                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 16 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JOYCE ANN RYAN-WERRY,                            No. 13-35753

              Plaintiff - Appellant,             D.C. No. 3:12 cv-05445 JLR

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Acting
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 June 2, 2015**
                               Seattle, Washington

Before: O’SCANNLAIN, TASHIMA, and McKEOWN, Circuit Judges.

      Joyce Ryan-Werry (“Ryan-Werry”) appeals from the district court’s order

affirming the Administrative Law Judge’s (“ALJ”) denial of benefits. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      1.     Ryan-Werry argues that the ALJ erred by according “little weight” to

the opinions of three of her treating and examining physicians, Drs. John Daniel,

Fletcher Taylor, and Loren McCollom, and by according “some weight” to another

examining physician, Dr. Terilee Wingate. Where, as here, “a treating or

examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ

may only reject it by providing specific and legitimate reasons that are supported

by substantial evidence.” Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012)

(citations, internal quotation marks, and alteration omitted).

             a.     The ALJ properly discredited Dr. Daniel’s opinion because his

conclusions were inconsistent with Ryan-Werry’s own testimony. See Morgan v.

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602-03 (9th Cir. 1999) (upholding an

ALJ’s rejection of a treating physician’s opinion where the “ALJ cited to testimony

from [the claimant] that conflicted with the” physician’s testimony). For example,

Dr. Daniel opined that Ryan-Werry would “not be able to perform” various

functions with her hands, fingers, and arms “at all” – including “[f]ine[ly]

[m]anipulat[ing]” her fingers, or grasping, turning, or twisting objects with her

hands. This conclusion was contradicted by Ryan-Werry’s own testimony that she

could dust, fold laundry, play the piano, and use the computer. Similarly, Dr.

Daniel opined that Ryan-Werry could “rarely” turn her head right or left, look up,


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or hold her head in a static position. This conclusion was at odds with Ryan-

Werry’s testimony that she could drive a car.

      In addition, the ALJ properly disregarded Dr. Daniel’s opinion because it

was inconsistent with the medical record as a whole. See Tommasetti v. Astrue,

533 F.3d 1035, 1041 (9th Cir. 2008) (“The incongruity between [a physician’s

assessment] and [a claimant’s] medical records provides an additional specific and

legitimate reason for rejecting [the physician’s] opinion of [the claimant’s]

limitations.”). Among other inconsistencies, Dr. Daniel’s observations in his

December 2009 assessment, including that Ryan-Werry’s neuropathy “affects her

physical mobility,” and that she had “difficulty performing her day-to-day jobs,”

were at odds with an evaluation performed when Ryan-Werry visited the

emergency room just two months prior, in which Ryan-Werry “reported no major

physical problems,” denied that she had “loss of strength or sensation” and had no

“problems walking.”

             b.    The ALJ also properly discredited Dr. Taylor’s opinion because

it was inconsistent with Ryan-Werry’s own testimony. See Morgan, 169 F.3d at

602-03. Dr. Taylor opined that Ryan-Werry had “no useful ability” to, among

other things, “maintain attention for two hour segment[s]”; that she was unable to

“satisfactorily perform” a range of tasks, including “[r]emember[ing] work-like


                                          3
procedures,” “[m]ak[ing] simple work-related decisions,” “[a]ccept[ing]

instructions,” and “[g]et[ting] along with coworkers or peers without unduly

distracting them or exhibiting behavioral extremes”; and that she was “seriously

limited” in her ability to understand and carry out “very short and simple

instructions.” These conclusions were contradicted by Ryan-Werry’s own

statements that she could follow recipes and spoken instructions, gets along with

authority figures “OK,” and sends e-mails and sets up appointments on her

computer.

      Furthermore, the ALJ properly rejected Dr. Taylor’s conclusions because his

assessment was performed at a time when Ryan-Werry was not taking her

medication. “Impairments that can be controlled effectively with medication are

not disabling for the purpose of determining eligibility for SSI benefits.” Warre v.

Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Accordingly,

an evaluation (like Dr. Taylor’s) conducted at a time when Ryan-Werry was not

completely on her medications undermines its reliability, and the ALJ did not err

by discrediting Dr. Taylor’s opinion for this reason.

             c.    The ALJ also properly rejected Dr. McCollom’s opinion

because it contained several unexplained inconsistencies. See Bayliss v. Barnhart,

427 F.3d 1211, 1216 (9th Cir. 2005) (holding that a discrepancy between a


                                          4
physician’s notes and his opinions as to a claimant’s capabilities was a specific and

legitimate reason to reject the opinion). Among other things, Dr. McCollom’s

observation that Ryan-Werry’s cognitive and mental ability “to relate to others,

including fellow workers and supervisors did not appear to be limited” was at odds

with his recommendation that Ryan-Werry be restricted to jobs “in which she is

limited in the amount of time she has to spend interacting with others.”

             d.     Finally, the ALJ properly accorded Dr. Wingate’s opinion

“some weight.” Ryan-Werry argues that the ALJ erred by “failing to fully discuss

and fully credit” Dr. Wingate’s “clinical findings and opinion,” and further erred

by “failing to include in his residual functional capacity assessment all of the

limitations Dr. Wingate described in her evaluation.” However, Ryan-Werry fails

to identify which, if any, of Dr. Wingate’s findings the ALJ failed to “fully credit.”

By and large, the ALJ’s residual functional capacity (“RFC”) assessment was

consistent with Dr. Wingate’s assessment. Accordingly, the ALJ did not err in

according Dr. Wingate’s opinion “some weight.”

      2.     Next, Ryan-Werry argues that the ALJ erred by failing to discuss

several items of evidence in assessing Ryan-Werry’s RFC. In assessing the scope

of a claimant’s disability, an ALJ is not required to discuss all evidence presented

to him; rather, he need only touch upon “significant probative evidence.” Vincent


                                          5
v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (per curiam) (citation and internal

quotation marks omitted). Ryan-Werry has offered no argument as to why the

items of evidence she identifies are “significantly probative” of her RFC.

Accordingly, the ALJ did not err by failing to discuss these items of evidence.

      3.     Ryan-Werry further argues that the ALJ erred by failing to “properly

evaluate” Ryan-Werry’s testimony regarding her symptoms and limitations.

Where, as here, a claimant “‘produce[s] objective medical evidence of an

underlying impairment’ or impairments that could reasonably be expected to

produce some degree of symptom,” an ALJ may reject a claimant’s testimony

“‘about the severity of her symptoms only by offering specific, clear and

convincing reasons for doing so,’” absent affirmative evidence of malingering.

Tommasetti, 533 F.3d at 1039 (quoting Smolen v. Chater, 80 F.3d 1273, 1281,

1281-84 (9th Cir. 1996)).

      In this case, the ALJ offered specific, clear and convincing reasons for

discrediting Ryan-Werry’s testimony about the severity of her symptoms. First,

the ALJ relied upon a series of inconsistencies between Ryan-Werry’s medical

records and her testimony. See Morgan, 169 F.3d at 599-600 (affirming an ALJ’s

rejection of a claimant’s testimony regarding the severity of his symptoms based

on “contradictions between [the claimant’s] reports to” one physician “and his


                                         6
reports to” another); see also SSR 96-7p, 61 Fed. Reg. 34483, 34486 (July 2, 1996)

(“One strong indication of the credibility of an individual’s statements is their

consistency, both internally and with other information in the case record.”). For

example, in a “Disability Report” form submitted to the Social Security

Administration (“SSA”) in September of 2009, Ryan-Werry reported that she

could not “walk very far without assistance,” and had “chronic fatigue.” However,

during a visit to the emergency room just a month later, Ryan-Werry denied

suffering from “shortness of breath, loss of strength or sensation,” and further

denied that she had “problems walking.” Similarly, Ryan-Werry’s statement in the

September 2009 report to the SSA that her “neurological pain” prevented her from

“walking very far and cause[d] severe pain,” is contradicted by her statement to her

physician during a November 19, 2009 doctor’s visit that she was “not

significantly tender or having symptoms in the feet.”

