Barbara G. Noah v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA G. NOAH,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-35796
D.C. No. 6:15-CV-01803-BR
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted April 23, 2018**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Barbara Noah appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Noah’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of
FILED
APR 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and 42
U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th
Cir. 2016), and we affirm.
The administrative law judge (“ALJ”) did not err in finding Noah’s
impairments did not meet or equal Listing 12.07 for somatoform disorders.
Although the ALJ found Noah did not meet any of the Paragraph B criteria under
Listing 12.07, Noah argues the ALJ did not properly analyze Noah’s physical and
mental impairments in combination and that, contrary to the ALJ’s finding, her
limitations on her daily living activities rise to the “marked” level. However,
Noah’s arguments do not show the ALJ erred in finding Noah’s combination of
impairments do not fulfill the Paragraph B criteria–rather, Noah advocates for an
alternative interpretation of the evidence. Because the ALJ supported her
conclusions concerning Noah’s level of limitation with substantial evidence and
provided a rational interpretation of the record, we will uphold the ALJ’s decision.
See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Noah’s contention that the ALJ erred by not articulating a proper rationale
for finding Noah’s impairments did not equal Listing 12.07 also lacks merit. While
Noah argues her conditions equal this listing because her impairments result in her
being as functionally limited as those deemed to meet the listing, this is precisely
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the type of argument this court has rejected as inadequate to establish equivalency
to a listed impairment. A claimant cannot illustrate equivalency by “showing that
the overall functional impact of her . . . impairments is as severe as that of a listed
impairment.” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citation and
internal quotation marks omitted). Instead, a claimant shows equivalency by
“present[ing] medical findings equal in severity to all the criteria for the one most
similar listed impairment.” Id. (citation and internal quotation marks omitted); see
also Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). Noah does not proffer the
requisite specific explanation as to how the medical evidence shows her
impairments are medically equivalent to Listing 12.07. In addition, an “ALJ is not
required to discuss the combined effects of a claimant’s impairments or compare
them to any listing in an equivalency determination, unless the claimant presents
evidence in an effort to establish equivalence.” Kennedy, 738 F.3d at 1178 (citation
and internal quotation marks omitted); accord Lewis, 236 F.3d at 514. Because
Noah did not present a specific theory as to how her conditions medically equaled
Listing 12.07, the ALJ did not err.
The ALJ did not err in discounting Noah’s testimony. The ALJ applied the
requisite two-step framework and cited specific, clear, and convincing reasons for
discounting Noah’s statements. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th
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Cir. 2017). The ALJ cited inconsistencies in Noah’s testimony, contradictory
objective medical evidence, and conflicting medical testimony. See Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Bray v. Comm’r of Soc. Sec. Admin.,
554 F.3 1219, 1227 (9th Cir. 2009); Robbins v. Soc. Sec. Admin., 466 F.3d 880,
887 (9th Cir. 2006). While Noah contends it was improper for the ALJ to “single
out ‘a few periods of temporary well-being . . .’ in an attempt to discredit Noah,”
the record indicates Noah’s treatment providers made similar assessments that
Noah was in no acute distress, appeared well nourished, and displayed a normal
mood over a series of appointments spanning several years. Because the ALJ’s
interpretation of the record is reasonable and supported by substantial evidence, the
ALJ did not err by factoring this information into the analysis of Noah’s testimony.
See Revels, 874 F.3d at 654.
Although Noah takes issue with the ALJ’s reliance on her failure to quit
smoking as a reason to discount her testimony, the ALJ proffered additional
reasons supported by the record for discounting Noah’s testimony. Therefore, “the
ALJ’s reliance on [Noah’s] continued smoking, even if erroneous, amounts to
harmless error.” Bray, 554 F.3d at 1227.
Noah also contests the ALJ’s comment that Noah “is a single mother of a
child diagnosed with significant mental health problems” who “feels
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uncomfortable leaving her son alone” and “has significant motive to remain at
home.” Noah argues this amounts to “unsupported speculation” about Noah’s
motivation for seeking disability benefits and is not supported by the record.
However, the ALJ’s statement was not included with the portion of the ALJ’s
decision analyzing Noah’s testimony. Rather, the ALJ was recognizing the
“competing interests in [Noah’s] life are understandably difficult,” while
nevertheless concluding that “it does not appear that her severe physical or mental
problems would reasonably preclude her from performing a range of unskilled
light work” within the limitations included in her RFC. As a result, this argument
does not address the grounds upon which the ALJ actually discounted Noah’s
testimony.
The ALJ did not err by discounting lay witness testimony from Noah’s
friend Michelle Dieke. Noah asserts the ALJ did not provide the requisite germane
reasons for discounting Ms. Dieke’s statements because she rejected the lay
witness testimony for the same reasons she discounted Noah’s statements, and the
ALJ did not properly evaluate Noah’s testimony. Because Noah has not shown the
ALJ erred by discounting her own testimony, and Ms. Dieke’s report is
substantially similar to Noah’s subjective complaints, which the ALJ provided
clear and convincing reasons for discounting, “it follows that the ALJ also gave
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germane reasons for rejecting [Ms. Dieke’s] testimony.” Valentine v. Comm’r Soc.
Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).
Finally, Noah contends the ALJ’s hypothetical to the vocational expert was
incomplete because it did not include all of Noah’s symptoms and limitations as
described in her own testimony, Ms. Dieke’s testimony, and the medical opinion
evidence. However, these assertions depend upon the errors Noah alleged
concerning previous steps in the sequential evaluation. Because Noah has not
shown the ALJ erred elsewhere in her analysis, this argument lacks support. See
Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008).
AFFIRMED.
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