NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUL 09 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ROBERT D. SHERMAN, No. 13-35042

Plaintiff - Appellant, D.C. No. 1:12-cv-00035-CSO

v.

MEMORANDUM*

CAROLYN W. COLVIN, Commissioner of Social Security Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of Montana Carolyn S. Ostby, Magistrate Judge, Presiding

Argued and Submitted May 14, 2014 Seattle, Washington

Before: O’SCANNLAIN, KLEINFELD, and BERZON, Circuit Judges.

Robert Sherman appeals the denial of his application for supplemental

security income under the Social Security Act. We “reverse only if the ALJ’s

decision was not supported by substantial evidence in the record as a whole or if

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. the ALJ applied the wrong legal standard.” Molina v. Astrue, 674 F.3d 1104, 1110

(9th Cir. 2012). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.1

Substantial evidence supports the ALJ’s adverse credibility determination.

The ALJ offered “specific, clear and convincing reasons” for rejecting Sherman’s

testimony about his limitations and pain to the extent that his testimony conflicted

with the residual functional capacity assessment. Molina, 674 F.3d at 1112

(internal quotation marks omitted). First, the ALJ noted Sherman’s sporadic work

history before he filed for disability and the fact that his job rehabilitation services

case worker closed his file for failure to cooperate and participate in job searching.

See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

Second, the ALJ relied on physicians’ observations that Sherman exhibited

“self-limiting behaviors” and had “poor credibility.” Dr. Hurd, an examining

physician, reported that Sherman “refused to do many of the exam maneuvers” and

“used less than actual effort.” See id. (holding that a claimant’s failure “to give

maximum or consistent effort during two physical capacity evaluations” supported

1 We order that the excerpts of record, filed under seal, be unsealed.

2 the ALJ’s adverse credibility finding). He also observed Sherman perform

multiple tasks that were inconsistent with his alleged limitations. See Carmickle v.

Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction

with the medical record is a sufficient basis for rejecting the claimant’s subjective

testimony.”). Dr. Hurd’s findings were consistent with other physicians’

observations. Dr. Goodell, a treating physician, said that Sherman’s “inability to

cooperate/participate” and “unwillingness to participate in a physical exam”

prevented her from testing his physical abilities. Sherman refused to bear weight

during the exam. When Dr. Goodell left the room, however, he was able to climb

up on the exam table to take a nap. Similarly, Dr. Mozer, an examining

psychologist, described Sherman as “evasive” and commented on his failure to

give a “valid effort.”

Third, the ALJ reasonably concluded that Sherman’s medical conditions did

not limit his daily activities to the extent that he claimed. No doctor placed any

restrictions on Sherman’s activities. See Burch v. Barnhart, 400 F.3d 676, 681 (9th

Cir. 2005) (“Although lack of medical evidence cannot form the sole basis for

discounting pain testimony, it is a factor that the ALJ can consider in his credibility

analysis.”). Further, the ALJ found that Sherman’s daily marijuana use contributed

3 to his lack of activity. Dr. Mozer opined that Sherman had “very marginal

motivation” and is “basically doing what he wants to do (sit around and smoke

pot).” The ALJ’s conclusion that marijuana use can impact daily activities, social

functioning, and concentration is reasonable, so we must accept it. See

Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).

To the extent that the ALJ might have erred in relying on Sherman’s failure

to get back surgery when he did not have money or insurance, see Orn v. Astrue,

495 F.3d 625, 638 (9th Cir. 2007), any error was harmless in light of the ALJ’s

other findings that provide substantial evidence for the adverse credibility

determination. See Carmickle, 533 F.3d at 1162.

Sherman argues that the ALJ rejected the opinions of his treating physicians.

We disagree. The ALJ considered the opinions of Dr. Verby, Dr. Quenemon, Dr.

