FILED
NOT FOR PUBLICATION
DEC 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA JONES, No. 14-36099
Plaintiff-Appellant, D.C. No. 6:13-cv-00843-BR
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted December 27, 2017**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Veronica Jones appeals the district court’s affirmance of the Commissioner
of Social Security’s denial of her application for disability insurance benefits under
Titles II and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291 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 administrative law judge (“ALJ”) did not err in discounting Jones’
testimony concerning the extent of her symptoms and their limiting effects. The
ALJ applied the requisite two-step framework and cited specific, clear, and
convincing reasons for discounting portions of Jones’ testimony. See Trevizo v.
Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The ALJ cited evidence that Jones
had stopped working due to a lay-off rather than for health reasons, Jones had
appeared to exaggerate her symptoms and their effects, Jones’ course of treatment
was relatively conservative, Jones had failed to seek and comply with medical
treatment for some of her alleged symptoms, and Jones’ symptoms were alleviated
or controlled when she did follow her prescribed treatment.
Although Jones alleges several errors concerning the ALJ’s reasons for
discounting her testimony, they all lack merit. While Jones takes issue with the
ALJ’s reliance on her failure to seek adjustments to her CPAP machine despite her
treatments providers’ advice, arguing she could not take this additional action
because she could not manage her own activities of daily living, her reported daily
activities and ability to keep her doctors’ appointments during this time contradict
her argument.
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Jones’ objection to the ALJ including his own observations that Jones was
able to sit through the entire hearing without changing position or displaying signs
of pain also fails. While an “ALJ’s observations of a claimant’s functioning may
not form the sole basis for discrediting a person’s testimony,” they may be used in
“the overall evaluation of the individual’s statements,” as the ALJ did here. See
Orn v. Astrue, 495 F.3d 625, 639–40 (9th Cir. 2007) (citation omitted).
The ALJ also reasonably concluded that despite Jones’ testimony that she
uses a walker, she was not prescribed one, as the medical record indicates her
physical therapist recommended she use a walker for exercises as part of her
treatment plan, rather than as a device to assist with mobility. We “may not engage
in second-guessing” the ALJ’s credibility interpretation where it rests upon a
reasonable interpretation of the record. See Thomas v. Barnhart, 278 F.3d 947,
959 (9th Cir. 2002).
Lastly, even if the ALJ was mistaken in his statement that the record does
not show Jones missed any medical appointments due to her alleged forgetfulness,
this error was harmless, as the ALJ’s other reasons for discounting her testimony
remain supported by substantial evidence. See Bray v. Comm’r Soc. Sec. Admin.,
554 F.3d 1219, 1227 (9th Cir. 2009).
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The ALJ did not err by discounting the opinion of examining physician Dr.
Coelho in favor of consulting physician Dr. Berner’s opinion. An “ALJ may reject
the testimony of an examining, but non-treating physician, in favor of a
nonexamining, nontreating physician when he gives specific, legitimate reasons for
doing so, and those reasons are supported by substantial record evidence.” Roberts
v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). The ALJ properly supported his
evaluation of this medical evidence by pointing out how Dr. Coelho’s opinion
conflicted with the ALJ’s own observations of the claimant and with other
objective medical evidence in the record.
The ALJ also did not err by discounting the evidence from examining
psychologist Dr. Roman. The ALJ proffered specific and legitimate reasons
supported by substantial evidence in the record for rejecting Dr. Roman’s
contradicted opinion, including inconsistencies within Dr. Roman’s evidence,
inconsistencies between this opinion and other medical evidence in the record, and
inconsistencies between Jones’ own testimony and Dr. Roman’s opinion. See
Trevizo, 871 F.3d at 675. The ALJ’s interpretation that the opinion of Dr. Roman,
who assigned Jones a Global Assessment of Functioning (“GAF”) score of 50 and
concluded Jones demonstrated serious symptoms, conflicted with the opinion of
Dr. Schur, who found Jones had a GAF score of 55 and displayed only moderate
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symptoms, was reasonable. Therefore, we uphold the ALJ’s interpretation. See
Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008).
Despite Jones’ arguments to the contrary, the ALJ did not cherry-pick
isolated examples of improvement of Jones’ symptoms as evidence that contradicts
Dr. Roman’s opinion. The instances the ALJ pointed to spanned several months.
Furthermore, several counter examples Jones cites are of limited relevance because
two predate her alleged disability onset date and one involves a period when Jones
had run out of her depression medication. See Carmickle v. Comm’r, Soc. Sec.
Admin., 533 F.3d 1164–65 (9th Cir. 2008). In short, the ALJ fulfilled his obligation
to resolve conflicting medical evidence in Jones’ record, see Tommasetti v. Astrue,
533 F.3d 1035, 1041–42 (9th Cir. 2008), and we uphold his rational interpretation
of the evidence, see Ryan, 528 F.3d at 1198.
AFFIRMED.
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