Lisa Mcgee, o/b/o DARRIN J. MCGEE (deceased) v. MICHAEL J. ASTRUE, Commissioner of Social Security

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LISA MCGEE, o/b/o DARRIN J. MCGEE
(deceased),
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
No. 09-35253
D.C. No. 3:08-cv-05237-RBL
MEMORANDUM *
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted February 5, 2010**
Seattle, Washington
Before: ALARCÓN, W. FLETCHER, and RAWLINSON, Circuit Judges.
Appellant Lisa McGee (Ms. McGee), on behalf of her deceased spouse
Darrin McGee (McGee), challenges the district court’s judgment upholding
FILED
MAR 03 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Appellee Commissioner of Social Security’s (Commissioner) determination that
McGee was not disabled.
1. Any error made by the Administrative Law Judge (ALJ) in omitting
chronic pain, chronic fatigue, and anemia from the list of McGee’s impairments
was harmless because the ALJ considered those limitations when determining
McGee’s Residual Functional Capacity (RFC). See Lewis v. Astrue, 498 F.3d 909,
911 (9th Cir. 2007), as amended. The record establishes that the ALJ reviewed all
the evidence before him in considering McGee’s functional limitations.
2. The ALJ did not err in determining that McGee’s kidney and cardiac
conditions were non-severe, or in its consideration of any limitations caused by
these impairments. The ALJ considered all relevant evidence regarding McGee’s
kidney and cardiac conditions, and “the medical record does not establish any
work-related limitations as a result of [these] impairments.” Carmickle v. Commr,
Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (citation omitted).

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3. The ALJ provided clear and convincing reasons for discounting McGee’s
subjective testimony regarding his symptoms and limitations. See Morgan v.
Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).
4. Contrary to McGee’s assertion, the ALJ did not improperly weigh the
medical evidence because “substantial evidence supports the finding that [McGee],
although physically [and mentally] impaired, [was] not disabled . . .” Matthews v.
Shalala, 10 F.3d 678, 680 (9th Cir. 1993). The ALJ extensively discussed and
considered the medical evaluations in the record. He either considered the medical
evaluations as evidence establishing McGee’s impairments, or discussed how these
evaluations weighed against a disability finding. Importantly, none of the
physicians who examined McGee “expressed the opinion that [McGee] was totally
disabled” or that he could not return to work. Id. The ALJ also properly
discounted Dr. Ramsthel’s opinion by providing “specific and legitimate reasons
that are supported by substantial evidence in the record,” namely that Dr.
Ramsthel’s opinion was founded on McGee’s subjective complaints. Lester v.
Chater, 81 F.3d 821, 830-31 (9th Cir. 1996), as amended (citation omitted).

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5. The ALJ did not err in discounting Mr. Spafford’s evaluation. As a
licensed clinical social worker, Mr. Spafford is not considered an “acceptable
medical source.” See 20 C.F.R. § 404.1513(a); 20 C.F.R. § 416.913(a). Therefore,
the ALJ was entitled to discount the weight accorded to Mr. Spafford’s opinion.
Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). The ALJ concluded that
McGee’s level of activity was inconsistent with Mr. Spafford’s opinion. This
alone was an appropriate basis for discounting Mr. Spafford’s opinion. See Rollins
v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).
6. The ALJ did not improperly assess the lay witness evidence. He
considered all the lay testimony, and weighed it in light of the other evidence in the
record.
7. The ALJ did not err in determining McGee’s RFC. He “took into
account those limitations for which there was record support that did not depend on
[McGee’s] subjective complaints.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th
Cir. 2005). The ALJ’s RFC determination was supported by substantial evidence
in the record. See id.

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8. The ALJ did not pose an improper hypothetical to the vocational expert.
The hypothetical “only include[d] those limitations supported by substantial
evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006)
(citation omitted).
AFFIRMED.

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