NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 5 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS M. SHULTES, Jr., No. 16-36061

Plaintiff-Appellant, D.C. No. 2:16-cv-00201-JLR

v.

MEMORANDUM*

NANCY A. BERRYHILL, Acting Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Submitted December 3, 2018**

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges

Douglas Shultes appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of Shultes’s application for

Supplemental Security Income under Title XVI of the Social Security Act. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo, Brown-Hunter v.

* 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). Colvin, 806 F.3d 487, 492 (9th Cir. 2015), and we affirm.

1. The Administrative Law Judge (ALJ) did not violate the law of the case

doctrine by relying on Shultes’s activities to discredit the opinions of Dr. Sandvik

and Dr. Schimmel, as well as Shultes’s testimony. See Stacy v. Colvin, 825 F.3d

563, 567 (9th Cir. 2016) (applying law of the case doctrine to the court’s review of

Social Security Administration decisions). The ALJ reconsidered Shultes’s

activities based on new evidence from 2011 to 2015, subsequent to the first

hearing, which included evidence of new social activities and work activities. See

id. (explaining that the law of the case doctrine is discretionary and should not be

applied when the evidence on remand is substantially different).

2. Nor did the ALJ err in weighing the records of examining mental health

professionals. The ALJ gave specific and legitimate reasons supported by

substantial evidence to reject Dr. Cunningham’s opinion. See Garrison v. Colvin,

759 F.3d 995, 1012 (9th Cir. 2014). First, the ALJ concluded that Shultes’s

activities, including caring for his grandmother and volunteering at a local

automotive shop, were inconsistent with Dr. Cunningham’s conclusion regarding

limitations in maintaining appropriate behavior, performing routine tasks,

exercising judgment, and tolerating normal work expectations. See Ghanim v.

Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Second, the ALJ rejected Dr.

Cunningham’s opinion based on inconsistencies with later medical evidence

2 16-36061 showing that Shultes had no complaints of hallucinations or other psychotic

symptoms and largely normal mental status examinations. See id. at 1161. Any

error in relying on additional reasons was harmless because the ALJ provided other

specific and legitimate reasons to reject Dr. Cunningham’s opinion. See Molina v.

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

Similarly, the ALJ rejected Dr. Sandvik’s opinion based on inconsistencies

with Shultes’s activities and inconsistencies with later medical records showing

normal mental status examinations. See Ghanim, 763 F.3d at 1161-62. Any error

in relying on additional reasons was harmless because the ALJ provided other

specific and legitimate reasons to reject Dr. Sandvik’s opinion. See Molina, 674

F.3d at 1115.

The ALJ gave “minimal weight” to Dr. Schimmel’s opinion based on

inconsistencies with Shultes’s activities, showing an ability to perform simple

work tasks and manage social interactions, and inconsistencies with treatment

records showing normal mental status examinations. See Ghanim, 763 F.3d at

1161-62.

Finally, the ALJ provided specific and legitimate reasons to reject Dr.

Griffin’s opinion, including inconsistency with later medical evidence showing

normal mental status examinations with no evidence of hallucinations or delusions,

and inconsistency with Shultes’s activities. See id. Any error in relying on

3 16-36061 additional reasons was harmless because the ALJ provided other specific and

legitimate reasons to reject Dr. Griffin’s opinion. See Molina, 674 F.3d at 1115.

3. The ALJ did not err in weighing the examining mental health professionals’

records, and Shultes’s challenge to the ALJ giving significant weight to Dr.

Postovoit’s opinion is therefore inapposite. Further, the ALJ’s residual functional

capacity (RFC) was supported by substantial evidence and reasonably included

limitations to simple, routine tasks, minimal supervisor contact, superficial

coworker contact, and no public contact. See Stubbs-Danielson v. Astrue, 539 F.3d

1169, 1174 (9th Cir. 2008) (upholding the ALJ’s assessment of the RFC where the

ALJ reasonably included all limitations supported by substantial evidence).

4. Shultes summarizes treatment notes, observations, and diagnoses from

several medical providers, including Ms. Jasso-Porter and Mr. Baxter, suggesting

that the ALJ did not properly consider them. However, his arguments are

conclusory and are therefore waived. See Carmickle v. Comm’r, Soc. Sec. Admin.,

533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (explaining that a claimant waives an

issue by failing to argue it “with any specificity” in their opening brief).

5. The ALJ provided several clear and convincing reasons supported by

substantial evidence to discredit Shultes’s testimony. See Trevizo v. Berryhill, 871

F.3d 664, 678 (9th Cir. 2017). First, the ALJ rejected Shultes’s testimony based on

medical evidence showing improvement in his mental health symptoms with

4 16-36061 treatment. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008)

(concluding that the claimant’s improvement in response to conservative treatment

undermined “reports regarding the disabling nature of his pain”). Second, the ALJ

rejected Shultes’s testimony regarding the severity of his symptoms based on lack

of consistent treatment. See Molina, 674 F.3d at 1113. Substantial evidence

supports the ALJ’s conclusion that despite his homelessness, Shultes was able to

get mental health care when he chose to. Third, the ALJ considered lack of

supporting objective medical evidence as one factor in discrediting Shultes’s

testimony. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Finally, the

ALJ discredited Shultes’s testimony based on inconsistencies in his daily activities.

See id. at 680-81. Any error in relying on additional reasons was harmless because

the ALJ provided several clear and convincing reasons for rejecting Shultes’s

testimony. See Carmickle, 533 F.3d at 1162. Shultes waived any additional

contentions regarding the ALJ’s credibility finding by failing to argue them with

any specificity in his opening brief. See id. at 1161 n.2.

6. The ALJ provided germane reasons for rejecting the lay testimony of Ms.

Shultes, namely inconsistency with the treatment records and with Shultes’s

activities. See Molina, 674 F.3d at 1114 (“[I]f the ALJ gives germane reasons for

rejecting testimony by one witness, the ALJ need only point to those reasons when

rejecting similar testimony by a different witness.”).

5 16-36061 7. Shultes’s challenge to the ALJ’s assessment of the RFC and step five

findings merely repeats Shultes’s earlier contentions of error regarding the medical

evidence. See Stubbs-Danielson, 539 F.3d at 1175-76 (explaining that the claimant

fails to raise any fresh issue with regard to the RFC and step five by repeating

earlier contentions of error).

AFFIRMED.

6 16-36061