Linda M. Rayment v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDA M. RAYMENT,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 17-35015
D.C. No. 3:15-cv-05904-JRC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
J. Richard Creatura, Magistrate Judge, Presiding
Submitted October 25, 2018**
Before: GOODWIN, FARRIS, and LEAVY, Circuit Judges
Linda M. Rayment appeals the district court’s judgment affirming the
Commissioner of Social Security’s decision denying Rayment’s application for
disability insurance benefits under Title II of the Social Security Act. We review
de novo, Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017), and we affirm.
* 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).
FILED
OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The Administrative Law Judge (ALJ) reasonably gave “little weight” to Dr.
Allen’s September 2007 opinion because it contained only recommendations for
returning to work and failed to identify specific functional limitations. See Rounds
v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1005-06 (9th Cir. 2015) (explaining
that the ALJ need not consider a recommendation in the absence of specific and
identified functional limitations).
The ALJ reasonably gave “little weight” to Dr. Lang’s opinions that
Rayment was unable to work or was limited to part-time work because these
opinions were inconsistent with Dr. Lang’s own treatment notes encouraging
Rayment to return to work, the treatment record showing only mild back
impairments, and Rayment’s activities, including spending time at the casino. See
Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014) (conflict with the
treatment record and the claimant’s activities are specific and legitimate reasons to
reject a treating physician’s opinion); Tommasetti v. Astrue, 533 F.3d 1035, 1041
(9th Cir. 2008) (inconsistency with the physician’s own treatment notes is a
specific and legitimate reason to reject their opinion).
To the extent that the ALJ rejected Mr. Mertens and Ms. Lang’s opinion
regarding Rayment’s ability to walk and sit, the ALJ provided germane reasons:
lack of support by clinical observations, evidence of Rayment’s secondary gain
motive, and inconsistency with Rayment’s activities. See Revels v. Berryhill, 874

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F.3d 648, 665 (9th Cir. 2017) (explaining that germane reasons are required to
reject a physical therapist’s opinion); Rounds, 807 F.3d at 1007 (evidence of
secondary gain motive); Ghanim, 763 F.3d at 1162 (inconsistency with claimant’s
activities); Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (lack of support
by clinical findings).
The ALJ reasonably rejected Ms. Scheuffele’s opinion because it relied on
findings that post-dated Rayment’s date last insured, and the opinion was
inconsistent with evidence during the relevant period. See Turner v. Comm’r of
Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (concluding that the ALJ properly
rejected a medical opinion from a non-acceptable source because it post-dated the
relevant period for establishing disability).
The ALJ gave clear and convincing reasons for discrediting Rayment’s
testimony as to the extent of her limitations. See Molina, 674 F.3d at 1112
(requiring clear and convincing reasons to discredit claimant testimony). First, the
ALJ reasonably concluded that Rayment’s testimony was unsupported by the
objective medical evidence, which showed only mild back impairments and mild
limitations in range of motion. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir.
2005) (explaining that the ALJ may not rely solely on lack of supporting objective
evidence to discredit claimant testimony but may include it as a factor). Second,
the ALJ reasonably concluded that Rayment’s activities, including going to the

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casino three times per week for two hours and walking with friends, were
inconsistent with the extent of her alleged limitations. See Molina, 674 F.3d at
1113 (inconsistency with activities is a proper reason to discredit claimant
testimony). Any error in relying on additional reasons was harmless because the
ALJ properly provided clear and convincing reasons to discredit Rayment’s
testimony. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir.
2009).
The ALJ provided germane reasons to reject the lay testimony of Rayment’s
husband: inconsistency with Rayment’s activities, inconsistency with clinical
observations, and internal inconsistencies in his testimony. See Molina, 674 F.3d
at 1114 (germane reasons required to reject lay testimony); Valentine v. Comm’r,
Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (internal inconsistency);
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)
(inconsistency with activities); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir.
2005) (inconsistency with medical evidence).
Substantial evidence supports the ALJ’s assessment of the Residual
Functional Capacity (RFC), and the ALJ properly included all limitations in the
hypothetical to the vocational expert. See Bayliss, 427 F.3d at 1217 (deferring to
the ALJ when substantial evidence supports the assessment of the RFC and
hypothetical to the vocational expert).

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We do not consider any additional issues that Rayment failed to specifically
argue in her opening brief. See Carmickle, 533 F.3d at 1161 n.2 (explaining that
this court will not consider issues that are not specifically and distinctly raised in
the opening brief).
AFFIRMED.

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