Kelly A. Moores v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY A. MOORES,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 19-16098
D.C. No. 2:17-cv-02334-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Edmund F. Brennan, Magistrate Judge, Presiding
Submitted February 11, 2021**
San Francisco, California
Before: HURWITZ and BRESS, Circuit Judges, and FEINERMAN,*** District
Judge.
Kelly Moores appeals the district court’s order affirming the Social Security
* 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 Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
FEB 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
Administration’s denial of disability benefits. We have jurisdiction pursuant to 28
U.S.C. § 1291 and affirm.
1. The ALJ gave specific, clear, and convincing reasons supported by
substantial evidence for finding Moores’ subjective symptom testimony not
credible. Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014). Moores’
complaints were inconsistent with the conservative treatment prescribed and
received, Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007); 20 C.F.R.
§ 404.1529(c)(3), and her explanations were not so compelling that the ALJ was
required to credit them. Moores’ complaints were also inconsistent with the medical
record, which did not document symptoms as severe as she claimed. See 20 C.F.R.
§ 404.1529(c)(2); SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017).
2. The ALJ gave germane reasons supported by substantial evidence for
discounting lay witness testimony. Valentine v. Comm’r, 574 F.3d 685, 694 (9th
Cir. 2009). The lay testimony mirrored Moores’ and could be rejected for similar
reasons, id., including inconsistency with the medical evidence, Bayliss v. Barnhart,
427 F.3d 1211, 1218 (9th Cir. 2005). Any error in the other reasons given is
harmless. See Valentine, 574 F.3d at 694.
3. The ALJ gave specific and legitimate reasons supported by substantial
evidence for discounting Dr. Stricker’s opinion. Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995). Dr. Stricker relied substantially on Moores’ description of her

-- 2 of 4 --

3
condition, Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008), as evidenced
by the limited duration of their treatment relationship and the sparse findings in his
treatment notes. Test results show that Moores suffers from Lyme disease and co-
infections but do not alone establish the severity of her symptoms. And, although a
physician may consider subjective complaints in assessing non-specific symptoms,
an ALJ may reject reliance on self-reports that lack credibility. See id. Dr. Stricker’s
opinion is also inconsistent with Moores’ daily activities. Rollins v. Massanari, 261
F.3d 853, 856 (9th Cir. 2001). For instance, he opined that Moores could not
repetitively use foot controls, a fact contradicted by her ability to drive. Although
the ALJ’s decision does not refer to Dr. Stricker’s specialization, the record shows
she considered the relevant factors. See Trevizo v. Berryhill, 871 F.3d 664, 676 (9th
Cir. 2017).
4. The ALJ gave specific and legitimate reasons supported by substantial
evidence for discounting Dr. Hynote’s opinion. Lester, 81 F.3d at 830. Dr. Hynote’s
treatment records do not corroborate why Moores must elevate her legs above her
heart 100 percent of the time, how she was limited in the use of upper extremities,
and how her left hand was more impaired than her right. See Tommasetti, 533 F.3d
at 1041. Dr. Hynote’s opinion is also inconsistent with Moores’ conservative
treatment. See Rollins, 261 F.3d at 856. Moores recognizes that antibiotics are the
standard treatment for chronic Lyme disease and does not persuasively explain why

-- 3 of 4 --

4
her regimen cannot be considered conservative.
5. Moores forfeited a number of challenges to the ALJ’s specific and
legitimate reasons for discounting Dr. Monks’ opinion by not raising them in her
opening brief. Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011). The
challenges Moores did raise are unavailing and do not undercut the reasons given by
the ALJ for discounting Dr. Monks’ opinion.
AFFIRMED.

-- 4 of 4 --