Goodell, and Dr. Draper, and their opinions are consistent with the ALJ’s finding

that Sherman has severe degenerative disc and joint disease in his back and

osteoarthritis in his hands. The ALJ’s written decision was not required to discuss

every piece of evidence. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.

2003). Sherman challenges the residual functional capacity assessment, but he has

4 not shown how it is inconsistent with any physician’s opinion. No physician

placed any restrictions on Sherman’s activities or diagnosed any physical

impairments beyond those found by the ALJ.

We also reject Sherman’s claim that the ALJ ignored the opinions of mental

health care providers that he was depressed. After considering the evidence that

Sherman claims was ignored, the ALJ ruled that Sherman’s alleged depression is

“either not medically determinable, due to the lack of a formal diagnosis, or is

nonsevere.” The ALJ’s determination is supported by substantial evidence.

Sherman was never diagnosed with depression. Dr. Mozer said that depression

was “questionable” and he ruled it out of consideration by finding that if Sherman

does have depression it is “mild,” “certainly not limiting,” and “a natural

consequence of an empty lifestyle.” Likewise, Dr. Martin, a non-examining

physician, testified that there was not much support in the record for depressive

disorder. Sherman’s depression was not assessed by any other acceptable medical

source. See 20 C.F.R. § 404.1513(a). The ALJ gave a “germane” reason, Molina,

674 F.3d at 1111, for rejecting Sherman’s other source evidence, noting that the

therapist who assessed his global functioning assessment score did not diagnose

5 depression. For the same reason, the ALJ properly discounted Sherman’s answers

to mental health questionnaires.

Because the ALJ did not completely rule out the possibility that Sherman

has mild depression, we assume without deciding that he was required to consider

it in assessing Sherman’s residual functional capacity. “The ALJ is required to

consider all of the limitations imposed by the claimant’s impairments, even those

that are not severe.” Carmickle, 533 F.3d at 1164. In this case, however, Sherman

has not shown that his alleged depression resulted in any functional limitations that

the ALJ failed to consider. See Burch, 400 F.3d at 684.

Finally, we reject Sherman’s claim that the ALJ ignored the findings of Dr.

McFarland, a state agency reviewing psychologist, and Dr. Mozer that he has

difficulties maintaining concentration, persistence, and pace as a result of his anti-

personality disorder. Sherman is correct that the residual functional capacity

assessment does not specifically mention limitations in concentration, persistence,

and pace. This omission, however, does not constitute reversible error. We held in

Stubbs–Danielson v. Astrue, that a residual functional capacity assessment

“adequately captures” a claimant’s limitations in concentration, persistence, and

6 pace as long as the assessment is “consistent with restrictions identified in the

medical testimony,” 539 F.3d 1169, 1174 (9th Cir. 2008).

Here, the ALJ, like the one in Stubbs–Danielson, adopted the only “concrete

restrictions” identified by Sherman’s physicians. See id. Both Dr. McFarland and

Dr. Mozer concluded that Sherman is capable of unskilled work, despite his

functional limitations. Dr. McFarland said that Sherman “would do best at work

that does not require dealing with the public or working closely with others” but he

is able to “understand, carry out and remember simple instructions,” and “respond

appropriately to supervision, coworkers and work situations.” The ALJ gave Dr.

McFarland’s opinion “significant weight” and noted that the residual functional

capacity assessment is consistent with her findings. We agree. The assessment

includes routine unskilled jobs with occasional to frequent new learning and

excludes jobs that require constant dealing with the public, large groups of people,

distracting situations, constant critical supervision, high constant focus

requirements, and high constant stress requirements. To the extent that the ALJ

might have erred by also including semi-skilled jobs, this error was harmless

because the ALJ found that Sherman is capable of performing unskilled jobs that

exist in significant numbers in the national economy. See Molina, 674 F.3d at

7 1115 (“[A]n ALJ’s error is harmless where it is inconsequential to the ultimate

nondisability determination.” (internal quotation marks omitted)).

