NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 27 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN V. MILLER, No. 16-56635

Plaintiff-Appellant, D.C. No. 5:14-cv-02029-GW-SP v.

NANCY A. BERRYHILL, Acting MEMORANDUM* Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted April 13, 2018 Pasadena, California

Before: ROGERS,** BYBEE, and WATFORD, Circuit Judges.

Claimant John Miller appeals the district court’s judgment affirming the

Commissioner’s denial of benefits. Miller’s arguments on appeal are unavailing.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John M. Rogers, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. At his hearing before the Administrative Law Judge (ALJ), Miller testified

that he could sit for only twenty to thirty minutes, could lift at most two to three

pounds, and that he spends most of his day lying down. Following the required

two-step analysis, see Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014), the

ALJ determined that this testimony regarding the severity of Miller’s symptoms

was not credible. In this appeal, Miller’s primary contention is that the ALJ

improperly relied in part on benign medical imaging to find him non-credible, even

though his physical limitations are in fact caused by hardware in his back from a

prior surgery, and so the lack of spinal abnormalities shown in the medical imaging

does not call Miller’s credibility into question given that the hardware is the root of

his problems.

Even assuming that Miller is correct, his argument still fails because the ALJ

gave several other “specific, clear and convincing reasons” for rejecting Miller’s

testimony. See id. (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).

For instance, the ALJ noted that Miller’s treating physician never imposed any

work restrictions (other than a recommendation that Miller not perform “heavy

work”), and this lack of limitations was inconsistent with the severity of the

symptoms reported by Miller. The ALJ was entitled to consider this conspicuous

gap in the medical evidence. See, e.g., Burch v. Barnhart, 400 F.3d 676, 681 (9th

Cir. 2005). The ALJ also reasoned that Miller’s testimony was undercut by the

2 16-56635 fact that he had worked before the alleged onset date with approximately the same

impairments, as evidenced by medical imaging showing no change to his lumbar

spine or the surgery site from before the alleged onset date to afterward, as well as

various range-of-motion and pain tests that remained the same before and after the

alleged onset date. This was permissible. “[A]n ALJ may weigh inconsistencies

between the claimant’s testimony and his or her . . . work record . . . .” Bray v.

Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). Finally, the

ALJ observed that an examining physician had noted the presence of “confounding

factors,” which might indicate that Miller was magnifying his symptoms. A

claimant’s tendency to exaggerate is another permissible reason to find him non-

credible. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). In sum, the

ALJ gave several specific, clear and convincing reasons for discounting Miller’s

credibility, which are supported by substantial evidence in the record as a whole.

Although Miller suggests that these reasons suffer from their own flaws, his

arguments to this effect are unpersuasive. Thus, even if the ALJ did not consider

the possible effects of Miller’s hardware, any such deficiency did not compel

rejection of the ALJ’s overall credibility evaluation. See, e.g., Molina v. Astrue,

674 F.3d 1104, 1115 (9th Cir. 2012).

Miller also contends that the district court erred in declining to remand his

case to the ALJ to consider new evidence of a November 2014 procedure to

3 16-56635 surgically remove a nerve sheath tumor from his left ankle, but this argument is

also without merit. Under 42 U.S.C. § 405(g), “[r]emand for consideration of new

evidence is appropriate if a claimant presents evidence that is material to

determining disability, and there is good cause for the failure to produce the

evidence earlier.” Wainwright v. Sec’y of Health & Human Servs., 939 F.2d 680,

682 (9th Cir. 1991). To qualify for such a remand, a claimant must present new

evidence that is “material,” i.e., it “must bear ‘directly and substantially on the

matter in dispute,’” Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001)

(quoting Ward v. Schweiker, 686 F.2d 762, 764 (9th Cir. 1982)), and the claimant

must show “a ‘reasonable possibility’ that the new evidence would have changed

the outcome of the administrative hearing,” id. (citing Booz v. Sec’y of Health &

Human Servs., 734 F.2d 1378, 1380–81 (9th Cir. 1984)).

The district court correctly concluded that this new evidence relating to

Miller’s ankle condition was not material. Miller has not shown the requisite

reasonable possibility that the new evidence would have altered the ALJ’s

decision. The new evidence does not demonstrate any significant new functional

limitations, either before or after the surgery. To the contrary, it shows that Miller

had a successful surgery, after which the only limitations placed on him were to

“avoid walking barefoot” in the event he had nerve damage, and to wear well-

padded shoes. Miller relies on our decision in Wainwright, 939 F.2d at 680, but

4 16-56635 that case is distinguishable. In Wainwright, the ALJ had found the claimant’s

assertions of severe pain to be non-credible because they were not supported by

objective medical evidence. Id. at 681. After the ALJ’s decision, however, a new

MRI scan showed a previously unseen disc fragment in the claimant’s spine. We

found this new MRI scan to be material because the claimant’s physician opined

that “the fragment ‘may well have been there’ earlier, but could not be detected

due to the state of MRI technology,” and the MRI scan therefore “may provide a

medical basis for [the claimant’s] allegations of disabling pain.” Id. at 683. Here,

by contrast, the new evidence of Miller’s ankle condition does not undermine the

ALJ’s reasons for finding Miller’s testimony to be non-credible, nor does it show

any additional functional limitations that might have led the ALJ to find him

disabled. Accordingly, the new evidence is not material, and Miller was properly

denied a remand.

Miller raises several additional arguments, but they are also without merit.

The judgment of the district court is affirmed.

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