Filed: Mar. 09, 2020
Latest Update: Mar. 09, 2020
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LARRY C. TOULOU, No. 18-35294 Plaintiff-Appellant, D.C. No. 2:17-cv-00057-RHW v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Washington Robert H. Whaley, District Judge, Presiding Submitted March 5, 2020** Before: FARRIS, TROTT, and SILVERMAN, Circuit Judg
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LARRY C. TOULOU, No. 18-35294 Plaintiff-Appellant, D.C. No. 2:17-cv-00057-RHW v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Washington Robert H. Whaley, District Judge, Presiding Submitted March 5, 2020** Before: FARRIS, TROTT, and SILVERMAN, Circuit Judge..
More
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY C. TOULOU, No. 18-35294
Plaintiff-Appellant, D.C. No. 2:17-cv-00057-RHW
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Submitted March 5, 2020**
Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.
Larry C. Toulou appeals the district court’s affirmance of the Commissioner
of Social Security’s denial of his application for disability insurance benefits and
supplemental security income under Titles II and XVI of the Social Security Act.
We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review
*
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).
de novo, Attmore v. Colvin,
827 F.3d 872, 875 (9th Cir. 2016), and we affirm.
The ALJ provided clear and convincing reasons supported by substantial
evidence for discounting the April 2015 opinion, and giving partial weight to the
May 2015 opinion, of Dr. Moyer. See Trevizo v. Berryhill,
871 F.3d 664, 675 (9th
Cir. 2017). The ALJ properly discounted Dr. Moyer’s opinions as to exertional
and postural limitations because they were inconsistent with Toulou’s own
testimony concerning his physical limitations. See Rollins v. Massanari,
261 F.3d
853, 856 (9th Cir. 2001) (ALJ may properly reject a treating physician’s
assessment of limitations that is inconsistent with the claimant’s level of activity
and own reports of limitations).
The ALJ did not fail to recognize the nature of Dr. Moyer’s relationship with
Toulou as a treating physician. The ALJ acknowledged the treating nature of the
relationship, the duration, and addressed the supportability of the opinions by
referencing the treatment records relevant to range of motion and strength in the
left shoulder. As to Toulou’s argument that the ALJ did not address Dr. Moyer’s
statement that Toulou was capable of low stress jobs, because stress aggravates
pain, or Dr. Moyer’s check box indicating 4 or more absences a month, the ALJ is
not required to discuss every piece of evidence. Hiler v. Astrue,
687 F.3d 1208,
1212 (9th Cir. 2012); see also Thomas v. Barnhart,
278 F.3d 947, 957 (9th Cir.
2002) (holding that an ALJ need not accept the opinion of any physician, including
2 18-35294
a treating physician, if that opinion is brief, conclusory, and inadequately
supported by clinical findings).
The ALJ’s determination, based on the vocational expert’s testimony, that
Toulou could return to his past relevant work as a gaming monitor as generally
performed was supported by substantial evidence. An ALJ may use either the
“actually performed test” or “generally performed test” when evaluating a
claimant’s ability to perform past work. Stacy v. Colvin,
825 F.3d 563, 569 (9th
Cir. 2016). The vocational expert testified that Toulou could perform the job of
gaming monitor both as actually performed and generally performed. The
Dictionary of Occupational Titles description of the job contains no requirement
that the employee make arrests or detain individuals and further supports the
conclusion that Toulou could perform the job as generally performed. Toulou had
the burden at step four of showing that he could no longer perform his past relevant
work as generally performed, and he did not meet that burden. See Pinto v.
Massanari,
249 F.3d 840, 844 (9th Cir. 2001) (“At step four, claimants have the
burden of showing that they can no longer perform their past relevant work.”).
This matter does not merit remand under sentence six of 42 U.S.C. § 405(g)
based on the later award of benefits, because the later award is not inconsistent and
not material evidence in regard to the denial at issue here, which occurred nearly
two years prior to the later award. The later award also included an onset date of
3 18-35294
February 2017, which is eighteen months after the ALJ’s decision was issued in
August 2015, and was based on subsequent medical evidence. See Bruton v.
Massanari,
268 F.3d 824, 827 (9th Cir. 2001) (a later award based on different
medical evidence and a different time period was not inconsistent and did not
require remand).
AFFIRMED.
4 18-35294