Teresa M. Altman v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERESA M. ALTMAN,

Plaintiff-Appellant,

v.

ANDREW M. SAUL, Commissioner of
Social Security,

Defendant-Appellee.

No. 18-36099

D.C. No. 3:17-cv-05867-RSM

MEMORANDUM
*

Appeal from the United States District Court
For the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding

Submitted February 7, 2020
**

Seattle, Washington

Before: M. SMITH and N.R. SMITH, Circuit Judges, and TUNHEIM,
***

District Judge.

*
This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.

**
The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

***
The Honorable John R. Tunheim, Chief United States District Judge for the
District of Minnesota, sitting by designation.
FILED

FEB 11 2020

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

2
Teresa Altman appeals the district court’s judgment affirming the Social
Security Administration’s final decision to deny Altman’s application for disability
benefits. We review de novo the district court’s order. Dale v. Colvin, 823 F.3d
941, 943 (9th Cir. 2016). “We must affirm the Commissioner’s final decision if it
is supported by substantial evidence and is free of legal error.” Id. (citing 42 U.S.C.
§ 405(g)). Moreover, “we may not reverse an [Administrative Law Judge’s
(“ALJ”)] decision on account of an error that is harmless.” Molina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012). We affirm the district court.
Substantial evidence supported the ALJ’s weighing of the medical evidence.
The ALJ properly rejected the opinions of Dr. Johns and Dr. Zenger and gave
“specific and legitimate reasons that are supported by substantial evidence” for
doing so, citing contradictory medical and non-medical evidence, as well as
Altman’s own work history. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017)
(quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)).
Substantial evidence also supported the ALJ’s reliance on the opinions of the
nonexamining physicians as their opinions were consistent with the record as a
whole. See Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989) (upholding
ALJ’s reliance on nontreating, nonexamining physician’s testimony when it was
consistent with the record and not the sole basis for rejecting the opinions of a

3
treating physician). Substantial evidence also supported the ALJ’s reliance on the
opinion of Dr. Meed West, Altman’s treating chiropractor, as his opinion was
consistent with the record as a whole and his own treatment notes.
1
See Revels, 874
F.3d at 654.
The ALJ did not err in discounting Altman’s testimony because he offered
specific, clear and convincing reasons for doing so. See Lingenfelter v. Astrue, 504
F.3d 1028, 1036 (9th Cir. 2007). The ALJ noted Altman’s testimony regarding the
severity of her symptoms was inconsistent with the date her disability began, the fact
that Altman stopped working for reasons unrelated to her disability, Altman’s
reported daily activities, the objective medical evidence, and other evidence in the
record. See id. at 1040 (discussing relevant factors for evaluating a claimant’s
testimony). Altman also argues the ALJ erred in discounting Altman’s own
testimony because the ALJ based his analysis on an improper weighing of the
medical evidence. Because we conclude that the ALJ properly weighed the medical
evidence, this argument fails.

1
Altman lists areas of medical evidence she deems “consistent” with her testimony in
arguing the ALJ erred in weighing the medical evidence. Because we conclude that the
ALJ did not err in weighing the medical evidence, this argument fails. See Edlund v.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), as amended on reh’g (Aug. 9, 2001)
(noting the ALJ is “responsible for determining credibility, resolving conflicts in medical
testimony, and resolving ambiguities.”).

4
The ALJ also gave germane reasons supported by substantial evidence for
giving little weight to the lay testimony of Altman’s husband, Lester Riter. See
Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993) (“If the ALJ wishes to discount
the testimony of the lay witnesses, he must give reasons that are germane to each
witness.”). For example, the ALJ explained that, contrary to Mr. Riter’s testimony,
“recent records show that the claimant is successfully using lists to help remember
things, and her cognitive symptoms are mild at best.” See Bayliss v. Barnhart, 427
F.3d 1211, 1218 (9th Cir. 2005) (noting that “[i]nconsistency with medical
evidence” is a germane reason for discounting the testimony of a lay witness).
The ALJ erred, however, in “disregard[ing] without comment” the statements
of Social Security Administration Interviewer I. Akimenko. Molina, 674 F.3d at
1114. The error, however, was harmless, as Mr. Akimenko’s statements “did not
describe any limitations beyond those” described by other statements, which the ALJ
had discussed and properly discredited. Id. at 1122. Indeed, Mr. Akimenko’s
statements that the “interview process was very slow,” Altman appeared to be in a
“mental fog,” and Altman communicated in a tangential manner, are consistent with
statements made by Mr. Riter, Altman, and Drs. Johns and Zenger. For example,
Drs. Johns and Zenger both noted Altman’s cognitive capacity was exacerbated by
her tangentiality and circumstantiality; Mr. Riter noted that Altman was “slower”

5
and misses or forgets things; and Altman noted that she was “slower” mentally and
her disability pertains to her “difficulty thinking.” The ALJ considered these
statements and properly discounted them for several reasons, including
inconsistencies with the medical record and her daily activities.
Similarly, Mr. Akimenko’s statements are “contradicted by more reliable
medical evidence that the ALJ credited.” Id. at 1119. The failure by the ALJ to
expressly comment on Mr. Akimenko’s statements is, therefore, “‘inconsequential
to the ultimate nondisability determination’ in the context of the record as a whole”
and harmless. Id. at 1122 (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533
F.3d 1155, 1162 (9th Cir. 2008)).
The ALJ’s residual functional capacity and step five finding are supported by
substantial evidence, as the ALJ reasonably weighed the record evidence and
reasonably accounted for all of Altman’s limitations. See Stubbs-Danielson v.
Astrue, 539 F.3d 1169, 1173–75 (9th Cir. 2008).
AFFIRMED.