Cathleen R. Brown v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHLEEN R. BROWN,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 17-35232
No. C16-5244-JPD
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue, Magistrate Judge, Presiding
Submitted May 24, 2018**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Cathleen R. Brown appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for supplemental
security income under Title II of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review the district court’s
* 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
MAY 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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order de novo and the agency’s decision for substantial evidence and legal error.
Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). We affirm.
The ALJ did not err in evaluating Brown’s testimony. The ALJ proffered
specific, clear, and convincing reasons, supported by substantial evidence, for
discounting portions of Brown’s testimony. See Trevizo v. Berryhill, 871 F.3d 664,
679 (9th Cir. 2017) (ALJ must provide specific, clear, and convincing reasons for
rejecting the claimant’s testimony about the severity of her symptoms); see also
Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (“Where evidence is
susceptible to more than one rational interpretation, the ALJ’s decision should be
upheld.” (citation and internal quotation marks omitted)); Bray v. Comm’r Soc.
Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding no error where the ALJ
considered inconsistencies between the claimant’s testimony and objective medical
evidence as one of many reason for discounting the testimony). Even if the ALJ
erred by discounting Brown’s testimony based on her failure to seek treatment, any
error was harmless because the ALJ provided other valid reasons for discounting
the testimony and substantial evidence supports the ALJ’s conclusions. See
Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)
(explaining harmless error analysis); Orn v. Astrue, 495 F.3d 625, 636-38 (9th Cir.
2007) (although an ALJ may discount a claimant’s testimony based on a failure to
seek treatment, the failure must be “unexplained, or inadequately explained” and

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“disability benefits may not be denied because of the claimant’s failure to obtain
treatment [s]he cannot obtain for lack of funds”).
Brown’s omission of additional testimony concerning her sleep apnea does
not demonstrate that the ALJ neglected her duty to fully and fairly develop the
record. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (claimant
bears the burden of proving disability; “An ALJ’s duty to develop the record
further is triggered only when there is ambiguous evidence or when the record is
inadequate to allow for proper evaluation of the evidence.”).
Even if the ALJ erred by failing to provide substantial evidentiary support
for discounting lay witness testimony by Brown’s husband, Peter Brown, any error
was harmless because the testimony described substantially similar limitations as
Brown’s testimony, and the “ALJ’s reasons for rejecting [Brown’s] testimony
apply with equal force to the lay testimony.” Molina, 674 F.3d at 1122.
The ALJ did not err in formulating Brown’s RFC by failing to include in the
hypothetical to the vocational expert restrictions that Brown’s attorney added when
questioning the vocational expert. See Magallanes v. Bowen, 881 F.2d 747, 756-57
(9th Cir. 1989) (“The ALJ is not bound to accept as true the restrictions presented
in a hypothetical question propounded by a claimant’s counsel. Rather, the ALJ is
free to accept or reject those restrictions as long as they are supported by
substantial evidence.” (citation and internal quotation marks omitted)). Having

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determined that Brown was not disabled, the ALJ was not obligated to proceed to
Step Five. See Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010).
We decline to address Brown’s contention that the ALJ’s analysis of
Brown’s testimony about fibromyalgia symptoms violated Social Security Ruling
12-2p because Brown failed to argue this issue with any specificity in her briefing.
See Carmickle, 533 F.3d at 1161 n.2.
AFFIRMED.

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