Filed: Aug. 16, 2010
Latest Update: Feb. 21, 2020
Summary: FILED NOT FOR PUBLICATION AUG 16 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CLABURN M. LOCKWOOD, No. 09-35546 Plaintiff - Appellant, D.C. No. 3:07-cv-01838-KI v. MEMORANDUM* COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant - Appellee. Appeal from the United States District Court for the District of Oregon Garr M. King, Senior District Judge, Presiding Argued and Submitted May 3, 2010 Portland, Oregon Before: KLEINFELD, BEA, and IKU
Summary: FILED NOT FOR PUBLICATION AUG 16 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CLABURN M. LOCKWOOD, No. 09-35546 Plaintiff - Appellant, D.C. No. 3:07-cv-01838-KI v. MEMORANDUM* COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant - Appellee. Appeal from the United States District Court for the District of Oregon Garr M. King, Senior District Judge, Presiding Argued and Submitted May 3, 2010 Portland, Oregon Before: KLEINFELD, BEA, and IKUT..
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FILED
NOT FOR PUBLICATION AUG 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLABURN M. LOCKWOOD, No. 09-35546
Plaintiff - Appellant, D.C. No. 3:07-cv-01838-KI
v.
MEMORANDUM*
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Argued and Submitted May 3, 2010
Portland, Oregon
Before: KLEINFELD, BEA, and IKUTA, Circuit Judges.
Claburn Lockwood appeals from the district court’s order that affirmed the
Commissioner of the Social Security Administration’s final decision to deny
Lockwood’s applications for disability insurance benefits and supplemental
security income. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The ALJ did not fail adequately to develop the record. The denials of
Lockwood’s previous applications for disability insurance benefits and
supplemental security income were in the record on which the ALJ relied, as were
the records on which those denials were based. The ALJ’s duty to obtain medical
records from Dr. Loeb was not triggered because the evidence in the record was
not ambiguous, the ALJ did not find the record inadequate, and the ALJ did not
rely on the opinion of any medical experts who concluded the evidence was
ambiguous or inadequate. See Tonapetyan v. Halter,
242 F.3d 1144, 1150 (9th Cir.
2001). Even if the ALJ’s duty to obtain records from Dr. Loeb were triggered, the
ALJ satisfied the duty by giving Lockwood’s attorney the opportunity to obtain the
records. See
id. (“The ALJ may discharge this duty in several ways, including:
subpoenaing the claimant’s physicians, . . . continuing the hearing, or keeping the
record open after the hearing to allow supplementation of the record.”).
2. The ALJ did not err when she failed to mention in her decision the opinion
of Dr. Kaur-Jayaram, who treated Lockwood for lower back pain. An ALJ need
not discuss evidence that is not significant or probative. See Howard v. Barnhart,
341 F.3d 1006, 1012 (9th Cir. 2003); Vincent v. Heckler,
739 F.2d 1393, 1394–95
(9th Cir. 1984). Dr. Kaur-Jayaram’s opinion that Lockwood suffered from
incapacitating back pain and should be given time off and part-time work until her
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condition was “sorted out” was not probative because it pre-dated Lockwood’s
alleged disability onset date by more than eighteen months and pre-dated a
successful back surgery.
Nor did the ALJ err when she gave little weight to the opinion of treating
orthopedist Dr. Moller, who performed multiple knee surgeries on Lockwood.
“[A]n ALJ may discredit treating physicians’ opinions that are conclusory, brief,
and unsupported by the record as a whole . . . or by objective medical findings.”
Batson v. Comm’r,
359 F.3d 1190, 1195 (9th Cir. 2003). Dr. Moller’s opinion that
Lockwood was unable to perform regular work from March 2001 until April 2002
was conclusory, brief, and unaccompanied by an explanation.
3. The ALJ did not commit reversible error when she found Lockwood’s lack
of compliance with treatment undermined her testimony regarding the severity of
her symptoms. The ALJ was not required to apply Social Security Ruling (“SSR”)
82-59. An ALJ must follow the procedures mandated by SSR 82-59 only if the
applicant would otherwise be disabled within the meaning of the Act. Roberts v.
