NABIS SMITH v. SAUL (2019)

MEMORANDUM **

Kay Ann Nabis-Smith appeals the district court’s judgment affirming the Commissioner of Social Security’s (Commissioner’s) denial of her 2015 application for supplemental security income (SSI) benefits. We affirm.

Because the Commissioner had denied Nabis-Smith’s earlier application for SSI benefits in 2012, the administrative law judge (ALJ) could presume that Nabis-Smith continued to be able to work unless Nabis-Smith proved “changed circumstances”—i.e., that her impairments had become more severe. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); SSAR 97-4(9), 62 Fed. Reg. 64,038, 64,039 (Dec. 3, 1997). Substantial evidence supports the ALJ’s conclusion that Nabis-Smith failed to do so. See Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984).

The ALJ provided “ ‘specific and legitimate reasons’ ․, supported by substantial evidence,” to discount some of Dr. Spiller’s opinions regarding the extent of Nabis-Smith’s purported disability. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). The ALJ also reasonably concluded that the opinions of Drs. Piercey and Smyth were not sufficient to show that Nabis-Smith’s condition had deteriorated since 2012. See Meanel v. Apfel, 172 F.3d 1111, 1113–14 (9th Cir. 1999); see also Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222–23 (9th Cir. 2010). Finally, the ALJ gave “specific, clear and convincing reasons,”¹ supported by substantial evidence, to discredit Nabis-Smith’s claim of complete disability on the grounds that it was inconsistent with both her daily activities ² and the level of treatment she received.³ Thus, the ALJ properly adopted the 2012 residual functional capacity (RFC) assessment, which incorporated all of Nabis-Smith’s pertinent limitations.⁴

Although the ALJ erred in relying on vocational expert testimony from the 2012 hearing that was not in the record,⁵ the error was harmless because Nabis-Smith’s RFC remained the same and, therefore, the vocational expert testimony would remain the same. See Tommasetti, 533 F.3d at 1038; see also McLeod, 640 F.3d at 888.

AFFIRMED.

FOOTNOTES

1.   Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks omitted); see also id. at 1112–13.

2.   See id. at 1113; see also Burch v. Barnhart, 400 F.3d 676, 680–81 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

3.   See Molina, 674 F.3d at 1113–14; Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).

4.   See Turner, 613 F.3d at 1223; Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008); see also McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011).

5.   Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (per curiam); see also 20 C.F.R. § 416.1453(a).