Opinion
21-35802
11-01-2022
ANNE MARIE TABAYOYON, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee.
NOT FOR PUBLICATION
Argued and Submitted October 17, 2022 Seattle, Washington
Appeal from the United States District Court for the Eastern District of Washington No. 1:20-cv-03080-RMP Rosanna Malouf Peterson, District Judge, Presiding
Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges.
MEMORANDUM [*]
Claimant Anne Tabayoyon appeals the district court's order affirming the Commissioner's denial of her application for disability benefits. Specifically, she argues that the ALJ erred by (1) discounting her testimony regarding the severity of her symptoms; (2) improperly discounting three medical opinions; and (3) not finding her migraine headaches and vision disorders to be severe impairments. We review the district court's decision upholding a denial of benefits de novo and reverse if the ALJ's decision was not supported by substantial evidence or was based on legal error. See Larson v. Saul, 967 F.3d 914, 922 (9th Cir. 2020). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Tabayoyon also argues that the ALJ violated the law of the case doctrine and the rule of mandate by adopting portions of a prior ALJ's decision, which the district court overturned in 2018. See Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016). Upon remand, the district court instructed the second ALJ in this case, whose decision is at issue here, to conduct a new sequential evaluation and reconsider the evidence. Although the second ALJ improperly adopted portions of the prior ALJ's decision, any error was harmless because the ALJ in this case complied with the court's remand order and provided independent reasoning for its decision. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (holding that an ALJ's error is harmless where it is "inconsequential to the ultimate nondisability determination" (quotation and citation omitted)).
1. Symptom testimony.
The ALJ found inconsistencies between Tabayoyon's testimony regarding her symptom severity and the medical evidence in the record. The ALJ also found that Tabayoyon's statements were not entirely supported by the objective medical evidence, which is a permissible reason to discredit a claimant's symptom testimony given that it was not the sole basis for the ALJ's decision. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). In evaluating Tabayoyon's testimony, the ALJ properly "identif[ied] what testimony is not credible and what evidence undermines [Tabayoyon's] complaints." BrownHunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation omitted). The ALJ also properly considered evidence indicating that Tabayoyon exaggerated the severity of her disability. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Therefore, we conclude that the ALJ provided specific, clear, and convincing reasons for discounting Tabayoyon's testimony regarding the severity of her symptoms. See Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir. 2021).
2. Medical opinions.
Tabayoyon argues that the ALJ improperly discounted the opinions of three medical providers: a state consultative examining physician, Tabayoyon's treating physician, and a VA examining physician assistant. Under the applicable regulations, if contradicted by another doctor's opinion, treating or examining physician opinions can be rejected only "by providing specific and legitimate reasons that are supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Reasons for rejecting the opinions of physician assistants need only be "germane." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
Tabayoyon improperly asserts that the ALJ was required to give "persuasive, specific and valid reasons" to discount the VA physician assistant's opinions. That standard is applied to weighing VA disability ratings, see McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002), but the physician assistant was opining in her own capacity.
The ALJ found that physical limitations identified by the state consultative examining physician were inconsistent with his own examination findings. This is a specific and legitimate reason to discount the opinion. See Tomasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). The ALJ found that the opinions of Tabayoyon's treating physician and the VA physician assistant were based more heavily on Tabayoyon's self-reports than on clinical observations. Because we conclude that the ALJ properly discounted Tabayoyon's symptom testimony, this is a valid reason for also discounting the medical sources that relied on Tabayoyon's testimony. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) ("A physician's opinion of disability premised to a large extent upon the claimant's own accounts of his symptoms and limitations may be disregarded where those complaints have been properly discounted." (citation omitted)). For these reasons, we conclude that the ALJ's evaluation of the medical opinions was supported by substantial evidence.
3. Step two evaluation.
Finally, Tabayoyon alleges that the ALJ erred by not finding her migraines and vision disorders to be "severe" impairments under step two of the sequential evaluation. Substantial evidence supports the ALJ's finding that Tabayoyon's migraine headaches and vision problems do not constitute "severe" impairments under the regulations. Moreover, as the ALJ resolved step two in Tabayoyon's favor, any error is harmless. See Buck, 869 F.3d at 1049.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.