FILED

NOT FOR PUBLICATION

FEB 11 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HEAVEN L. HOWLAND, No. 18-36096

Plaintiff-Appellant, D.C. No. 3:17-cv-05957-JLR

v.

MEMORANDUM*

ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

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

Submitted February 5, 2020** Seattle, Washington

Before: M. SMITH and N.R. SMITH, Circuit Judges, and TUNHEIM,*** District Judge.

* 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 John R. Tunheim, United States Chief District Judge for the District of Minnesota, sitting by designation. Heaven L. Howland appeals the district court’s decision reversing and

remanding for further administrative proceedings the Commissioner of Social

Security’s denial of her applications for disability benefits. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm the judgment of the district court.

1. Aside from the unchallenged finding that the Administrative Law Judge

(“ALJ”) harmfully erred in considering Dr. Hander’s opinion, the ALJ did not

further err in weighing the medical evidence. With respect to Dr. Gaffield, the ALJ

reasonably interpreted Dr. Gaffield’s opinion to mean that Howland could stand or

walk for six hours out of an eight-hour workday with customary breaks and rest

periods. Although Howland proposes an alternative reading, that does not establish

that the ALJ’s interpretation of Dr. Gaffield’s opinion was unreasonable. See

Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is

susceptible to more than one rational interpretation, it is the ALJ’s conclusion that

must be upheld.”). Similarly, Howland does not explain the significance of the

ALJ’s failure to acknowledge that Dr. Gaffield did not review the CT and MRI

scans that showed Howland’s disc herniation. Because Howland bears the burden

of demonstrating harmful error, her conclusory argument unsupported by authority

or explanation fails. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)

(stating that the “burden of showing that an error is harmful normally falls upon

2 the party attacking the agency’s determination” (quoting Shinseki v. Sanders, 556

U.S. 396, 409 (2009))).

Next, the ALJ did not err in affording Dr. Rabie’s opinion “great weight.”

Although Dr. Rabie’s opinion predated Howland’s alleged disability onset date by

a few months, the ALJ explained that the opinion was particularly relevant,

because it demonstrated that Howland’s condition following her vehicle accident

had “largely improved” within a year of the accident. The ALJ also afforded Dr.

Rabie’s opinion “great weight,” because it was consistent with the objective

medical evidence, Howland’s performance during her physical examination, and

Howland’s own statements regarding her abilities. See 20 C.F.R.

§§ 404.1527(c)(3)–(4), 416.927(c)(3)–(4). Ultimately, the ALJ’s decision to afford

Dr. Rabie’s opinion “great weight” is supported by substantial evidence and is free

of legal error. See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).

The ALJ also did not err in affording Dr. Kwock’s opinion “great weight.”

Howland argues the ALJ erred because Dr. Kwock’s opinion failed to “consider or

account” for Howland’s symptom testimony. However, as explained below, the

ALJ did not harmfully err in discounting Howland’s subjective symptom

testimony. Thus, Dr. Kwock’s failure to “consider or account” for this testimony is

of diminished import. Additionally, the ALJ afforded Dr. Kwock’s opinion “great

3 weight,” because Dr. Kwock explained his opinion in detail, see Garrison v.

Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (noting that the weight afforded a non-

examining physician’s testimony depends on the extent to which the non-

examining physician provides supporting explanations for the opinion), and Dr.

Kwock’s opinion was consistent with the limitations identified by Dr. Gaffield and

Dr. Rabie, see 20 C.F.R. §§ 404.1527(c)(4); 416.927(c)(4). These findings are

supported by substantial evidence.

Finally, the ALJ afforded “great weight” to Dr. Hander’s opinion that

Howland could perform “work at the light exertional level[,] except she could

stand/walk for four hours and sit for more than six hours in a eight-hour day.”

Howland advances two arguments to show the ALJ erred in evaluating Dr.

