FILED
NOT FOR PUBLICATION
JUL 25 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JON JEFFERY HERRING, No. 16-35794
Plaintiff-Appellant, D.C. No. 6:15-cv-01453-CL
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Mark D. Clarke, Magistrate Judge, Presiding
Submitted July 23, 2018 **
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges,
Jon Herring appeals the district court’s order affirming the Social Security
Administration’s denial of his applications for Social Security and Supplemental
Security Income disability benefits. We have jurisdiction pursuant to 28 U.S.C. §
*
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).
1291. We review the district court’s order de novo and the agency’s decision for
substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1009–10 (9th Cir. 2014).
We affirm.
The ALJ provided clear and convincing reasons supported by substantial
evidence for giving less weight to the opinion of Dr. Dodson, a treating physician.
Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). The opinion was a cursory
check-the-box opinion that failed to provide any functional analysis in the
available comment sections, did not cite to and was not supported by objective
findings in Dr. Dodson’s medical notes, and was not supported by other objective
evidence or the record as a whole. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th
Cir. 2008) (allowing an ALJ to give less weight to a questionnaire opinion that is
based on a claimant’s subjective statements and is inconsistent with the treatment
records); Orn, 495 F.3d at 631 (providing that an ALJ may give less weight to an
opinion that is not “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” or is “inconsistent with other substantial evidence in [the]
case record”) (quoting 20 C.F.R. § 404.1527(d)(2)); Thomas v. Barnhart, 278 F.3d
947, 957 (9th Cir. 2002) (holding that an ALJ may give less weight to a treating
opinion that is “brief, conclusory, and inadequately supported by clinical
findings”); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (holding that an
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ALJ may reject a retrospective opinion that conflicts with medical evidence in the
record).
Contrary to Herring’s claim, the ALJ did not reject the opinion of Dr. Nolan,
who examined Herring one time at the request of the state agency. The ALJ
accepted the opinion with two modifications supported by Herring’s testimony.
Consistent with Herring’s testimony, the ALJ found that Herring could
occasionally lift 25 pounds, instead of the 20 pounds recommended by Dr. Nolan.
The ALJ also found that Herring could walk or stand for four hours, instead of the
two hours recommended by Dr. Nolan. To address Dr. Nolan’s concern that flares
in arthritis in Herring’s big toe joints could limit Herring’s ability to stand or walk,
the ALJ added two additional limits to the residual functional capacity assessment.
Consistent with Herring’s testimony and the medical evidence, the ALJ found that
Herring could change positions at will throughout the work day and could spend
the majority of his time seated when he experienced foot pain. The ALJ gave
sufficient reasons for altering Dr. Nolan’s assessment, and the findings are
supported by Herring’s testimony and the medical record.
The ALJ gave specific, clear and convincing reasons supported by
substantial evidence for discounting Herring’s testimony that his back symptoms,
including weakness and atrophy in his leg, had returned a week after back surgery
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and that he needed crutches to walk. Molina v. Astrue, 674 F.3d 1104, 1112 (9th
Cir. 2012). The testimony was inconsistent with the statements Herring made to
his treating doctors after surgery and with the post-surgical objective findings of
Dr. Hauck, the treating surgeon, and Dr. Nolan, the examining physician. Id.
(noting that inconsistent statements may provide substantial evidence to support an
adverse credibility determination); Carmickle v. v. Comm’r, Soc. Sec. Admin., 533
F.3d 1155, 1161 (9th Cir. 2008) (holding that “[c]ontradiction with the medical
record is a sufficient basis for rejecting the claimant’s subjective testimony”).
The ALJ also gave a specific, clear and convincing reason supported by
substantial evidence for not accepting Herring’s testimony that his back and foot
problems had significantly reduced the time that Herring could work. The
testimony was inconsistent with Herring’s other testimony and financial business
evidence. Molina, 674 F.3d at 1112 (noting that inconsistent statements may
provide substantial evidence to support an adverse credibility determination). The
ALJ’s finding that Herring continued to work at the same level that he worked
prior to his back problems and alleged onset date is supported by Herring’s
testimony, business income evidence, and tax returns.
Finally, the ALJ was not required to include properly rejected opinion
evidence or testimony in the hypothetical questions posed to the vocational expert.
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Bayliss v. Barnhart, 427 F.3d 1211, 1217–18 (9th Cir. 2005) (holding that an ALJ
may rely on the vocational expert’s testimony if the hypothetical question includes
all of the credible limitations supported by substantial evidence).
AFFIRMED.
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