      The ALJ also found Ryan-Werry’s testimony not credible because she gave

“inconsistent statements about her ending work in 2003.” In her September 2009

report to the SSA, Ryan-Werry reported that she stopped working in 2003 for

several reasons, including “[b]ecause of [her] condition.” The ALJ found this

statement to be at odds with Ryan-Werry’s statements during the May 19, 2011

hearing, in which Ryan-Werry testified that she “got sick in 2006,” and that she


                                          7
was able to “walk 3 miles with no problem” before 2006. These inconsistencies

furnished yet another “clear and convincing” reason to discount Ryan-Werry’s

testimony. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (affirming

an ALJ’s rejection of a claimant’s testimony because the claimant stated that he

“left his job because he was laid off, rather than because he was injured”).

      4.     Next, Ryan-Werry argues that the ALJ failed to “properly evaluate lay

witness evidence”–specifically, the testimony of Ryan-Werry’s husband, David

Werry. The ALJ discounted Werry’s testimony because 1) he was married to

Ryan-Werry; 2) “he presumably lives in the same household with her;” and, 3)

because Werry “has a financial interest in [Ryan-Werry] obtaining benefits.”

      The ALJ erred in rejecting Werry’s testimony for these reasons. We have

repeatedly warned against discounting a lay witness’ testimony simply because the

witness is a claimant’s spouse, and is therefore an “interested party.” Valentine v.

Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir 2009). “Such a broad

rationale for rejection contradicts [this Court’s] insistence that, regardless of

whether they are interested parties, ‘friends and family members in a position to

observe a claimant’s symptoms and daily activities are competent to testify as to

his or her condition.’” Id. (quoting Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th

Cir. 2009)) (brackets omitted). By rejecting Werry’s testimony because he shared


                                           8
a household with Ryan-Werry, and had a financial stake in her award of benefits,

the ALJ ran afoul of our requirement.

      Nonetheless, we conclude that, in this case, the error was harmless. See

Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (“We

recognize harmless error applies in the Social Security context.”). Ryan-Werry

fails to identify how or why Werry’s observations would alter the ALJ’s RFC

determination. Moreover, Werry’s statements about his wife’s functional abilities

largely mirror Ryan-Werry’s own assessment. Discrediting cumulative evidence is

not harmful error. See Molina v. Astrue, 674 F.3d 1104, 1119 & n.10 (9th Cir.

2012) (noting that, in social security cases, we “apply the same kind of ‘harmless-

error’ rule that courts apply in civil cases” (quoting Shinseki v. Sanders, 556 U.S.

396, 406 (2009)) (internal quotation marks omitted); see also Bank of the W. v.

Commercial Credit Fin. Servs., Inc., 852 F.2d 1162, 1165 n.2 (9th Cir. 1988)

(holding that a district court’s erroneous exclusion of a witness’ declaration was

harmless because the declaration was “cumulative of other evidence”).

      5.     Ryan-Werry further argues that the ALJ’s assessment of her RFC was

erroneous because the ALJ misstated the testimony of a vocational expert (“VE”).

In his decision, the ALJ stated that the VE had testified that “a person with [Ryan-




                                          9
Werry’s RFC] and background would be able to perform” certain jobs, including

jobs as an “order clerk and a skill training program coordinator.”

      Ryan-Werry is correct that the VE never gave such testimony; however, the

error was harmless. Once again, Ryan-Werry has failed to offer anything more

than a conclusory argument as to why this misstatement of the VE’s testimony was

harmful error. The ALJ did not rely on any portion of the VE’s testimony in

making his decision as to Ryan-Werry’s RFC. Accordingly, the ALJ’s error was

not harmful. See Stout, 454 F.3d at 1055 (“We have also affirmed under the rubric

of harmless error where the mistake was nonprejudicial to the claimant or

irrelevant to the ALJ’s ultimate disability conclusion.”).

      6.     Finally, Ryan-Werry offers a conclusory argument that the ALJ erred

by “improperly determin[ing] Ryan-Werry’s RFC.” This argument is little more

than a summation of all the errors previously discussed (and rejected). For the

reasons set forth above, the errors identified by Ryan-Werry are either meritless or

harmless.

      AFFIRMED.




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