                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               JUN 14 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


TAMI GEBHARD,                                    No.   17-35055

              Plaintiff-Appellant,               D.C. No. 1:15-cv-00487-JE

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

              Defendant-Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                    John Jelderks, Magistrate Judge, Presiding

                             Submitted May 9, 2018**
                                Portland, Oregon

Before: RAWLINSON and CHRISTEN, Circuit Judges, and GARBIS,*** 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 Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
      Appellant Tami Gebhard (Gebhard) appeals the district court’s order

affirming the denial of social security benefits. Gebhard contends that res judicata

barred the ALJ’s determination that her mental impairments were not severe.

Gebhard maintains that the ALJ failed to properly weigh the medical opinions

supporting a determination that she was disabled, and did not provide sufficient

reasons for rejecting her symptom testimony. Gebhard further asserts that the ALJ

erred in failing to consult a vocational expert (VE).

      The ALJ was not required to determine that Gebhard suffered from a severe

mental impairment premised on medical opinions submitted in support of her prior

unsuccessful application. See Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir.

2009), as amended (explaining that “[n]ormally, an ALJ’s findings that a claimant

is not disabled creates a presumption that the claimant continued to be able to work

after that date”) (citation and internal quotation marks omitted). In determining

that Gebhard was not disabled, the ALJ relied on the opinion of a medical expert,

who reviewed the entire medical history concerning Gebhard’s mental condition

and determined that Gebhard did not suffer from a severe mental impairment.

Additionally, the prior medical opinion relied on by Gebhard did not support a

finding that she suffered from a disabling impairment.




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      The ALJ did not err in rejecting testimony from a consultative medical

examiner that Gebhard had limitations associated with fingering and raising her

left arm based on the opinion of a nurse practitioner. The ALJ observed that,

contrary to the consultative examiner’s testimony, there was no medical evidence

that Gebhard suffered from carpal tunnel syndrome. The ALJ correctly concluded

that there were no objective medical tests supporting these limitations, and

Gebhard confirmed that she did not have carpal tunnel syndrome.

      The ALJ provided the requisite germane reasons for affording only “some

weight” to the opinion of a nurse practitioner stating that Gebhard was not capable

of fully performing sedentary exertion. See Revels v. Berryhill, 874 F.3d 648, 655

(9th Cir. 2017) (explaining that “an ALJ may give less deference” to those “not

within the definition of acceptable medical sources . . . if the ALJ gives reasons

germane . . . for doing so”) (citation and internal quotation marks omitted). The

ALJ reasonably concluded that the functional limitations questionnaire completed

by the nurse practitioner lacked any supporting physical examinations or testing

indicating that Gebhard was limited to restricted sedentary exertion.

      The ALJ provided specific and convincing reasons for finding Gebhard “not

entirely credible.” The ALJ’s decision was supported by Gebhard’s daily activities

reflecting that she could perform at least sedentary work, her inconsistent


                                          3
testimony regarding the reason she was dismissed from her prior employment, the

lack of supporting medical evidence, and the fact that she sought work while

collecting unemployment benefits. See Rollins v. Massanari, 261 F.3d 853, 857

(9th Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole

ground that it is not fully corroborated by objective medical evidence, the medical

evidence is still a relevant factor in determining the severity of the claimant’s pain

and its disabling effects. . . .”) (citation omitted); see also Trevizo v. Berryhill, 871

F.3d 664, 682 (9th Cir. 2017), as amended (“Engaging in daily activities that are

incompatible with the severity of symptoms alleged can support an adverse

credibility determination . . .”) (citation omitted); Ghanim v. Colvin, 763 F.3d

1154, 1165 (9th Cir. 2014) (“Continued receipt of unemployment benefits does

cast doubt on a claim of disability, as it shows that an applicant holds [herself] out

as capable of working. . . .”) (citation omitted).

      Finally, the ALJ did not err in failing to consult a VE because Gebhard did

not demonstrate “sufficiently severe” non-exertional limitations that “significantly

limit[ed] the range of work permitted by [her] exertional limitations.” Hoopai v.

Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007).

      AFFIRMED.




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