Keith Frierson v. Nancy Berryhill, 693 F. App'x 660

Keith Frierson appealed the district court's affirmance of the Commissioner’s denial of Disability Insurance Benefits and SSI under Titles II and XVI of the Social Security Act.
ALJ discounted parts of examining psychologist Kathleen Mayers, Ph.D.’s opinion that Frierson could not maintain attention/concentration for a full workday, citing inconsistency with the record and reliance on Frierson’s self-reports.
ALJ found Frierson performed substantial gainful activity up to his alleged onset date and that his reported symptoms were not fully credible.
The ALJ rejected lay witness statements as inconsistent with medical records and Frierson’s activities, and because many witnesses relied on Frierson’s non-credible reports.
At step five, a vocational expert identified 367,779 jobs from an aggregated group of three light, unskilled occupations (cleaner-housekeeper, ironer, laundry worker) that a person with Frierson’s RFC could perform; the ALJ found this number significant.
The Ninth Circuit affirmed, holding the ALJ gave legally sufficient reasons supported by substantial evidence for discounting the psychologist and lay testimony, and that the step-five showing was adequate (any error harmless).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ALJ permissibly discounted portions of examining psychologist’s opinion	Frierson: Dr. Mayers’s opinion that he could not sustain attention/concentration should control RFC	Comm’r: Opinion contradicted by record and based on Frierson’s unreliable self-reporting	ALJ properly gave little weight to contradicted portions; reasons were specific, legitimate, supported by substantial evidence
Whether ALJ properly rejected lay witness evidence	Frierson: Lay statements support greater limitations	Comm’r: Lay statements inconsistent with medical record and relied on Frierson’s non-credible reports	ALJ permissibly rejected lay evidence for germane reasons (inconsistency, reliance on claimant)
Whether past work and activities undermine claimed disability onset	Frierson: Limitations preclude past substantial gainful activity	Comm’r: Evidence shows performance of substantial gainful activity prior to onset	Substantial evidence supports ALJ’s finding of SGA before alleged onset; longstanding limitations did not prevent past work
Whether vocational expert testimony satisfied step five burden	Frierson: VE testimony insufficient because job count aggregated three DOT occupations	Comm’r: VE testified claimant could perform all three; aggregation appropriate and number is significant	Court held aggregation and total job number adequate; any error about specific jobs was harmless

Hill v. Astrue, 698 F.3d 1153 (9th Cir. 2012) (standard of review and ALJ duty)
Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005) (past work showing longstanding limitations did not prevent work)
Burrell v. Colvin, 775 F.3d 1133 (9th Cir. 2014) (ALJ may reject doctor’s opinion based on claimant’s non-credible self-reports)
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685 (9th Cir. 2009) (non-imperative medical recommendations need not be included in RFC; rejecting lay testimony tied to claimant’s credibility)
Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012) (ALJ may discount lay testimony for germane reasons)
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155 (9th Cir. 2008) (consistency with treatment and activities supports ALJ findings)
Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996 (9th Cir. 2015) (step five burden of proof principles)
Barker v. Sec’y of Health & Human Servs., 882 F.2d 1474 (9th Cir. 1989) (aggregation of related job numbers permissible)
Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519 (9th Cir. 2014) (what constitutes a significant number of jobs)
Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015) (harmless error standard in Social Security cases)