Papen v. Commissioner of the Social Security Administration
Opinion of the Court
MEMORANDUM
April Papen appeals the district court’s decision affirming the Administrative Law Judge’s (“ALJ”) denial of her application for disability insurance benefits and supplemental security income. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The panel’s review is “essentially the same as that undertaken by the district court.” Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985). In both cases, the court determines whether the ALJ’s decision is supported by “substantial evidence.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence” is “more than a mere scintilla, but less than a preponderance.” . Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (internal quotations and citations omitted).
1. Papen has waived her argument that the ALJ improperly rejected the testimony
2. Papen waived her argument that the ALJ erred in finding that Papen’s alleged impairments (other than her obesity) did not meet or equal a listing under step three of the five step analysis (listed impairment at 20 C.F.R. pt. 404, Subpart P, Appendix 1, 1.02A). She did not properly raise the issue before the district court, and there are no exceptional circumstances to justify addressing it on appeal.
3. The ALJ properly assessed the effects Papen’s obesity had on her functional limitations. Papen’s medical records note that Papen is morbidly obese, and that the obesity affects her impairments. Drs. Harris and Westfall nevertheless found that Papen was still able to perform basic work activities despite these impairments alone, or in combination.
4. We review a claimant’s testimony of medical impairment under a two-step process. First, “[t]he claimant must produce objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged....’” Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (quoting 42 U.S.C. § 423(d)(5)(A) (1988)). Second, assuming claimant produces such evidence and there is no affirmative evidence the claimant is malingering, the Commissioner must provide “clear and convincing reasons” for rejecting the testimony. Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (quoting Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).
The ALJ provided clear and convincing reasons for rejecting Papen’s testimony. The medical complaints, Papen now alleges as a disability, are the same ones she had while gainfully employed. Also, Drs. Wood and Braseth noted that Papen was assisting with household chores, driving a car, and going grocery shopping. Such activities were clearly inconsistent with Papen’s testimony that she was able to walk only a few feet. Finally, Dr. Harris concluded that Papen’s “complaints of pain/discomfort are out of proportion to her objective findings.”
5. Papen waived her argument that the ALJ posed an improper hypothetical to the vocational experts. She did not raise the issue to the district court, and there are no exceptional circumstances to justify addressing it on appeal.
6. In determining residual functional capacity (“RFC”), an ALJ must consider “all of the relevant medical and other evidence,” 20 C.F.R. § 416.945(a)(3), including statements provided by medical sources and the claimant’s own reports. Id. In maldng his RFC finding, the ALJ essentially adopted the findings of Dr. Harris. Papen could occasionally lift and carry twenty-five pounds, and frequently lift and carry twenty pounds. She was limited to two hours out of eight of stand
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Reference
- Full Case Name
- April J. PAPEN v. COMMISSIONER OF the SOCIAL SECURITY ADMINISTRATION
- Status
- Published