The ALJ gave the vocational expert a hypothetical based on the residual

functional capacity assessment. For the reasons discussed above, we conclude that

the hypothetical properly included all of Sherman’s limitations that are supported

by substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217–18 (9th Cir.

2005).

AFFIRMED.

8

FILED

Sherman v. Colvin, No. 13-35042 JUL 09 2014 BERZON, Circuit Judge, Dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Substantial evidence does not support the ALJ’s finding that claimant Robert

Sherman lacks credibility. Accordingly, I dissent.

I.

1. Contrary to the ALJ’s assessment, Sherman’s sporadic work history

before his 2009 filing date is entirely consistent with his testimony. Sherman’s

back injury occurred in 1992. Although he attempted to keep working after the

injury, his back problems worsened in 1998, when he re-injured himself in a car

accident. When Sherman protectively filed in 2009, he alleged a disability onset

date of 1998. He amended that date because he did not have the medical records to

prove his case that far back. But treatment notes from 2001 and 2004 do indicate

that Sherman was in serious pain from back problems during this time, and that

when he did work, he “exacerbated his injury in the low[er] back.” Thus,

Sherman’s sporadic work history before his filing date does not show that factors

other than his disability prevented him from working, and is in fact consistent with

his account of his back injury.

2. The second reason the panel gives in support of the ALJ’s credibility

determination is Sherman’s lack of cooperation with state vocational rehabilitation

services. The record does not support such a finding. The Montana Vocational Rehabilitation Program (“Montana Vocational”)

reports as a whole confirms Sherman’s alleged limitations and illustrates that it was

his disability that prevented him from finding work. Those records show that

Sherman thought he could do short-term, but not long-term driving, as long as

lifting was not required. The vocational school “only had . . . long term over the

road stuff,” and short-run jobs not involving lifting were not available for

inexperienced drivers.

Sherman did receive his Commercial Driver’s License, and tried some

driving jobs, but they turned out to require lifting as much as 70 pounds, which he

could not handle. At a meeting with Sherman, Montana Vocational recognized

that the agency had been “unsuccessful in finding a driving job for Robert that

does not involve heavy lifting and labor.”

Only after these failures did Sherman invite Montana Vocational to close his

case. In doing so, he explained that he did it because “my back’s not in the best of

shape right now, and I kinda need to wait until a few months from now;” “I can’t

really work 3-5 hours and I can’t really put in a 5-day work week either.”

In short, the vocational program reports support rather than disprove

Sherman’s recurring back pain and physical inability to work.

3. Sherman’s failure to have back surgery was also an inappropriate

2 ground for rejecting Sherman’s testimony. “[I]f a claimant complains about

disabling pain but fails to seek treatment, or fails to follow prescribed treatment,

for the pain, an ALJ may use such failure as a basis for finding the complaint

unjustified or exaggerated.” Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). But

there are four problems with the ALJ’s doing so here.

First, there is no clear prescription during the period at issue that Sherman

should follow through with back surgery. Second, there are indications, in two

doctors’ reports, that Sherman did not have back surgery when it was previously

recommended because he could not afford it, and that he remained interested in

doing so if he could obtain funding for it. “[D]isability benefits may not be denied

because of the claimant’s failure to obtain treatment he cannot obtain for lack of

funds.” Id. (quoting Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995)); see

Regennitter v. Commissioner of the Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th

Cir. 1999). Third, in light of that fact that Sherman has consistently sought

treatment for his back pain, his hesitancy to have a major surgery cannot cast doubt

on his claim. “It is common knowledge that spinal surgery is often dangerous and

entails much pain and suffering.” Schena v. Secretary of Health & Hum. Servs.,

635 F.2d 15, 20 (1st Cir. 1980) (reversing Secretary’s decision that claimant’s

rejection of spinal surgery barred him from disability benefits “[g]iven the

3 uncertain (and sometimes adverse) consequences of spinal surgery”) (internal

quotation marks omitted). While Social Security regulations require claimants to

follow “treatment prescribed by [a] physician” to receive benefits, the same

regulations make clear that if the claimant has “a good reason” for not following

the prescribed treatment, rejection of treatment will not be held against the

claimant. 20 C.F.R. § 416.930(a) & (b); see Molina v. Astrue, 674 F.3d 1104, 1114