Shalala,
66 F.3d 179, 183 (9th Cir. 1995). Because the ALJ concluded that
Lockwood was not disabled, SSR 82-59 is inapplicable. The ALJ did not use
noncompliance as an independent basis for denial.
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The ALJ erred when she relied on Lockwood’s lack of compliance with
treatment as one reason to discount Lockwood’s testimony with respect to the
severity of her symptoms because the ALJ failed to discuss the possible reasons for
the noncompliance, such as the side effects of her medication—dizziness and
drowsiness. See SSR 96-7p; Carmickle v. Comm’r,
533 F.3d 1155, 1162 (9th Cir.
2008). However, this error was harmless because the ALJ’s other reasons for
finding Lockwood not credible were sufficient and were supported by substantial
evidence. See
Carmickle, 533 F.3d at 1162–63. For example, the ALJ explained
Lockwood’s active lifestyle was not consistent with her claims of debilitating pain,
depression, and an inability to sit, stand, or walk for more than brief periods. The
ALJ also explained Lockwood had a poor work history even prior to her alleged
disability onset date.
4. The ALJ adequately explained her decision to discount portions of James
McCormick’s lay witness statement. See Stout v. Comm’r,
454 F.3d 1050, 1053
(9th Cir. 2006) (holding that an ALJ cannot discount the testimony of a lay witness
unless the ALJ gives reasons germane to that witness). Here, McCormick wrote
that Lockwood was limited in the amount of time she could walk and stand during
the day. The ALJ discounted this statement because it was not consistent with
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Lockwood’s active lifestyle, which included traveling, biking, housework,
gardening, yoga, swimming, dancing, and hula-hooping.
The ALJ erred when she failed to discuss Barbara Hermens’s lay witness
statement. Harmless error analysis applies when an ALJ disregards a lay witness’s
testimony without comment.
Id. at 1054 (“[W]here the ALJ’s error lies in a failure
to properly discuss competent lay testimony favorable to a claimant, a reviewing
court cannot consider the error harmless unless it can confidently conclude that no
reasonable ALJ, when fully crediting the testimony, could have reached a different
disability determination.”). Here, the ALJ’s error was harmless because even if the
ALJ had fully credited Hermens’s statement, the ALJ would not have altered her
finding with respect to Lockwood’s residual functional capacity. Hermens’s
statement was internally inconsistent: she explained that Lockwood can no longer
take bike trips, does not take walks because of her knee surgery, and does not get
any other type of exercise, but she also explained that Lockwood cannot drive due
to her bad back and, thus, gets around by walking, biking, and busing. Further,
nothing in Hermens’s statement directly contradicts the ALJ’s finding with respect
to Lockwood’s residual functional capacity.
5. The ALJ did not commit reversible error when she failed to make an explicit
finding as to whether Lockwood had bipolar disorder. Even if we assume that the
5
omission constituted legal error, “it could only have prejudiced [Lockwood] in step
3 (listing impairment determination) or step five (RFC) because the other steps,
including [step 2], were resolved in her favor.” Burch v. Barnhart,
400 F.3d 676,
682 (9th Cir. 2005). Lockwood was not prejudiced at Step 3 because she satisfied
none of the paragraph B criteria1 and, thus, her bipolar disorder did not meet or
equal a listed impairment. See 20 C.F.R. Part 404, Subpt. P, App. 1 § 12.04B.
Further, Lockwood was not prejudiced at Step 5 because the ALJ considered the
effect Lockwood’s depressive disorder had on her residual functional capacity.
Lockwood identified no functional limitations posed by bipolar disorder that the
ALJ did not already consider with respect to Lockwood’s depressive disorder. See
Burch, 400 F.3d at 684 (holding that the ALJ adequately considered the claimant’s
impairment where the claimant “ha[d] not set forth, and there [was] no evidence in
the record, of any functional limitations as a result of [the impairment] that the ALJ
failed to consider”).
AFFIRMED.
1
Paragraph B is satisfied when a claimant proves an impairment results in at
least two of the following: “1. Marked restriction of activities of daily living; or 2.
Marked difficulties in maintaining social functioning; or 3. Marked difficulties in
maintaining concentration, persistence, or pace; or 4. Repeated episodes of
decompensation, each of extended duration[.]” 20 C.F.R. Part 404, Subpt. P, App.
1 § 12.04B.
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