FILED
NOT FOR PUBLICATION MAY 07 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RUTH SHUEY, No. 11-35257
Plaintiff - Appellant, D.C. No. 9:10-cv-00059-JCL
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge, Presiding
Argued and Submitted April 11, 2012
Seattle, Washington
Before: HUG, D.W. NELSON, and CALLAHAN, Circuit Judges.
Ruth Shuey (“Shuey”) appeals the district court’s order affirming the
decision of the administrative law judge (“ALJ”) denying her application for
disability benefits. We review de novo the district court’s order affirming the
ALJ’s denial of benefits. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
2008). We may reverse the Commissioner’s decision only if it is not supported by
substantial evidence or is based on legal error. Robbins v. Soc. Sec. Admin., 466
F.3d 880, 882 (9th Cir. 2006). We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.1
Shuey argues that the ALJ erred at Step Two of the sequential analysis by
failing to articulate the requisite elements of the special technique for evaluating
mental impairments. Shuey raises this argument for the first time on appeal and
therefore has waived the issue. See Greger v. Barnhart, 464 F.3d 968, 973 (9th
Cir. 2006). We decline to consider the issue because manifest injustice will not
result from our compliance with the general waiver rule and because the law has
not changed during the pendency of this appeal. Id.
Shuey contends that the ALJ improperly discussed references, found in the
medical records, regarding her plans to go deer hunting and argues that the ALJ
took these references out of context, in violation of Widmark v. Barnhart, 454 F.3d
1063, 1067 (9th Cir. 2006), and Edlund v. Massanari, 253 F.3d 1152, 1159 (9th
Cir. 2001). The ALJ permissibly relied on Shuey’s activities, including her
hunting plans, as reasons to find her claims not fully credible. See Bray v. Comm’r
1
Because the parties are familiar with the facts underlying this appeal, we do
not recount the facts here.
2 11-35257
of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); see also 20 C.F.R. §
404.1529(c)(4). Moreover, unlike in Widmark and Edlund, this is not a case where
the ALJ failed to provide reasons for rejecting the opinion of an examining
physician or selectively relied on only part of an examining physician’s opinion
regarding functional limitations.
Shuey also argues that the ALJ erred when he noted the amount of money
Shuey was receiving in unemployability benefits and concluded that Shuey did not
appear highly motivated to look for work. It was not error for the ALJ to draw this
inference from uncontradicted evidence that Shuey was receiving $1,266.00 per
month in unemployability benefits. See Tommasetti, 533 F.3d at 1040 (holding
that it was not unreasonable for ALJ to infer that claimant may not have been
motivated to work due to his financial reserve).
Shuey contends that the ALJ erred by failing to properly address two lay
witness statements. Contrary to Shuey’s claims, the ALJ never stated that he was
rejecting Steve Shuey’s statement because Mr. Shuey was self-interested. The ALJ
provided germane reasons for not fully crediting Steve Shuey’s statement,
explaining that the statement was based on the claimant’s own subjective
allegations of her limitations and was not fully supported by the objective medical
3 11-35257
findings. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.
2009); Greger, 464 F.3d at 972.
The ALJ did err by failing to address Collin Thomson’s lay witness
statement. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053-54 (9th
Cir. 2006). However, the error was harmless because Thomson’s statement did not
describe any limitations beyond those that already had been described by Shuey
herself and validly rejected by the ALJ. See Molina v. Astrue, No. 10-16578, 2012
WL 1071637, at *13 (9th Cir. Apr. 2, 2012); Stout, 454 F.3d at 1056.
AFFIRMED.
4 11-35257