Hander’s opinion. We do not address Howland’s first argument, because it simply

reiterates the grounds upon which the district court reversed.1 As to the second

argument, Howland argues that the ALJ erred by failing to acknowledge that,

contrary to Dr. Hander’s opinion that Howland “[was] improving,” she was found

1 The district court reversed and remanded for further administrative proceedings, because the ALJ harmfully erred when he failed to explain why he did not include Dr. Hander’s four-hour standing or walking limitation in either his residual functional capacity (“RFC”) assessment or the hypotheticals to the vocational expert. Appellee did not file a cross-appeal challenging this aspect of the district court’s order. 4 disabled two months later. However, as the district court explained, the ALJ that

issued the first decision in this matter, found that Howland’s RFC “significantly

declined starting on June 1, 2012, as she experienced a progressive worsening in

physical health impacting her overall ability to engage in even basic activities of

daily living.” Thus, Dr. Hander’s opinion was not invalidated simply because

Howland’s condition significantly deteriorated two months after the opinion was

issued.2

2. The ALJ did not harmfully err in discounting Howland’s testimony, because

the ALJ offered several “specific, clear and convincing reasons for doing so.”

Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison, 759

F.3d at 1015). Indeed, substantial evidence supports the ALJ’s findings that

Howland’s testimony regarding the severity of her symptoms was inconsistent with

the objective medical evidence and the medical record as a whole. See Carmickle,

533 F.3d at 1161 (“Contradiction with the medical record is a sufficient basis for

rejecting the claimant’s subjective testimony.”). Additionally, the ALJ also

2 Howland devotes a substantial portion of her opening brief to summarizing certain medical findings and then concludes that the findings support her testimony and confirm she was experiencing a severe mood disorder. Because Howland failed to specifically and distinctly argue these matters, we do not address them. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). 5 highlighted “other inconsistencies” in Howland’s file that further undermined the

weight that could be given to Howland’s testimony.

The ALJ did err in relying on Howland’s daily activities to discount her

subjective symptom testimony when the ALJ failed to explain how Howland’s

daily activities were inconsistent with her testimony. See Orn v. Astrue, 495 F.3d

625, 639 (9th Cir. 2007). But, because the ALJ offered other specific, clear and

convincing reasons for discounting Howland’s testimony, the ALJ’s error is

“inconsequential to the ultimate nondisability determination.” See Molina, 674

F.3d at 1115 (quoting Carmickle, 533 F.3d at 1162).

3. The ALJ gave germane reasons supported by substantial evidence for

discounting the lay testimony of Howland’s friend, Mr. James K. Wood, Jr. See

Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1007 (9th Cir. 2015) (noting

that, “to discount competent lay witness testimony, the ALJ must give reasons that

are germane to each witness”). The ALJ recognized that Mr. Wood’s statements

largely expressed the same limitations described in Howland’s own testimony,

which the ALJ properly discounted. Thus, because the ALJ offered specific, “clear

and convincing reasons for rejecting [Howland’s] own subjective complaints, . . . it

follows that the ALJ also gave germane reasons for rejecting [Mr. Wood’s]

6 testimony.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.

2009).

4. The ALJ’s RFC assessment and step-five findings are not supported by

substantial evidence, because the district court correctly determined (and Appellee

does not challenge the finding) that the ALJ harmfully erred by failing to include

Dr. Hander’s four-hour standing/walking limitation in the ALJ’s RFC assessment.

See Valentine, 574 F.3d at 690. However, aside from the unchallenged harmful

error identified by the district court, Howland’s further arguments related to the

ALJ’s RFC and step-five findings are simply derivative of Howland’s earlier

arguments addressed and rejected above. Thus, Howland’s further arguments fail.

See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008).

5. The district court did not abuse its discretion by remanding the case for

further proceedings rather than remanding for an automatic award of disability

benefits under the credit-as-true test. See Garrison, 759 F.3d at 1020. “An

automatic award of benefits in a disability benefits case is a rare and prophylactic

exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880

F.3d 1041, 1044 (9th Cir. 2017). The district court determined that the appropriate

remedy is to remand the case for further proceedings because, inter alia, “[t]here

are conflicts in the medical evidence that the court is not in a position to decide.”

7 The judgment of the district court reversing and remanding for further

administrative proceedings is AFFIRMED, and the matter is REMANDED to the

district court with instructions to remand for further administrative proceedings

consistent with its previous order.

8