Daryl Vooge v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARYL VOOGE,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 19-36115
D.C. No. 4:19-cv-05036-MKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Mary K. Dimke, Magistrate Judge, Presiding
Submitted March 5, 2021**
Seattle, Washington
Before: RAWLINSON and BYBEE, Circuit Judges, and ENGLAND,*** Senior
District Judge.
* 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).
*** The Honorable Morrison C. England, Jr., Senior United States District
Judge for the Eastern District of California, sitting by designation.
FILED
MAR 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Appellant Daryl Vooge appeals the district court’s affirmance of the
Commissioner of Social Security’s denial of disability benefits. Appellant
challenges the findings of the administrative law judge (“ALJ”) who conducted the
prescribed sequential evaluation of Appellant’s claim and found that any
impairments he had were not severe. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We review the “district court’s order affirming the ALJ’s denial of social
security benefits de novo . . . and will disturb the denial of benefits only if the
decision contains legal error or is not supported by substantial evidence.”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations and internal
quotation marks omitted).
1. The ALJ provided “specific and legitimate reasons that are supported
by substantial evidence” in weighing conflicting medical opinions. Lester v.
Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The testimony of a non-examining
medical advisor may support an ALJ’s rejection of an examining physician’s
conclusions. See, e.g., Magallanes v. Bowen, 881 F.2d 747, 751-52 (9th Cir.
1989). Here, the ALJ rejected an examining physician’s opinion with reference to
the medical record, contrary medical opinions, and inconsistencies in Appellant’s
testimony. The ALJ determined that the examining physician’s opinion deserved
little weight, as the examination took place more than two years after the date last
insured, and it was inconsistent with objective medical evidence. In contrast, the

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ALJ was persuaded by a non-examining physician who thoroughly reviewed the
entire record and defended his positions at the disability hearing. The ALJ acted
within her authority in making that determination. See Ford v. Saul, 950 F.3d
1141, 1154 (9th Cir. 2020).
2. The ALJ also permissibly concluded that Appellant’s impairments
were not severe. A finding of disability requires a severe medically determinable
physical or mental impairment (or combination of impairments) that meets the
duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii). A “severe impairment”
must “significantly limit[]” the claimant’s “physical or mental ability to do basic
work activities.” Id. § 404.1520(c); see id. § 404.1522. An ALJ’s conclusion that
a claimant lacks a medically severe impairment or combination of impairments
must be supported by substantial evidence. See Webb v. Barnhart, 433 F.3d 683,
687 (9th Cir. 2005). Here, the ALJ made her determination based on a thorough
review of the medical record. The ALJ found further support in the testimony of
two medical experts. The ALJ’s conclusions were thus supported by substantial
evidence.
3. The ALJ permissibly discounted Appellant’s testimony, as well. “An
ALJ engages in a two-step analysis to determine whether a claimant's testimony
regarding subjective pain or symptoms is credible.” Garrison v. Colvin, 759 F.3d
995, 1014 (9th Cir. 2014). “[T]he ALJ must determine whether the claimant has

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presented objective medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms alleged.” Id.
(citation omitted). “If . . . there is no evidence of malingering, the ALJ can reject
the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.” Id. at 1014-15 (citation and
internal quotation marks omitted).
The ALJ acknowledged that “the claimant suffered from medically
determinable impairments of degenerative disc disease of the cervical, lumbar and
thoracic spines . . . through the date last insured . . . .” However, the ALJ found the
records “devoid of any objective findings establishing these conditions as ‘severe’
impairments.” While the ALJ recognized that Appellant complained of serious
back pain in May 2006 and February 2009 medical visits, she noted unremarkable
findings and observations, such as Appellant appearing in no acute distress in
February 2009. In referencing a July 2009 medical treatment for gastrointestinal
bleed, the ALJ acknowledged that the record mentions chronic back pain; however,
the ALJ highlighted that back pain was not listed as a symptom, and medical
observations were unremarkable for spinal health, range of motion, and
motor/sensory deficits. The ALJ permissibly concluded that this was “inconsistent
with the claimant’s allegations of disabling limitations during this period.” The
ALJ’s citation to the expert medical opinions of two physicians further bolstered

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these findings. The ALJ thus met the requisite standard of providing “specific,
clear and convincing reasons” for rejecting Appellant’s claims of severe
impairment during the relevant period. Garrison, 759 F.3d at 1014-15.
AFFIRMED.

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