Michael Hall v. Nancy Berryhill ( 2017 )


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  •                            NOT FOR PUBLICATION                             FILED
    UNITED STATES COURT OF APPEALS                         DEC 15 2017
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MICHAEL W. HALL,                                No.    14-35797
    Plaintiff-Appellant,            D.C. No. 2:13-cv-01679-JLR
    v.
    MEMORANDUM*
    NANCY A. BERRYHILL, Acting
    Commissioner Social Security,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Western District of Washington
    James L. Robart, District Judge, Presiding
    Submitted November 30, 2017**
    Before:      THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
    Judges.
    Michael Hall appeals the district court’s decision affirming the
    Commissioner of Social Security’s denial of Hall’s application for Social Security
    disability insurance benefits and supplemental security income under Titles II and
    *
    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).
    XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We
    review de novo, Ghanim v. Colvin, 
    736 F.3d 1154
    , 1159 (9th Cir. 2014), and we
    reverse and remand for further proceedings.
    The ALJ gave treating therapist Mr. Arnold’s July 2011 opinion significant
    weight, finding it accurately reflected the longitudinal medical evidence. Mr.
    Arnold’s November 2011 addendum to his July 2011 opinion, which the Appeals
    Council considered, was part of the record. Brewes v. Comm’r of Soc. Sec. Admin.,
    
    682 F.3d 1157
    , 1159-60 (9th Cir. 2012). Mr. Arnold’s November 2011 addendum
    to his July 2011 opinion deprives the ALJ’s decision denying benefits of
    substantial evidence because Mr. Arnold opined in November 2011 that Hall’s
    “bipolar disorder includes cycles of severe depression every two to three months
    that increase isolation severely and would cause [Hall] to miss multiple days of
    work.” The ALJ’s disability determination expressly relied on the testimony of the
    vocational expert, who testified that employers would tolerate one absence per
    month, but “typically -- if someone’s going to be absent or late or leave early on a
    regular basis more than say once a month. That could potentially lead to
    termination.” See 
    id. at 1165
    (considering additional evidence submitted to the
    Appeals Council that claimant was likely to miss multiple days of work per month
    due to mental impairments and reversing and remanding where vocational expert
    testified that a person who would miss that much work was unemployable).
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    The ALJ gave germane reasons for discounting Mr. Arnold’s September
    2010 opinion. The opinion was inconsistent with treatment notes, inconsistent
    with Hall’s activities, and relied too heavily on Hall’s subjective complaints.
    Molina v. Astrue, 
    674 F.3d 1104
    , 1114 (9th Cir. 2012) (holding that the ALJ must
    give a germane reason to reject testimony that is not from a medically acceptable
    source). It was harmless error for the ALJ to reject Mr. Arnold’s opinion, because
    he is not an acceptable medical source.
    The ALJ gave specific and legitimate reasons for assigning only “little
    weight” to Dr. Edwards’s opinion. The opinion was inconsistent with Hall’s
    mental status examination score and with the record as a whole, and Dr. Edwards
    relied too heavily on Hall’s self-reports. Lester v. Chater, 
    81 F.3d 821
    , 830-31
    (9th Cir. 2014) (holding that the ALJ must make findings setting forth specific and
    legitimate reasons in order to reject the contradicted opinion of an examining
    physician).
    The ALJ reasonably agreed with the opinions of Dr. Fisher and Dr. Fligstein
    and appropriately noted that they did not have the opportunity to review
    subsequent treatment records that showed that Hall interacted well with providers
    and group members, which undermined their conclusions regarding his need for a
    structured work setting.
    3                                       14-35797
    The ALJ followed the correct legal standard by identifying sufficiently
    specific, clear and convincing reasons that are supported by substantial evidence in
    the case record for discounting Hall’s credibility regarding the debilitating effects
    of his symptoms: (1) Hall did not comply with doctors’ recommendations
    regarding medication; (2) his symptoms are generally stable when compliant with
    recommendations, as evidenced by his work during the alleged disability period;
    (3) he did not pursue ongoing treatment for panic attacks; (4) there were
    inconsistencies between his subjective complaints and activities of daily living; (5)
    he has high concentration and memory scores on examinations; and (6) he appears
    unmotivated to work. See 
    Molina, 674 F.3d at 1112
    (listing among proper
    considerations for credibility assessment an inadequately explained failure to seek
    or follow treatment and engagement in activities of daily living that are
    inconsistent with the alleged symptoms); Tommasetti v. Astrue, 
    533 F.3d 1035
    ,
    1040 (9th Cir. 2008) (holding that credibility is undermined when disability is
    controlled by medication); Batson v. Comm’r of Soc. Sec. Admin., 
    359 F.3d 1190
    ,
    1196–97 (9th Cir. 2004) (noting that medical records inconsistent with a claimant’s
    allegations as a permissible reason to find claimant not credible); Thomas v.
    Barnhart, 
    278 F.3d 947
    , 959 (9th Cir. 2002) (affirming an ALJ’s determination the
    claimant’s little propensity to work “negatively affected her credibility regarding
    her inability to work”). The ALJ incorrectly discounted Hall’s credibility for
    4                                      14-35797
    making inconsistent statements about his sobriety, but this was harmless error
    because other reasons for discounting Hall’s testimony adequately support the
    ALJ’s credibility determination, and each finds ample support in the record.
    
    Batson, 359 F.3d at 1197
    (concluding that, even if the record did not support one
    of the ALJ’s stated reasons for disbelieving a claimant’s testimony, the error was
    harmless).
    The ALJ gave germane reasons for assigning limited weight to the testimony
    of Hall’s mother. Her testimony was inconsistent with the overall medical record,
    including the treatment notes; Hall recovered from his back injury; his mental
    symptoms improved when he complied with his doctors’ recommendations; and
    his mental status testing was normal. Bayliss v. Barnhart, 
    427 F.3d 1211
    , 1218
    (9th Cir. 2005); Lewis v. Apfel, 
    236 F.3d 503
    , 511 (9th Cir. 2001).
    The ALJ’s assessment of the residual functional capacity (“RFC”) did not
    include Mr. Arnold’s limitation in the November 2011 addendum that Hall would
    miss more than one day of work per month. 
    Bayliss, 427 F.3d at 1217
    . Because
    the functional limitations identified by the ALJ in the RFC for medium work were
    not supported by the medical evidence in the record, the sequential evaluation
    process should be reevaluated. See Valentine v. Comm’r of Soc. Sec. Admin., 
    574 F.3d 685
    , 690 (9th Cir. 2009) (explaining that the limitations included in the
    hypothetical propounded to a vocational expert needs to be supported by
    5                                      14-35797
    substantial record evidence). It is not clear from the administrative record that the
    ALJ would be required to award benefits if the medical evidence were reevaluated
    with Mr. Arnold’s November 2011 addendum to his July 2011 opinion. Treichler
    v. Comm’r of Soc. Sec. Admin., 
    775 F.3d 1090
    , 1101 (9th Cir. 2014) (“Where there
    is conflicting evidence, and not all essential factual issues have been resolved, a
    remand for an award of benefits is inappropriate.”). Accordingly, we remand for
    further proceedings.
    REVERSED and REMANDED.
    6                                    14-35797