Timothy Moose v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY MOOSE,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-35446
D.C. No. 1:15-cv-03022-FVS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding
Submitted March 27, 2018**
Before: FARRIS, CANBY, and LEAVY, Circuit Judges
Timothy Moose appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Moose’s application for supplemental
security income benefits under Title XVI of the Social Security Act. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, Brown-Hunter v. Colvin,
* 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
MAR 28 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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806 F.3d 487, 492 (9th Cir. 2015), and we affirm.
Any error in failing to consider Oppositional Defiant Disorder at step two
was harmless because the Administrative Law Judge (ALJ) properly considered all
of Moose’s impairments and limitations in evaluating whether Moose met any
listings at step three and assessing Moose’s Residual Functional Capacity (RFC).
See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (holding that failure to
consider an impairment at step two is harmless if the ALJ properly considered all
impairments in the remaining steps of the disability analysis).
The ALJ’s inclusion of restrictions to simple tasks, with only occasional
changes in the work environment and with limitations in interactions with co-
workers and the public, adequately accounted for the limitations in Dr. Kraft’s
opinion. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)
(explaining that the ALJ properly determined specific functional limitations based
on the evidence in the record). The ALJ did not err by failing to include Dr. Kraft’s
additional recommendation of clear and non-confrontative supervision. See Rounds
v. Comm’r, Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (reasoning that
the ALJ was not required to account for additional recommendations contained in a
medical opinion when the ALJ properly accounted for the specific functional
limitations in the opinion). Moose waived any challenge to the ALJ’s assessment

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of the opinions of Dr. Regets and Dr. Kester by failing to raise the issue before the
district court. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).
The ALJ provided several specific, clear, and convincing reasons to reject
Moose’s testimony regarding functional limitations arising from his lack of anger
management and inability to interact appropriately with supervisors. See Carmickle
v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). First, the ALJ
properly discredited Moose’s testimony regarding the severity of his symptoms
because of objective medical evidence showing a history of symptom exaggeration
and benefits-seeking. See Rounds, 807 F.3d at 1006 (including evidence of
secondary motivation in factors the ALJ properly relied on to discredit claimant
testimony); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (concluding
that the ALJ properly discredited claimant testimony based on medical evidence
that the claimant exaggerated their symptoms). Second, the ALJ properly rejected
Moose’s testimony by relying on its inconsistencies with the objective medical
evidence showing that Moose was capable of regular social interaction. See
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Third, the ALJ
properly concluded that Moose’s failure to seek treatment was due to disinterest
rather than other explanations and discredited Moose’s testimony because of his
inadequately- explained failure to comply with medication and treatment
recommendations. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)

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(including inadequately-explained failure to follow prescribed treatment among
reasons that the ALJ may properly rely on to discredit claimant testimony). Fourth,
the ALJ permissibly discredited Moose’s testimony regarding the disabling effects
of his poor anger management and inability to interact appropriately with
supervisors because of its inconsistency with Moose’s ability to spend time visiting
with friends and interacting with others. See Orn v. Astrue, 495 F.3d 625, 639 (9th
Cir. 2007) (including inconsistency with daily activities in the reasons that the ALJ
may properly rely on to discredit claimant testimony).
Any error in evaluating the lay testimony of Ms. Crawford and in failing to
discuss the testimony of Ms. Beaver was harmless because Ms. Crawford and Ms.
Beaver’s testimony regarding Moose’s anger and inability to accept supervision
were substantially similar to Moose’s own testimony, and the ALJ’s reasons for
rejecting Moose’s testimony regarding the limiting effects of his symptoms also
apply to the lay testimony. See Molina, 674 F.3d at 1117 (concluding that any error
in failing to discuss lay testimony is harmless when the lay testimony describes the
same limitations as the claimant’s testimony and the ALJ properly rejected the
claimant’s testimony).
AFFIRMED.

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