Virginia E. Hamm v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIRGINIA E. HAMM,

Plaintiff-Appellant,

v.

ANDREW M. SAUL, Commissioner of
Social Security,

Defendant-Appellee.

No. 17-17341

D.C. No. 2:16-cv-01098-NVW

MEMORANDUM
*

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding

Submitted May 11, 2020
**

Before: GOODWIN, SCHROEDER, and N.R. SMITH, Circuit Judges.

Virginia E. Hamm appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Hamm’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act (Act). We have jurisdiction under 28 U.S.C. § 1291 and 42

*
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

MAY 13 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 17-17341
U.S.C. § 405(g). We review de novo, Molina v. Astrue, 674 F.3d 1104, 1110 (9th
Cir. 2012), and we affirm.
1. The Administrative Law Judge (“ALJ”) did not harmfully err in evaluating
the medical evidence. First, the ALJ provided “specific and legitimate reasons that
are supported by substantial evidence” for rejecting the opinions of Dr. Bagley,
Hamm’s treating physician. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017)
(quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). For
example, the ALJ rejected Dr. Bagley’s opinion because it was unsupported by
objective evidence, was inconsistent with the record as a whole, and demonstrated
a lack of understanding of social security disability programs and evidentiary
requirements. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)
(“incongruity” between physician’s opinion and his treatment notes was a specific
and legitimate reason to reject the opinion); Thomas v. Barnhart, 278 F.3d 947,
957 (9th Cir. 2002) (ALJ need not accept an opinion that is “inadequately
supported by clinical findings”); see also 20 C.F.R. § 404.1527(c) (providing that
consistency with the record as a whole, supportability, and understanding of
disability programs are factors to consider in evaluating medical opinions).
Therefore, even assuming the other reasons proffered by the ALJ for rejecting Dr.
Bagley’s opinions were erroneous, any error would be “inconsequential to the
ultimate nondisability determination,” because the ALJ offered specific and

3 17-17341
legitimate reasons for rejecting the opinions. See Molina, 674 F.3d at 1115
(quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.
2008)).
Second, the ALJ did not err in assigning significant weight to the opinion of
Dr. Metcalf, a nonexamining medical advisor, because the ALJ properly
considered the requisite factors and explained how they weighed in favor of Dr.
Metcalf’s opinion. See 20 C.F.R. § 404.1527(c) (listing factors ALJ should
consider in weighing medical opinions, including consistency with the record as a
whole); Thomas, 278 F.3d at 957 (“The opinions of non-treating or non-examining
physicians may also serve as substantial evidence when the opinions are consistent
with independent clinical findings or other evidence in the record.”).
2. The ALJ did not harmfully err in discounting Hamm’s testimony, because
the ALJ offered “specific, clear and convincing reasons for doing so.” Trevizo, 871
F.3d at 678 (quoting Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014)).
Indeed, the ALJ provided several specific, clear and convincing reasons supported
by substantial evidence for discounting Hamm’s testimony, including: (1) Hamm’s
testimony was inconsistent with, and unsupported by, the medical evidence of
record, see Carmickle, 533 F.3d at 1161 (ALJ may discount a claimant’s testimony
as inconsistent with the medical evidence); Burch v. Barnhart, 400 F.3d 676, 681
(9th Cir. 2005) (ALJ may consider a lack of corroborating medical evidence as one

4 17-17341
factor in the credibility determination); (2) Hamm’s “poor effort” on physical
examinations suggested Hamm exaggerated her symptoms, see Thomas, 278 F.3d
at 959 (finding the claimant’s lack of effort during two examinations undermined
claimant’s credibility); and (3) Hamm’s work history also undermined the
credibility of her testimony, see Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.
2001) (recognizing an ALJ properly discounted claimant’s testimony where the
claimant left work because “he was laid off, rather than because he was injured”).
Therefore, even assuming the ALJ’s other proffered reasons for discounting
Hamm’s testimony were erroneous, any such error was harmless, because the ALJ
offered other specific, clear, and convincing reasons for discounting Hamm’s
testimony. See Molina, 674 F.3d at 1115.
AFFIRMED.