Kimberly A. Dyer v. NANCY A. BERRYHILL, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY A. DYER,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 17-35633
D.C. No. 3:16-cv-05733-TLF
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Theresa Lauren Fricke, Magistrate Judge, Presiding
Submitted March 7, 2019**
Before: FARRIS, D. NELSON, and TALLMAN, Circuit Judges
Kimberly A. Dyer appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Dyer’s application for supplemental
security income under Title XVI of the Social Security Act. We review de novo,
Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014), and we affirm.
* 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 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The Administrative Law Judge (“ALJ”) properly rejected examining
physician Dr. Wheeler’s opinion because it was inconsistent with the longitudinal
record and because Dr. Wheeler indicated that any limitations would last less than
12 months with treatment. See Garrison, 759 F.3d at 1010 (explaining that
disability requires an impairment that is expected to last at least 12 months);
Tommasetti v. Astrue, 533 F.3d 1035, 1040 –42 (9th Cir. 2008) (concluding that
the ALJ may properly reject a treating physician opinion that is inconsistent with
other medical records). Because Dr. Sanchez’s opinion relied entirely on Dr.
Wheeler’s opinion, the ALJ reasonably rejected it for the same reasons.
The ALJ provided several germane reasons to reject the Global Assessment
of Function (GAF) scores assigned by non-acceptable medical sources: failure to
follow through with recommended mental health treatment, lack of support by
clinical findings, and inclusion of occupational and family difficulties in assessing
the GAF scores. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)
(requiring germane reasons to reject opinions from non-acceptable medical
sources); Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (including failure
to seek mental health treatment in reasons the ALJ properly relied on to reject a
medical opinion); Tommasetti, 533 F.3d at 1041–42 (concluding that the ALJ may
properly reject a medical opinion that is unsupported by clinical findings);
Garrison, 759 F.3d at 1002 n.4 (explaining that GAF scores include measures of

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social and occupational functioning).
Substantial evidence supports the ALJ’s findings from the medical record
and weighing of the medical opinions, including the opinions from Dr. Heilbrunn,
Dr. Aleshire, and Dr. Brown. See Tommasetti, 533 F.3d at 1041 (“the ALJ is the
final arbiter with respect to resolving ambiguities in the medical evidence”).
The ALJ properly discredited Dyer’s testimony based on clear and
convincing reasons. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,
1160 (9th Cir. 2008) (requiring an adverse credibility finding to be based on clear
and convincing reasons). First, the objective medical evidence showed only mild
physical and mental health impairments. See Burch v. Barnhart, 400 F.3d 676,
680 (9th Cir. 2005) (explaining that the ALJ may consider lack of supporting
medical evidence in discrediting a claimant’s subjective complaints as long as it is
not the only factor that the ALJ relies on). Second, Dyer’s activities, including
cooking, cleaning, and taking her dog for walks were inconsistent with her alleged
physical limitations. See Molina, 674 F.3d at 1112–13 (9th Cir. 2012) (including
inconsistency with daily activities in reasons the ALJ may rely upon to discredit
claimant testimony). Third, Dyer’s testimony that she continued to look for work
was inconsistent with her testimony as to total disability. See Bray v. Comm’r,
Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (reasoning that the
claimant’s job searches were inconsistent with her testimony as to disability).

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Fourth, Dyer failed to seek treatment for her mental health impairments or left
knee until shortly before her hearing, and no medical evidence in the record
supports a conclusion that her failure to seek treatment was due to her mental
impairments. See Molina, 674 F.3d at 1114 (explaining that the ALJ properly
rejected claimant testimony because the claimant failed to seek treatment and there
was no medical evidence that any failure was attributable to the claimant’s mental
impairments). Any error in relying on additional reasons to discredit Dyer’s
testimony was harmless. See Carmickle, 533 F.3d at 1162 (reasoning that error in
relying on improper reasons to discredit claimant testimony was harmless because
substantial evidence supported the ALJ’s reasoning and credibility determination).
Dyer waived any challenge to the ALJ’s rejection of lay testimony by failing
to sufficiently argue the issue in her opening brief. See Carmickle, 533 F.3d at
1161 n.2 (“we ordinarily will not consider matters on appeal that are not
specifically and distinctly argued in an appellant’s opening brief” (internal
quotation and citation omitted)).
The residual functional capacity assessment and hypothetical posed to the
vocational expert were supported by substantial evidence and reasonably included
all limitations for which there was record support. See Bayliss v. Barnhart, 427
F.3d 1211, 1217 (9th Cir. 2005).
AFFIRMED.

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