NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL EBLEN, No. 18-35193
Plaintiff-Appellant, D.C. No. 6:16-cv-01678
v.
MEMORANDUM*
ANDREW SAUL, Commissioner of Social
Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael McShane, District Judge, Presiding
Submitted May 4, 2020**
Before: FARRIS, LEAVY, TROTT, Circuit Judges.
Michael Eblen appeals the district court’s affirmance of the Commissioner
of Social Security’s denial of his application for disability insurance benefits under
Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291
*
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).
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 ALJ properly evaluated the medical opinion evidence and provided
specific and legitimate reasons supported by substantial evidence to discount the
opinions of Eblen’s treating physicians. Trevizo v. Berryhill, 871 F.3d 664, 675
(9th Cir. 2017). The ALJ properly gave little weight to Dr. Steven Maness’s
opinion that Eblen was disabled because it was inconsistent with the objective
medical evidence, including Dr. Maness’s own treatment notes, and because the
record indicated that Dr. Maness had recommended conservative treatment. To
support this assessment, the ALJ referred to Dr. Maness’s treatment notes
indicating “relatively normal examination findings.” Though Dr. Maness noted
that Eblen had a positive Straight Leg Raise Test in February 2013, Dr. Maness
noted 4/5 strength in Eblen’s hamstring and 5/5 strength in the rest of his leg
muscles in that same visit. Eblen performed the Straight Leg Raise Test on many
other occasions, both prior to and subsequent to the February 2013 examination,
and his test results were negative on every other occasion. The ALJ also
permissibly concluded that Dr. Maness’s opinion was inconsistent with his
otherwise conservative recommendations of physical therapy and medication. See
Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995).
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The ALJ also gave specific and legitimate reasons for assigning little weight
to treating physician Dr. C. Mitchell Finch’s opinion that Eblen was disabled. See
Trevizo, 871 F.3d at 675. Substantial evidence supports this finding, including Dr.
Finch’s own relatively normal exam findings across six visits, during which Dr.
Finch noted negative straight leg tests at every exam in which this measure was
performed, and 5/5 strength in Eblen’s extremities. The ALJ’s concluded that Dr.
Finch formed his opinion without reference to the longitudinal record and based it
largely on Eblen’s subjective complaints “in lieu of objective exam findings.” That
conclusion was a rational interpretation of the medical record. See Bayliss v.
Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (substantial evidence supports an
ALJ’s decision to discount an opinion that is based on subjective complaints which
are otherwise not supported by clinical evidence). Dr. Finch did not examine
Eblen between authoring his identical April 2013 and March 2014 opinions,
further suggesting that these opinions were “inadequately supported by clinical
findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
The ALJ properly discounted Dr. Finch’s opinion that Eblen was “medically
disabled” because the ultimate determination of medical disability is reserved for
the Commissioner. 20 C.F.R. § 404.1527(d)(1). Additionally, the ALJ did not err
in giving Dr. Finch’s opinion little weight because of Eblen’s inconsistent
statements about Dr. Finch’s recommendation regarding surgery. The record is
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unclear regarding whether Eblen opted against surgery, as Dr. Finch’s notes
suggest, or whether Dr. Finch informed Eblen that surgery was not an option for
him, as Eblen testified. It is within the ALJ’s discretion to resolve such
ambiguities in the record. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
1989). The ALJ’s decision must be affirmed where, as here, the evidence is
“susceptible to more than one rational interpretation.” Id.
The ALJ properly gave great weight to consultative physician Dr. Martin
Kehrli’s opinion that Eblen was not disabled. Though an ALJ may not rely on the
opinion of a non-examining physician alone to reject the opinion of treating
physicians, see Revels v. Berryhill, 874 F.3d 648, 664 (9th Cir. 2017), an ALJ does
not err when she gives weight to a non-examining physician’s opinion that is
supported by other evidence in the record, including objective medical evidence
and inconsistencies between the claimant’s testimony and his statements to
physicians, see Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995). Here,
substantial evidence supported the ALJ’s consideration of Dr. Kehrli’s opinion.
See Magallanes, 881 F.2d at 752. The ALJ properly gave great weight to Dr.
Kehrli’s opinion because it was based on a longitudinal review of the record,
which included the relatively normal examination findings from Dr. Maness and
Dr. Finch. The ALJ also properly gave great weight to Dr. Kehrli’s opinion
because Dr. Kehrli considered the consistency between the medical evidence and
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Eblen’s reported activities of daily living, including Eblen’s ability to
independently care for his pet and drive multiple times weekly to visit family and
friends. Eblen’s objections to Dr. Kehrli’s qualifications were raised for the first
time on appeal and are therefore waived. See Greger v. Barnhart, 464 F.3d 968,
973 (9th Cir. 2006).
The ALJ gave specific, clear, and convincing reasons to discount Eblen’s
symptom testimony because she reasonably concluded that the record contradicted
Eblen’s alleged severity of his symptoms. See Orn v. Astrue, 495 F.3d 625, 639
(9th Cir 2007). The ALJ properly considered Eblen’s “prior inconsistent
statements concerning the symptoms, and other testimony by the claimant that
appears less than candid.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008). The ALJ noted several inconsistencies between Eblen’s testimony and the
evidence in the record, including the objective medical evidence, evidence of
conservative treatment, Eblen’s daily activities which displayed a higher level of
functioning than his symptoms would otherwise suggest, and inconsistencies
between statements Eblen made to his providers and statements he made in support
of his long-term disability insurance application. By detailing these
inconsistencies, which are supported by substantial evidence, the ALJ provided
clear and convincing reasons to discount Eblen’s testimony. See id.
AFFIRMED.
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