FILED
NOT FOR PUBLICATION
JUN 07 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TYLER N. THOMAS, No. 17-35822
Plaintiff-Appellant, D.C. No. 2:16-cv-01429-TLF
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Theresa Lauren Fricke, Magistrate Judge, Presiding
Submitted June 5, 2019**
Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges
Tyler Thomas appeals the district court’s order affirming the Social Security
Administration’s denial of disability benefits. We have jurisdiction pursuant to 28
*
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).
U.S.C. § 1291. We review the district court’s order de novo and the agency’s
decision for substantial evidence and legal error. Molina v. Astrue, 674 F.3d 1104,
1110 (9th Cir. 2012). We affirm.
The ALJ’s finding that mental impairments were mild is supported by the
mental health records. In any event, the ALJ considered the combined impact of
all impairments. Therefore, any error in finding only mild mental impairments at
step two would be harmless in this case. Buck v. Berryhill, 869 F.3d 1040, 1048-
49 (9th Cir. 2017). Moreover, the ALJ incorporated the mental limitations noted
by the experts into the residual functional capacity assessment by limiting Thomas
to unskilled work with only occasional public interaction. As a result, the ALJ
properly assessed mental limitations. Stubbs-Danielson v. Astrue, 539 F.3d 1169,
1173-74 (9th Cir. 2008).
The ALJ considered the medical evidence and did not err by giving weight
to the opinions of Dan Phan, M.D., and Brenda Havellana, Ph.D., who examined
Thomas. These opinions were entitled to more weight than those of the mental
health professionals who only reviewed the records. Ghanim v. Colvin, 763 F3.d
1154, 1160 (9th Cir. 2014). Contrary to Thomas’s claim, both doctors’ opinions
were supported by examination findings and were consistent with treatment
records and the record as a whole.
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The ALJ gave specific, clear and convincing reasons supported by
substantial evidence for finding that Thomas was not entirely credible: (1) Thomas
stopped working for reasons other than disability; (2) the testimony conflicted with
the clinical findings in the record; (3) Thomas failed to seek or follow prescribed
treatment for allegedly disabling pain; and (4) the testimony was inconsistent with
daily living activities. The ALJ could reject the testimony for these reasons.
Molina, 674 F.3d at 1112-13; Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.
2001). Moreover, the record was sufficiently developed for the ALJ to reasonably
conclude that claims of disabling anxiety and back pain were inconsistent with
daily living activities, including the ability to obtain a two-year community college
degree, shop for one or two hours at a time, work on a farm, play pool weekly in a
pool league, and occasionally golf.
Nor did the ALJ otherwise fail to develop the record. The ALJ questioned
Thomas about additional evidence, left the record open after the hearing, added
new treatment records after the hearing, and considered the new evidence. An ALJ
may discharge his duty to develop the record by keeping the record open after the
hearing to allow supplementation of the record. Tonapetyan v. Halter, 242 F.3d
1144, 1150 (9th Cir. 2001). The final administrative record is not ambiguous.
Mental and medical experts examined Thomas and filled out residual functional
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capacity assessments that were consistent with treatment records and the record as
a whole. Id. (noting that ambiguity triggers a duty to develop the record).
The ALJ also gave a germane reason for finding that Marisue Thomas was
not credible. Her statements conflicted with treatment records, which noted that
Thomas was not in distress, could ambulate without difficulty, and could maintain
attention and interact with other people. The ALJ could rely on the inconsistency
between the statements and medical evidence to reject the lay testimony. Bayless
v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
Because the residual functional capacity assessment was supported by
substantial evidence and the ALJ incorporated the supported limitations into the
questions to the vocational expert, the ALJ did not err in finding that Thomas could
perform other work. Id. at 1217.
AFFIRMED.
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