Timothy Saenz v. Nancy Berryhill

FILED
NOT FOR PUBLICATION
MAR 31 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY SAENZ, No. 15-35799

Plaintiff-Appellant, D.C. No. 3:14-cv-01696-SI

v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding

Submitted March 29, 2017**

Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

Timothy Saenz appeals the district court’s judgment affirming 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

*
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 de novo, Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012), and we affirm.

The administrative law judge (“ALJ”) provided clear and convincing reasons

for partially rejecting Saenz’s testimony by stating that Saenz gave inconsistent

statements about his alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th

Cir. 2002) (ALJ is may rely on inconsistent statements about the use of alcohol to

reject a claimant’s testimony). Further, the ALJ did not err in considering the lack

of objective medical evidence to support Saenz’s assertions regarding the severity

of his limitations. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)

(“Although lack of medical evidence cannot form the sole basis for discounting

pain testimony, it is a factor that the ALJ can consider in his credibility analysis.”).

The ALJ provided specific and legitimate reasons, supported by substantial

evidence, for giving examining physician Donald Ramsthel’s contradicted opinion

very little weight by stating that Dr. Ramsthel’s opinion was not supported by any

contemporaneous medical evidence and that his opinion was based largely on

Saenz’s subjective complaints of pain. See Bayliss v. Barnhart, 427 F.3d 1211,

1216 (9th Cir. 2005) (ALJ need not accept a contradicted, self-reported opinion

that is inadequately supported by clinical findings); see also Tommasetti v. Astrue,

2
533 F.3d 1035, 1041 (9th Cir. 2008) (ALJ may reject a medical opinion relying

upon a claimant’s self-reporting that was properly discounted as not credible).

The ALJ provided germane reasons for only giving some weight to the

opinions of lay witnesses Idas Saenz and Jessica Fox by stating that their opinions

were either accounted for in the residual functional capacity or not supported by

the medical evidence. See Molina, 674 F.3d at 1114 (ALJ must give reasons that

are germane to each witness to discount competent lay witness testimony).

The ALJ did not err in relying upon the testimony of the vocational expert

(“VE”) in determining that Saenz could perform jobs that existed in significant

numbers in the national economy because the VE provided testimony based on his

experience and expertise about the type and number of jobs that Saenz could

perform. See Johnson v. Shalala, 60 F.3d 1428, 1436 (9th Cir. 1995) (a VE’s

expertise concerning the “existence and characteristics of jobs available” is

sufficient “to overcome the presumption drawn from the [Dictionary of

Occupational Titles]”); see also Bayliss, 427 F.3d at 1218 (no additional

foundation beyond a VE’s expertise is necessary to form the foundation of his

testimony).

AFFIRMED.