Amy F. Elliott v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMY F. ELLIOTT,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-16085
D.C. No. 2:15-cv-00569-KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kendall J. Newman, Magistrate Judge, Presiding
Submitted November 13, 2017**
San Francisco, California
Before: GOULD and MURGUIA, Circuit Judges, and GRITZNER,*** District
Judge.
Amy Elliot appeals a district court decision affirming the denial of her
* 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 James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
FILED
DEC 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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application for Supplemental Security Income benefits. She makes three
arguments on appeal. First, she argues that the administrative law judge (ALJ)
improperly discounted a treating physician’s opinion that she could not concentrate
on simple tasks. Second, she argues that the ALJ improperly discounted the same
physician’s opinion that she could never stoop. Finally, she argues that the ALJ
did not adequately address the side-effects of her prescription medications,
including constipation and an inability to operate machinery. For the reasons
stated below, we affirm the district court’s decision.
We review the district court’s decision de novo to assess whether the ALJ’s
decision “was supported by substantial evidence and a correct application of the
law.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)
(citation omitted). “Substantial evidence” is evidence that a reasonable mind
might accept as adequate to support a conclusion, based on the record as a whole.
Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
Regarding Elliot’s ability to stoop and ability to concentrate, the ALJ’s
determination of Elliot’s residual functional capacity was supported by substantial
evidence. Elliot’s treating physician noted on a checklist that her pain or other
symptoms would “frequently” be “severe enough to interfere with attention and
concentration needed to perform even simple work tasks” and that she could
“never” stoop. While a treating physician’s opinion is normally given controlling

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weight, an ALJ can reject a contradicted opinion of a treating physician for
“specific and legitimate reasons that are supported by substantial evidence.”
Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (citation omitted). An
examining physician’s opinion can serve as specific and legitimate reasons for
rejecting a treating physician’s opinion if it is based on an independent
examination. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
Here, a licensed psychologist examined Elliot and found that she had, at
worst, a mild psychological impairment of her ability to perform a range of work-
related activities. The physician reached this conclusion based on several clinical
tests. And the physician took into account Elliot’s pain. A different examining
physician found that Elliot could occasionally stoop. Again, this physician based
this opinion on several clinical tests, determining that Elliot could “bend over
within one foot of touching the floor” and that she had 0-50 degree flexion in the
lumbar region and 0-50 degree flexion in the cervical region. In both cases there
was substantial evidence supporting the ALJ’s conclusions. Moreover, because the
ALJ ultimately adopted the treating physician's residual functional capacity
findings, any error was harmless. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d
1050, 1055 (9th Cir. 2006) (Harmless error may occur "where the mistake was
nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate disability
conclusion.”)

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Elliot also claims that side-effects of her medication—constipation and an
inability to operate machinery—were not considered by the ALJ. Elliot has the
burden of showing that her constipation severely interferes with her ability to
work. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.
2009) (in the five-step process for assessing whether a claimant is entitled to SSI
benefits, the claimant has the burden at step two to show that she has a severe
impairment and at steps three and four to show that the impairment limits her
residual functional capacity). Elliot has provided no evidence that constipation
impeded her ability to work—not even subjective testimony at the hearing. She
also claims that her constipation should have been included in the hypothetical to
the vocational expert. But we have held that where, as here, there is only passing
mention of the side-effect in the medical record, and no evidence that it is severe
enough to interfere with work, the ALJ does not err by relying on the vocational
expert’s response to a hypothetical question that does not include the side-effect.
Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001).
Finally, any error related to Elliot’s inability to operate machinery is
harmless. And “we may not reverse an ALJ’s decision on account of an error that
is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Of the three
jobs noted by the vocational expert, none requires the use of machinery. See
DICOT 706.684-022 (small products assembler), DICOT 211.462-010 (cashier),

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and DICOT 295.367-026 (storage-facility rental clerk). Regardless of this alleged
error, the ALJ identified a sufficient number of jobs in the national economy that
Elliot could perform.
AFFIRMED.

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