Joelle Thayer v. NANCY A. BERRYHILL, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOELLE THAYER,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 17-35199
D.C. No. 2:16-cv-00545-DWC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
David W. Christel, Magistrate Judge, Presiding
Submitted January 16, 2019**
Before TROTT, SILVERMAN, and TALLMAN, Circuit Judges:
Joelle Thayer appeals the district court order affirming the Commissioner’s
denial of applications for disability benefits. We review the district court order de
FILED
JAN 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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novo and the agency decision for legal error and substantial evidence. Garrison v.
Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014). We affirm.
The ALJ gave specific and legitimate reasons supported by substantial
evidence for giving less weight to some of the opinions of Anselem Parlatore,
Ph.D., who examined Thayer for state benefits. Widmark v. Barnhart, 454 F.3d
1063, 1066-67 (9th Cir. 2006) (requiring specific and legitimate reasons to give
less weight to controverted opinions). The record supports the ALJ’s findings that
the opinions were internally inconsistent, without any explanation for the
inconsistencies; inconsistent with clinical observations and testing; inconsistent
with treatment records and the record as a whole; and specifically premised on
Thayer’s statements, which the ALJ found to be unreliable and inconsistent with
other statements Thayer made in the record. An ALJ may give less weight to
opinions that are brief, conclusory and inadequately supported by clinical findings
or are inconsistent with examination or treatment records. Tommasetti v. Astrue,
533 F.3d 1035, 1041 (9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1216-17
(9th Cir. 2005); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Also, an
ALJ may give less weight to a mental health opinion when it relies “more heavily”
on self-reports than on clinical observations, particularly when the ALJ properly
2

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discounts the claimant’s testimony as not credible. Buck v. Berryhill, 869 F.3d
1040, 1049 (9th Cir. 2017).
The ALJ also gave specific and legitimate reasons supported by substantial
evidence for giving less weight to the opinions of David Myers, Ph.D.,1 who
reviewed the record and testified at the hearing. Dr. Myers relied on the properly
discounted, unsupported opinions of Dr. Parlatore. In addition, as the ALJ found,
Dr. Meyers conceded that his opinions were inconsistent with Thayer’s past work
history.
We decline to address Thayer’s challenge to the ALJ’s treatment of other
reviewing opinions. Thayer waived the argument by not raising it to the district
court and waived any arguments regarding exceptional circumstances by not
addressing waiver in her opening brief. Greger v. Barnhart, 464 F.3d 968, 973
(9th Cir. 2006); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th
Cir. 2009).
AFFIRMED.
1Dr. Myers’s name is spelled in various ways throughout the record. “David
A. Myers, Ph.D.” is how it appears in his resume.
3

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