DIANA NEWCOMER, AKA Olsen v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIANA NEWCOMER, AKA Olsen,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 15-35122
D.C. No. 3:14-cv-05247-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted March 21, 2018**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges
Diana Newcomer appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Newcomer’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
* 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 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and we affirm.
After the Administrative Law Judge (“ALJ”) denied her claim for benefits,
Newcomer presented an additional medical opinion from her treating physician,
Dr. Wright, to the Appeals Council. Because the Appeals Council considered Dr.
Wright’s April 2013 opinion, that opinion became part of the administrative record
that we “must consider when reviewing the Commissioner’s final decision for
substantial evidence.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157,
1163 (9th Cir. 2012).
Even in light of the new evidence considered by the Appeals Council,
substantial evidence supports the ALJ’s reasoning. In his April 2013 medical
opinion, Dr. Wright checked a box indicating that Newcomer would be “off task”
for 20 percent of an eight-hour work day. Asked to explain this finding on the
same form, Dr. Wright wrote, “Would have been able to perform sedentary duties
with just her feet.” Also on the same form, Dr. Wright stated that he had “no
information on [Newcomer’s] medical status other than her feet, and that he had
“no input on her knees, hips or back. If it was just her feet she could maintain
sedentary work.” Dr. Wright expressly stated that the only medical conditions
about which he was qualified to give an opinion were the issues with Newcomer’s
feet, and he believed that these issues would only limit her to sedentary work. Any

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other limitations that appeared to have been included in Dr. Wright’s report,
including the 20 percent “off task” limitation, did not have a legitimate basis.
Thus, the record as a whole continues to support the ALJ’s reasoning. See Decker
v. Berryhill, 856 F.3d 659, 665 (9th Cir. 2017) (explaining that when new medical
evidence is first considered by the Appeals Council, we review whether substantial
evidence based on the record as a whole supports the ALJ’s reasoning).
Substantial evidence supports the ALJ’s conclusion that Dr. Moslin’s
opinion was consistent with the residual functional capacity (RFC) assessment, and
the ALJ did not err by failing to provide specific and legitimate reasons to reject
Dr. Moslin’s opinion. Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th
Cir. 2010) (requiring the ALJ to provide specific and legitimate reasons to reject
the contradicted opinion of an examining physician unless that opinion is
reasonably incorporated into the RFC). Dr. Moslin concluded that Newcomer
could perform simple and repetitive work and may be able to hold a job in which
she did not need to interact very much with others. Dr. Moslin stated that in the
past, Newcomer has not been able to hold jobs for very long because of her
personality disorder. However, Dr. Moslin did not clearly conclude that
Newcomer would be unable to work because of these limitations. The ALJ’s
conclusion that Dr. Moslin’s opinion was consistent with the RFC was reasonable
based on the ambiguous evidence in Dr. Moslin’s opinion. See Bray, 554 F.3d at

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1222 (explaining that we will defer to the ALJ when the evidence reasonably
supports more than one conclusion).
Substantial evidence also supports the ALJ’s conclusion that Dr. Wheeler’s
opinion was consistent with the RFC, and the ALJ did not err by failing to provide
specific and legitimate reasons to reject Dr. Wheeler’s opinion. See Turner, 613
F.3d at 1223. Like Dr. Moslin, Dr. Wheeler concluded that Newcomer would have
severe limitations in her ability to work due to poor social interactions. Dr.
Wheeler did not conclude that Newcomer would be unable to work because of
these limitations. The ALJ’s conclusion that Dr. Wheeler’s opinion was consistent
with the RFC was reasonable based on the record. See Bray, 554 F.3d at 1222.
Any error in failing to consider whether personality disorder was a severe
impairment at Step Two was harmless because the ALJ considered all of
Newcomer’s mental health limitations arising from any source. See Lewis v.
Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding that any error in not finding an
impairment to be severe at Step Two is harmless if the ALJ considers any resulting
limitations in assessing a claimant’s RFC).
The ALJ provided several clear and convincing reasons to discredit
Newcomer’s testimony regarding symptoms of distraction and inability to get
along with others. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First,
Newcomer’s allegations of debilitating pain in the lower extremities and neck were

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inconsistent with objective medical evidence. Molina v. Astrue, 674 F.3d 1104,
1113 (9th Cir. 2012). Second, Newcomer’s symptoms responded favorably to
treatment, including medication and physical therapy. Celaya v. Halter, 332 F.3d
1177, 1181 (9th Cir. 2003). Third, Newcomer’s allegations of debilitating mental
health symptoms, including debilitating anxiety and panic attacks and difficulty
concentrating, were inconsistent with the medical record. Molina, 674 F.3d at
1113. Fourth, Newcomer failed to comply with prescribed physical therapy
treatment. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Fifth,
Newcomer’s statements throughout the record were inconsistent, and Newcomer
did not explain any of these inconsistencies when offered the opportunity to do so
at the hearing. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
AFFIRMED.

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