FILED
NOT FOR PUBLICATION
JAN 02 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERICA L. SMITH, No. 16-17077
Plaintiff-Appellant, D.C. No. 2:14-cv-00520-JAT
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, Senior District Judge, Presiding
Submitted December 28, 2018**
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Erica Smith appeals the district court’s order affirming the Commissioner of
Social Security’s denial of her application for disability insurance benefits and
supplemental security income under Titles II and XVI of the Social Security Act.
*
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).
We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review
de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm the
district court.
Smith argues that the ALJ erred by: (1) failing to give controlling weight to
the opinions of her treating physicians; (2) rejecting Smith’s symptom testimony
without providing clear and convincing reasons for doing so; and (3) rejecting
Smith’s husband’s testimony.
We address the second issue first because Smith’s symptom testimony was
central to determining the extent to which her diagnosed impairments affected her
functional capacity. The ALJ did not commit harmful error in discounting Smith’s
testimony. The ALJ applied the requisite two-step framework and cited specific,
clear, and convincing reasons for discounting Smith’s statements. See Trevizo v.
Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The ALJ cited conflicting statements
in Smith’s testimony, evidence that Smith’s reported daily activities contradicted
her claims of debilitating impairment, and contradictory medical evidence. See
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Bray v. Comm’r Soc. Sec.
Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
Regarding the weight given to Smith’s treating physicians, an ALJ may
usually reject a physician’s opinion when it lacks support from objective medical
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findings or relies upon the properly discounted subjective reports of a claimant.
Bayliss v. Barnhart, 427 F.3d 1211, 1216–17 (9th Cir. 2005). The nature of
fibromyalgia complicates the analysis because “[f]ibromyalgia is diagnosed
‘entirely on the basis of the patients’ reports of pain and other symptoms,’ and
‘there are no laboratory tests to confirm the diagnosis.’” Revels v. Berryhill, 874
F.3d 648, 663 (9th Cir. 2017) (citation omitted). “[A] person with fibromyalgia
may have ‘muscle strength, sensory functions, and reflexes [that] are normal.’” Id.
(citations omitted). The usual rules for assessing claimants’ credibility apply to
disability claims arising from a fibromyalgia diagnosis. See id. at 655.
The ALJ recognized that Smith’s fibromyalgia diagnosis was supported by
her medical record, but he discounted Dr. Sabahi’s opinion concerning the extent
of Smith’s impairment because it relied largely on Smith’s self-reports and because
Dr. Sabahi’s opinion was not supported by Smith’s medical record. Substantial
evidence supports the ALJ’s decision. Viewed as a whole, Smith’s medical record
includes numerous instances in which she described engaging in activities, on a
regular basis, that contradict Dr. Sabahi’s opinion regarding Smith’s degree of
impairment. Smith correctly notes that fibromyalgia symptoms can wax and wane,
but the ALJ did not cherry-pick the medical record and it contradicts several of her
symptom complaints. For example, the ALJ noted that Smith complains that her
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legs swell frequently but this symptom was not documented by her care providers.
She also complains of numbness in one foot, but she apparently had not mentioned
this symptom to her rheumatologist. Smith also reported to one care provider that
she works out several times each week, a level of activity that significantly differs
from the description she gave to Dr. Sabahi.
Smith argues that the ALJ erred by rejecting treating neurologist Dr. Aryal’s
opinion. But because Dr. Aryal’s check box form shows that objective evidence
did not support her opinion, the ALJ correctly concluded that Dr. Aryal relied, at
least in part, on Smith’s subjective reports. As explained, the contradictions
between Smith’s subjective reports and her medical records provide clear and
convincing reasons for discounting Dr. Aryal’s opinion.
The ALJ did not commit harmful error by discounting the lay testimony of
Smith’s husband. The ALJ found Mr. Smith’s statements unpersuasive for the
same reasons as Smith’s testimony. Where, as here, the lay witness and claimant
testimony is substantively similar, and the ALJ has properly discounted the
claimant’s testimony, the ALJ may rely upon the same reasons to reject lay
testimony. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.
2009).
AFFIRMED.
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