than credible
subjective complaints.”
Second, the ALJ provided specific and legitimate reasons supported by
substantial evidence for the weight he assigned to Smith’s examining doctors’
records. See id. at 830-31. The ALJ explained that Ted Stagner, Psy.D.,
4
performed his examination while Smith was involuntarily committed for
psychiatric treatment in 2005 and that Dr. Stagner’s records did not align with
Smith’s reported activities or with other medical records. The ALJ gave some
weight to the examination performed by Andrew Opalenik, D.O., because of
inconsistencies between his consultative examination and assessment form, and
because his opinion was contradicted by Gary Gaffield, D.O. And the ALJ gave
great weight to the consultative examination performed by Dr. Gaffield because his
opinion was consistent with other opinions in the record and with Smith’s reported
activities.
Third, the ALJ gave germane reasons supported by substantial evidence for
discounting the opinions of “other sources.” Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012). Tadeug Doviak, M.A., did not perform a mental examination
and the ALJ found that his assessment relied too heavily on Smith’s subjective
complaints.2 The ALJ also gave little weight to the physical examination report
from Kathryn Shaw, ARNP, because she was not an acceptable medical source and
because her report conflicted with Dr. Gaffield’s opinion. 20 C.F.R.
2
There is no evidence in the record that Doviak was an acceptable medical
source. See POMS DI 22505.004 (explaining requisite credentials for
psychologists); Warre v. Comm’r of Soc. Sec. Admin, 439 F.3d 1001, 1005 (9th
Cir. 2006) (“The POMS does not have the force of law, but it is persuasive
authority.”).
5
§ 416.902(a)(7)-(8). And the ALJ did not err by failing to consider the records
from Shannon M. Tait, M.A., because she was not an acceptable medical source,
nor were her records significant or probative. See Molina, 674 F.3d at 1111
(stating that check-off forms that do not include explanations for the conclusions
stated therein may be rejected); Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,
1012 (9th Cir. 2003) (explaining that an “ALJ is not required to discuss evidence
that is neither significant nor probative”).
4. The ALJ provided germane reasons supported by substantial evidence for
assigning less value to the lay testimony from Smith’s mother, Beverley Starr, and
his former employer, Cheri Black. Stout v. Comm’r Soc. Sec. Admin, 454 F.3d
1050, 1053 (9th Cir. 2006). Starr failed to mention Smith’s history of alcohol
abuse and she completed the form shortly after Smith’s involuntary 2005
treatment. Black worked with Smith before his onset date and before he received
mental health treatment and medication.
5. The remainder of Smith’s arguments are equally unavailing. Smith
challenges the ALJ’s finding at step three based solely on the ALJ’s rejection of
Dr. Smith’s report, but any argument involving Dr. Smith was waived. Smith also
argues that, at steps four and five, the ALJ erred in his determination of his
Residual Functional Capacity (RFC) because he did not properly consider all of the
6
medical records. As explained above, the ALJ properly weighed the medical
evidence, and the RFC was supported by substantial evidence. Bayliss v. Barnhart,
427 F.3d 1211, 1217 (9th Cir. 2005). It follows that the ALJ’s reliance on the
vocational expert’s testimony was not in error. See id. (“The hypothetical that the
ALJ posed to the [vocational expert (VE)] contained all of the limitations that the
ALJ found credible and supported by substantial evidence in the record. The
ALJ’s reliance on testimony the VE gave in response to the hypothetical therefore
was proper.”). The ALJ did not err at steps four and five.
AFFIRMED.
7
William Smith v. Nancy Berryhill
Combined Opinion