(9th Cir. 2012); SSR 96–7p, 1996 WL 374186 (July 2, 1996). The regulations

further specify that an example of “a good reason for not following treatment” is

that “[t]he treatment because of its enormity (e.g., open heart surgery) . . . is very

risky for you.” 20 C.F.R. § 416.930(c)(4). Finally, Sherman did purse several

treatments for his back pain other than surgery (epidurals, pain medication,

physical therapy).

In short, the fact that Sherman has not yet had spinal surgery can have no

bearing on his credibility.

4. The ALJ also cited the lack of limitations placed on Sherman by his

treating physicians, and his physicians’ recommendation of exercise. However,

Sherman suffers from obesity and hypertension. So the exercise recommendation

is to be expected, and does not indicate ability to work.

Moreover, examination of the medical reports reveal a recognition that pain

4 might well limit Sherman’s ability to engage in the recommended treatment, as the

reports also include recommendations for rest and pain management, rather than

uniform recommendations of exercise.

5. Dr. Hurd’s statement that, in his view, Sherman overplayed his

limitations and had “poor credibility as an examinee” was based on Dr. Hurd’s

observations of Sherman’s behavior during the consultative exam. The ALJ was

entitled to consider Dr. Hurd’s view in assessing Sherman’s credibility.

However, Dr. Hurd’s evaluation was equivocal and stated only his “intuitive

feeling” that Sherman had a greater ability than he showcased. Moreover, Dr.

Hurd was a consulting examiner, so his opinion is entitled to less weight than the

opinions of treating physicians. See Holohan v. Massanari, 246 F.3d 1195, 1202

(9th Cir. 2001); 20 C.F.R. § 416.927(c). Not a single treating physician suggested

that Sherman was malingering or inventing pain. If they had, one would think they

would not have prescribed him serious pain medication and considered him a

candidate for spinal surgery. My colleagues in the majority refer to reports from

Drs. Goodell and Mozer. But Dr. Goodell cited Sherman’s “inability to cooperate/

participate,” (emphasis added), and Dr. Mozer was a consulting psychologist, who

did not evaluate Sherman’s physical disabilities.

Furthermore, the ALJ himself does not attribute significant weight to Dr.

5 Hurd’s finding, stating only that Dr. Hurd’s assessment “does not enhance the

claimant’s credibility,” and does not cite to either Dr. Goodell’s or Dr. Mozer’s

reports as supporting the credibility determination.

Finally, the ALJ rejected Sherman’s narration of his limited daily activities

as evidence of his disability, because his account was not objectively verifiable,

and because his limited daily activities could have been attributed to his marijuana

dependence. These remaining considerations do not constitute substantial evidence

supporting the ALJ’s credibility determination, and so the ALJ’s reliance on these

considerations does not make the aforementioned errors harmless. See Carmickle

v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (error is

harmless if “ALJ’s remaining reasoning and ultimate credibility determination

were adequately supported by substantial evidence in the record” (emphasis

omitted)).

II.

Had the ALJ credited Sherman’s testimony as true, he would have been

obliged to include Sherman’s testimony as to his limitations in determining

Sherman’s residual functioning capacity, including Sherman’s testimony that he

has to lie down to two or three times a day, throughout the day, for up to an hour or

two at a time to take the pressure off his back. According to the vocational

6 expert’s evidence at the ALJ hearing, including this limitation in the residual

functioning capacity results in a finding that Sherman was disabled. Therefore, I

would remand to the agency for calculation and an award of benefits. Lingenfelter

v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007).

For all these reasons, I respectfully dissent.

7