NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DYLAN J. WHITEHEAD, No. 19-35586
Plaintiff-Appellant, D.C. No. 3:18-cv-05542-BAT
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding
Submitted October 5, 2020**
Seattle, Washington
*
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).
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Before: GRABER and W. FLETCHER, Circuit Judges, and FREUDENTHAL,***
District Judge
Dylan J. Whitehead appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Whitehead’s applications for
disability insurance benefits and supplemental security income. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Whitehead contends that the ALJ afforded very little weight to
medical-psychological assessments prior to the alleged disability onset date. The
bare assertion that the evidence “provides a longitudinal perspective on
Whitehead’s mental impairments,” does not satisfy the burden to show error,
particularly considering this evidence’s limited relevance. See Carmickle v.
Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions
that predate the alleged onset of disability are of limited relevance.”).
2. Whitehead complains that the ALJ discounted certain opinions from
five examining psychologists that were contradicted by other medical evidence and
evaluator assessments. In this situation, the ALJ must offer “specific and
legitimate reasons that are supported by substantial evidence in the record” for
rejecting a contradicted opinion. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir.
**
The Honorable Nancy D. Freudenthal, United States District Judge for
the District of Wyoming, sitting by designation.
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1995); see Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (stating the
substantial evidence standard).1 For the reasons that follow, the ALJ has satisfied
this standard.
In discounting Dr. Thompson’s opinion of marked limitation in Whitehead’s
ability to respond appropriately to usual work situations, the ALJ noted the lack of
any opinion that this or other limitations would preclude all work activities. The
remaining four contradicted opinions from Drs. Wingate, Truschel, Meagher, and
Kenderdine were discounted in part because the severity of symptoms reported by
those examiners was inconsistent with Whitehead’s lack of effort to seek and
continue prescribed therapy.
Whitehead argues that this reason is not legitimate because his lack of
treatment is explained by poor judgment caused by mental illness. See Garrison v.
Colvin, 759 F.3d 995, 1018 n.24 (9th Cir. 2014) (“[I]t is a questionable practice to
chastise one with a mental impairment for the exercise of poor judgment in seeking
1
The government’s repeated citation to INS v. Elias-Zacarias, 502 U.S. 478
(1992), is inapposite. The “substantial evidence” standard employed in Elias-
Zacarias is specific to this court’s review of final orders of removal. See 8 U.S.C.
§1252(b)(4)(B) (providing that, when reviewing a petition for review of a decision
of the Board of Immigration Appeals, the “administrative findings of fact are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary”). For non-removal cases, “substantial evidence . . . means—and
means only—such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek, 139 S. Ct. at 1154 (internal quotation
marks omitted).
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rehabilitation.” (internal quotation marks omitted)). However, the record shows
that Plaintiff liked therapy, found therapy useful, and was open to more therapy.
Plaintiff’s explanations for why he nonetheless did not undergo therapy on a
consistent basis were unpersuasive. Because Plaintiff’s failure to undergo
prescribed therapy is not caused by his mental impairment, the ALJ’s reason was
legitimate.
Further, the ALJ found that Whitehead’s alleged debilitating anxiety and
other mental symptoms were inconsistent with his performance on mental status
screenings, his ability to complete a range of tasks and activities independently, his
pursuit of job opportunities, and the months spent at an out-of-state spiritual retreat
center. Additionally, in rejecting Dr. Truschel’s Global Assessment of Functioning
(GAF) rating of 40, the ALJ explained that Truschel did not provide any specific,
function-by-function vocational limitations. In rejecting Dr. Meagher’s opinion
that Whitehead probably would not be capable of full-time work, the ALJ also
found the opinion was vague and inconsistent with Meagher’s own assessment of
mild to moderate limits in most functional realms, except for interaction with the
public. In rejecting Dr. Kenderdine’s opinion that Whitehead had marked
limitations in his ability to maintain attendance and appropriate behavior, the ALJ
further found that this was inconsistent with Kenderdine’s own notes that
Whitehead was capable of managing his activities of daily living. Because the
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ALJ provided specific, legitimate reasons supported by substantial evidence from
the record for discounting or rejecting the opinions at issue, the ALJ did not err in
his assessment of the contradicted medical opinions.
Whitehead also contends that the ALJ did not properly evaluate the
testimony from Drs. Asher and Layton. Other than this general challenge,
Whitehead fails to identify error in the ALJ’s evaluation of the testimony or any
limitations not captured by the Residual Functional Capacity (RFC) assessment.
3. Whitehead argues the ALJ’s failure to properly evaluate the medical
evidence tainted the evaluation of Whitehead’s testimony about disabling
symptoms and limitations. This argument is rejected because there is no error in
the ALJ’s assessment of the medical evidence.
4. The ALJ gave partial weight to the severity of the symptoms alleged
by two family members, finding that their statements were not entirely supported
by the medical record as a whole. Whitehead argues that this reason is not
germane to each witness. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)
(holding that, for an ALJ to “discount the testimony of the lay witnesses, he must
give reasons that are germane to each witness”). However, any error on this point
is harmless given that the lay statements about Whitehead’s disabling symptoms
were similar to Whitehead’s own testimony, and there was no error in discounting
that testimony. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th
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Cir. 2009) (holding that, because “the ALJ provided clear and convincing reasons
for rejecting [the claimant's] own subjective complaints, and because [the lay
witness's] testimony was similar to such complaints, it follows that the ALJ also
gave germane reasons for rejecting [the lay witness's] testimony”).
5. Whitehead challenges the RFC assessment and the finding of “not
disabled,” contending that the ALJ failed to properly evaluate the medical evidence
and credit Whitehead’s testimony and lay statements. This argument is rejected
because the RFC assessment accounts for all credible impairments and limitations
which were supported by substantial evidence in the record. See Bayliss v.
Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“We will affirm the ALJ’s
determination of [a claimant’s] RFC if the ALJ applied the proper legal standard
and his decision is supported by substantial evidence.”).
AFFIRMED.
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