David Van GILDER, Plaintiff-Appellant, v. Nancy A. BERRYHILL, Acting Commissioner Social Security, Defendant-Appellee.
No. 16-55338
United States Court of Appeals, Ninth Circuit.
November 21, 2017
597
Pasadena, California
Filed November 21, 2017
Erika Bailey Drake, Attorney, Roger David Drake, Attorney, Law Offices of Erika Bailey Drake, Calabasas, CA, for Plaintiff-Appellant
Jessica O. Cheh, Assistant U.S. Attorney, USLA—Office of the U.S. Attorney, Los Angeles, CA, Elizabeth Firer, Special Assistant U.S. Attorney, Asim Hemant Modi, Special Assistant U.S. Attorney, Social Security Administration, Office of the General Counsel, San Francisco, CA, for Defendant-Appellee
Before: NGUYEN and HURWITZ, Circuit Judges, and SEEBORG,** District Judge.
MEMORANDUM ***
David Van Gilder appeals the district court‘s affirmance of the Commissioner‘s
1. The Administrative Law Judge (ALJ) erred at step three by failing to cite any evidence to substantiate her finding that Van Gilder‘s impairment did not meet or equal one listed in Appendix 1.
2. An ALJ must offer “specific, clear and convincing reasons” for rejecting a claimant‘s pain testimony. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). The ALJ did so, finding that Van Gilder‘s daily routine and sporadic treatment history undermined his testimony. Gaps in medical treatment “may be the basis for an adverse credibility finding” unless a claimant fails to seek treatment because of inadequate funds, Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007), and the ALJ noted that Van Gilder failed to seek treatment despite the availability of “reduced pay or free treatment at any clinic.”
Van Gilder argues that the ALJ erroneously relied on his unemployment benefits and an accompanying declaration that he was able and willing to work. Although a failed work attempt may not alone provide a clear and convincing reason for rejecting pain testimony, see Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007), such evidence can be used, as here, to assess a claimant‘s credibility, see Bray v. Comm‘r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
3. The district court correctly found the ALJ‘s failure to specifically address the testimony of Van Gilder‘s mother to be harmless error. The testimony was consistent with the ALJ‘s conclusions. See Molina v. Astrue, 674 F.3d 1104, 1115-17 (9th Cir. 2012).
4. The ALJ erred by failing to make specific findings connecting Van Gilder‘s residual functional capacity (RFC) to his past work. After determining a claimant‘s RFC, the ALJ must determine whether a claimant can perform the demands of his previous employment or other jobs available in the national economy.
5. Van Gilder also argues that his subsequent successful disability application contains new, material evidence that warrants remand. Remand is required when the decisions granting and denying benefits are inconsistent, see Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010), and evidence submitted after the ALJ‘s initial decision can be considered if it “relates to the period on or before the ALJ‘s decision.” Brewes v. Comm‘r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). But, Van Gilder‘s subsequent successful disability application did not present new, material
AFFIRMED in part; REMANDED in part. Each party shall bear its own costs.