NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBRA A. JONES, No. 18-35506
Plaintiff-Appellant, D.C. No. 2:17-cv-00965-BAT
v.
ANDREW M. SAUL, Commissioner of
Social Security, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington,
Brian A. Tsuchida, Magistrate Judge, Presiding
Submitted July 10, 2020**
Seattle, Washington
Before: NGUYEN and BUMATAY, Circuit Judges, and SEEBORG,*** 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 Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
1
Debra Jones appeals the Commissioner of Social Security’s denial of
disability benefits. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Although Jones suffers from fibromyalgia, which is diagnosed “entirely on
the basis of patients’ reports of pain and other symptoms,” Benecke v. Barnhart,
379 F.3d 587, 590 (9th Cir. 2004), substantial evidence supports the Administrative
Law Judge’s (“ALJ”) conclusion that Jones’s physical examination findings were
inconsistent with her complaints. For example, while Jones complained of constant
pain, multiple doctors indicated that she was in no pain during examinations. The
ALJ also noted that, although Jones claimed she was disabled, she also certified to
the State of Washington that she was able to work full time for purposes of
unemployment benefits. This is a basis to find Jones not credible. See Carmickle v.
Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161–62 (9th Cir. 2008). Accordingly,
substantial evidence supports the ALJ’s decision to discount Jones’s subjective
complaints.
2. Although the ALJ did not address the lay testimony of Jones’s roommate,
the ALJ specifically incorporated Jones’s prior ALJ decision, which discounted that
testimony. The prior decision assigned Jones’s roommate’s testimony little
probative value since it was based largely on Jones’s self-reported claims. We agree
with the district court that there was nothing improper with the ALJ incorporating
the prior decision.
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3. Substantial evidence also supports the ALJ’s assignment of little weight to
the opinions of treating physician Dr. Neiman. The ALJ noted a discrepancy
between Dr. Neiman’s two opinions, which were given only a month apart,
regarding Jones’s ability to work. In January 2011, Dr. Neiman opined that Jones
could work six to seven hours per day. But, in February 2011, Dr. Neiman claimed
in an unemployment form that Jones could work neither full nor part time since
November 2010. The ALJ also pointed out differences between a declaration
submitted by Dr. Neiman and a draft of that declaration. Dr. Neiman struck parts of
the draft declaration, prepared by Jones’s attorney, that described Jones’s limitations
as more severe than his assertions in the final declaration. For example, Dr. Neiman
averred that Jones’s self-described inability to work was “reasonable” in the final
declaration, but the draft declaration included the assertion that Dr. Neiman believed
that Jones was unable to work in any capacity. Accordingly, the ALJ concluded that
the differences in the declarations indicated Dr. Neiman’s reluctance to describe
Jones as disabled. These were specific and legitimate reasons to discount Dr.
Neiman’s opinions.
4. The ALJ also gave little weight to the opinion of Dr. Kim Liu, the
consultative examining physician, since the opinion lacked clinical support and
relied on Jones’s subjective complaints. As the ALJ properly noted, Dr. Liu’s
opinion was based in part on Jones’s report of being in “constant” pain, even though
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Dr. Liu observed that Jones did not complain of pain during her examination.
Moreover, another examining physician, Dr. Sara Dick, more recently found that
Jones had “no palpable tenderness.” These were specific and legitimate reasons to
discount Dr. Liu’s opinion.
5. Since we find no error in the ALJ’s assessment of the medical and
testimonial evidence, substantial evidence supports the ALJ’s RFC determination
and step-four finding.
6. Finally, the new evidence submitted by Jones to the Appeals Council did
not undermine the ALJ’s finding that Jones could perform some of her past jobs.
About half a year after the ALJ’s decision, Jones submitted a declaration in which
she claimed that she could only work seated with the accommodation of a bariatric
chair. We must consider whether substantial evidence, in light of the new evidence,
supports the Commissioner’s final decision. See Brewes v. Comm’r of Soc. Sec.
Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). The new evidence does not disturb
the conclusion that Jones was not disabled. Jones did not claim she used such a chair
in her past jobs when her weight was roughly the same. Nor did any of Jones’s
physicians report any difficulties with her sitting in a normal-sized chair, and the
ALJ found Jones’s subjective reports about her pain to be not fully credible. The
district court, therefore, properly concluded that the new evidence does not
necessitate remand.
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AFFIRMED.
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