Stephanie Dawn McTaggart v. Commissioner of Social Security Administration

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHANIE DAWN MCTAGGART,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
No. 11-35215
D.C. No. 6:09-cv-06184-HO
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted May 9, 2012**
Portland, Oregon
Before: TASHIMA, TALLMAN, and IKUTA, Circuit Judges.
Petitioner Stephanie McTaggart appeals the district court’s order affirming
the Commissioner of Social Security’s final decision to deny McTaggart Social
FILED
MAY 14 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The ALJ also noted that Dr. Hylton was commenting outside his area of1
medical expertise in making psychiatric diagnoses. McTaggart argues, and the
Commissioner agrees, that we consider a physician competent to testify on
psychiatric conditions when the conclusions are based on clinical observations.
See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). The Commissioner
concedes that this was an inappropriate basis for rejecting Dr. Hylton’s testimony,
and we do not rely on that reasoning in our decision.
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Security Disability Insurance and Supplemental Security Income benefits. We
have jurisdiction, 28 U.S.C. § 1291, and we affirm. The facts of the case are
known to the parties; we repeat them only as necessary.
McTaggart argues that the Administrative Law Judge (ALJ) erred in
discounting the diagnoses and observations made by Dr. James Hylton about
McTaggart’s psychiatric conditions. Because Dr. Hylton was McTaggart’s treating
physician and his opinions were uncontroverted by other medical professionals, the
ALJ was required to make findings setting forth clear and convincing reasons for
rejecting Dr. Hylton’s testimony based on substantial evidence in the record.
Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). The ALJ found that Dr.
Hylton’s report of McTaggart’s psychological conditions was not supported by the
record and that Dr. Hylton appeared to be merely parroting the limitations
McTaggart reported to him. See Bayliss v. Barnhart, 427 F.3d 1211, 1216–171
(9th Cir. 2005) (ALJ need not accept a medical opinion not supported by clinical
findings and based solely on subjective complaints). The ALJ’s finding is

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The ALJ also relied, in part, on the fact that McTaggart rarely sought2
mental health counseling as a ground for her lack of credibility finding. Although
this reliance was erroneous in light of Nguyen v. Chater, 100 F.3d 1462, 1465 (9th
Cir. 1996) (noting that “it is questionable practice to chastise one with a mental
impairment for the exercise of poor judgment in seeking rehabilitation”), that error
was harmless in light of the other, legitimate grounds on which the ALJ relied.
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supported by substantial evidence in the record. The ALJ therefore did not err in
discrediting Dr. Hylton’s testimony to the extent that it addressed McTaggart’s
psychological conditions or their severity.
McTaggart also argues that the ALJ erred by finding that her own testimony
as to the intensity, persistence, and limiting effects of her mental conditions was
not credible. Absent evidence of malingering, “the ALJ can reject the claimant’s
testimony about the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.” Smolen, 80 F.3d at 1281. The findings must be
“sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily
discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.
2002). The ALJ discredited McTaggart’s testimony because McTaggart’s daily
reported activities were inconsistent with McTaggart’s claimed limitations, see
Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005), and because her allegations
of symptoms were inconsistent with the medical record, see Light v. Soc. Sec.
Admin., 119 F.3d 789, 792 (9th Cir. 1997). The ALJ’s findings and reasons are2

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supported by substantial evidence in the record. The ALJ therefore properly
discredited McTaggart’s testimony on the severity and persistence of her mental
health impairments.
McTaggart next argues that the ALJ improperly gave little weight to the lay
testimony of her mother, Janice Vaughan. An ALJ may discount lay testimony by
expressly determining to disregard the testimony and giving reasons germane to
the witness for doing so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The
ALJ discounted Vaughan’s testimony because Vaughan’s impressions were not
fully consistent with the medical and other evidence of record. See id. (“One
reason for which an ALJ may discount lay testimony is that it conflicts with
medical evidence.”). Substantial evidence in the record supports the ALJ’s finding
that Vaughan’s testimony was at odds with the medical evidence and other
evidence in the record. The ALJ therefore did not err in discounting Vaughan’s
testimony.
McTaggart finally argues that the Commissioner, through the ALJ, did not
satisfy his burden of producing a significant number of jobs that exist in the

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McTaggart also argues that the ALJ inappropriately relied on jobs that were3
incompatible with her RFC and that the compatible jobs relied on do not exist in
sufficient numbers in the regional economy to satisfy the Commissioner’s Step
Five burden. However, McTaggart did not raise this issue in the district court and
the district court did not consider it. We generally will not consider an issue raised
for the first time on appeal; because McTaggart has not argued that any of the
exceptions to this general rule apply, or indeed provided any excuse for her failure
to raise the issue in the district court, we consider the issue waived. See Greger v.
Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).
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national economy that McTaggart could perform. See 20 C.F.R. § 404.1560(c)(1).3
McTaggart argues that the reasoning levels of the jobs relied upon by the
ALJ—classified at levels 2 and 3 by the Dictionary of Occupational Titles—were
inconsistent with her residual functional capacity limiting her to tasks of no more
than three steps. But even if her limitation was inconsistent with a reasoning level
of 3, it was consistent with a reasoning level of 2. See U.S. Dep’t of Labor,
Dictionary of Occupational Titles, app. C (4th ed. 1991), available at 1991 WL
688702 (defining reasoning level 2). The jobs cited by the ALJ with that reasoning
level were sufficient to support the ALJ’s finding that McTaggart could perform
jobs that existed in significant numbers in the national economy and was, therefore,
not disabled.
AFFIRMED.

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