Joseph L. Smith v. NANCY A. BERRYHILL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH L. SMITH,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Commissioner of
Social Security,
Defendant-Appellee.
No. 17-55735
D.C. No. 5:14-cv-01911-VEB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Victor E. Bianchini, Magistrate Judge, Presiding
Submitted February 8, 2019**
Pasadena, California
Before: WARDLAW and BEA, Circuit Judges, and MURPHY,*** District Judge.
Joseph Smith appeals the district court’s affirmance of the Social Security
Commissioner’s (“the Commissioner”) denial of his application for disability
* 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).
*** The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
FILED
MAR 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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insurance benefits under the Social Security Act. Because the parties are familiar
with the facts of this case, we recite them only as necessary to explain our decision.
Smith claims to have become disabled August 1, 2009, and his disability insurance
coverage lapsed eight months later on March 31, 2010. Whether he is eligible for
disability insurance benefits hinges on whether Smith had a medically determinable
impairment that prevented him from performing substantial gainful activity between
August 1, 2009, and March 31, 2010 (the “relevant disability period”).
I.
To receive Social Security disability benefits, a claimant must prove that he
had a medically determinable impairment that prevented him from performing
substantial gainful activity for at least a consecutive twelve-month period. See 42
U.S.C. § 423(a)(1)(A), (c)(1), (d)(1); 20 C.F.R. §§ 404.131, 404.1505; Tidwell v.
Apfel, 161 F.3d 599, 601 (9th Cir. 1998). The claimant must also prove that he had
such an impairment before the expiration of his disability insurance coverage, and
that the impairment has existed continuously since some time before or on the date
that his disability insurance coverage lapsed. See Flaten v. Sec’y of Health and
Human Servs., 44 F.3d 1453, 1458 (9th Cir. 1995).
A district court order upholding the Commissioner’s denial of benefits is
reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The
Commissioner’s final decision denying disability benefits (here, the ALJ’s decision)

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must be upheld if it is supported by substantial evidence and free of reversible legal
error. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971).
“Substantial evidence means more than a scintilla but less than a preponderance.”
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Where evidence is
susceptible to more than one rational interpretation, it is the ALJ’s conclusion that
must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Thomas,
278 F.3d at 954.
II.
Smith first argues that the ALJ erred by finding that he was not per se disabled.
A claimant can prove that he is disabled by showing that his medical condition meets
or equals all of the criteria for a medical condition listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1, which is considered to be a “per se disabling” condition.
Flores v. Shalala, 49 F.3d 562, 565 n.2 (9th Cir. 1995).
The ALJ properly found that Smith failed to prove that he had a medical
condition that was per se disabling during the relevant disability period. Smith
admits that his condition does not meet all of the criteria of Listing 5.06A
(Inflammatory Bowel Disease)—the most similar listed impairment. Therefore, the
only way that his condition can be considered “per se disabling” is if it equals all of
the required elements of the listing. Instead of articulating how his condition equals
all aspects of Listing 5.06A (or any other listed condition), Smith simply repeats a

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generalized description of his symptoms—conflating his symptoms from before,
during, and after the relevant disability period—before concluding that his condition
is equal in severity to a listed condition. Because Smith did not meet his burden of
proving that his condition met or equaled the severity of any listed condition, the
ALJ’s decision was not erroneous.
III.
Smith next argues that the ALJ erred by finding that he had the residual
functional capacity to perform his past relevant work, and was therefore not disabled.
Smith’s arguments on this point rely on unnecessarily graphic descriptions of his
condition with little basis in the record, and conflate evidence of Smith’s symptoms
from before, during, and after the relevant disability period. The relevant medical
evidence shows that up until the last several weeks of the relevant disability period,
Smith experienced some gastrointestinal and urological issues, but they were
managed with routine and conservative treatment, and did not cause any functional
limitations. Smith suffered a serious and sudden health scare in March 2010, several
weeks before the end of the relevant disability period. But the relevant medical
evidence—and Smith’s own testimony—suggests that he recovered well from his
March 2010 colostomy surgery. Indeed, Smith stated that he had no problems during
that period, and that his colostomy bag was “working well” several months after the

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March 2010 surgery.1
In determining that Smith had the residual functional capacity to perform his
past relevant work, the ALJ properly discounted Smith’s subjective statements about
his symptoms after laying out several clear and convincing reasons that Smith’s
testimony was not credible (e.g., because it was internally inconsistent and conflicted
with available medical evidence).
The ALJ also properly relied on the vocational expert’s testimony regarding
Smith’s residual functional capacity. “In determining a claimant’s residual
functional capacity, the ALJ must consider all of a claimant’s medically
determinable impairments.” Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014).
But it was proper for the ALJ to consider only those impairments “for which there
was record support that [does] not depend on [the claimant]’s subjective
complaints.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Smith
argues that the vocational expert’s hypothetical analysis should have included a bevy
of limitations that Smith alleges existed during the relevant period, but which are not
1 Smith ultimately elected to have his colostomy surgically reversed in November
2011—seven months after the relevant disability period ended. That elective
surgical procedure caused a number of serious health complications that have had
lasting negative impacts on Smith’s life. But our inquiry is limited to whether Smith
suffered a medically determinable impairment during the relevant disability period.
The health complications from Smith’s second surgery, though unfortunate, are
irrelevant to that inquiry.

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supported by objective evidence in the record.2 The ALJ properly included all of
Smith’s limitations during the relevant period that were supported by the medical
evidence in posing hypotheticals to the vocational expert, and in coming to a
determination on Smith’s residual functional capacity.
Therefore, the ALJ did not err in determining that Smith was not disabled
during the relevant disability period, because he had the residual functional capacity
to perform his past relevant work during that period.
IV.
Smith argues that the panel should remand the case for the ALJ to consider
new evidence, which Smith first introduced before the district court, regarding his
hospitalization in Colorado for diverticulitis in August 2009. Under 42 U.S.C. §
405(g), a reviewing court may remand a case for the Commissioner to review new
evidence “upon a showing that [the new evidence] . . . is material and that there is
good cause for the failure to incorporate such evidence into the record in a prior
proceeding.” 42 U.S.C. § 405(g). “To be material under section 405(g), the new
evidence must bear ‘directly and substantially on the matter in dispute’” and the
2 Many of the alleged limitations that Smith argues should have been included in the
hypotheticals posed to the vocational expert come from Judy Deertrack’s letter
describing Smith’s convalescence after his second elective surgery in November
2011. But none of Deertrack’s descriptions relate back to the relevant disability
period—indeed, Deertrack did not meet Smith until six months after the relevant
disability period ended.

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claimant “must additionally demonstrate that there is a ‘reasonable possibility’ that
the new evidence would have changed the outcome of the administrative hearing.”
Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).
Even if Smith could establish good cause, there is no reasonable probability
that the evidence would have changed the outcome of the administrative hearing.
The ALJ acknowledged that Smith suffered from gastrointestinal and urinary tract
issues during the relevant disability period, but found that these issues did not
substantially impair his functional capacity during that period. The Colorado
hospitalization provides further evidence that Smith suffered gastrointestinal issues
during the relevant disability period, but does not show that Smith suffered any
lasting functional impairments. This new evidence, therefore, has no probability of
changing the outcome of the administrative hearing, and does not require remand.
For the same reasons, Smith’s motion to take judicial notice and supplement the
record with this new evidence [Dkt. 18] is denied.
AFFIRMED.

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