Ryan v. Commissioner of Social Security ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN L. RYAN,  No. 06-15291
Plaintiff-Appellant, D.C. No.
v.  CV-03-02657-
COMMISSIONER OF SOCIAL SECURITY, DFL/CMK
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding
Argued and Submitted
December 5, 2007—San Francisco, California
Filed June 18, 2008
Before: Betty B. Fletcher, William C. Canby, Jr., and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge B. Fletcher;
Dissent by Judge Rawlinson
7031
7034 RYAN v. COMMISSIONER OF SOCIAL SECURITY
COUNSEL
Harvey P. Sackett, Esq., Attorney at Law, San Jose, Califor-
nia, for the plaintiff-appellant.
John C. Cusker, United States Attorney, Office of the General
Counsel Social Security Administration, San Francisco, Cali-
fornia, for the defendant-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Plaintiff-Appellant Karen L. Ryan appeals the district
court’s order granting summary judgment in favor of the
Defendant-Appellee, upholding the Commissioner of Social
Security’s decision denying her application for Title II dis-
ability benefits. The Administrative Law Judge (“ALJ”) did
not give full weight to the opinions of two examining psy-
chologists, characterizing their opinions as too heavily based
on Ryan’s “subjective complaints,” and as being inconsistent
with the records of Ryan’s treating physician, a family practi-
tioner. There was no inconsistency. The records of Ryan’s
treating physician, if anything, supported the examining psy-
chologist’s assessment that Ryan was incapable of maintain-
ing a regular work schedule. Because substantial evidence
does not support the ALJ’s denial of disability benefits, we
reverse.
RYAN v. COMMISSIONER OF SOCIAL SECURITY 7035
I. BACKGROUND
A. The claimant’s medical history.
Prior to filing for disability, Ryan worked for several years
as a cashier and attendant at a garbage transfer station. She
was placed on administrative leave in October 1999 after fail-
ing a random drug test and was ultimately terminated in late
1999. After she was fired, in December 1999 Ryan began to
complain to her treating physician, family practitioner Dr.
Neva Monigatti-Lake, that she was suffering “feelings of
immobility, panic attacks, [and] crying spells.” Dr. Monigatti-
Lake’s notes from that early December visit indicated an
assessment of “anxiety disorder,” and she increased Ryan’s
dosage of anti-depressants. When Ryan visited Dr. Monigatti-
Lake a week later, she continued to assess her with “anxiety
disorder, improving” and “depression, improving.” On Ryan’s
next visit to Dr. Monigatti-Lake on March 1, 2000, the diag-
nosis was still “anxiety disorder,” with no indication that
Ryan had improved. Dr. Monigatti-Lake’s observation notes
indicated that during the March 1 visit Ryan was “coherent
but very agitated. Rapid speaking and hand movements.”
Those symptoms persisted. When Ryan visited Dr. Monigatti-
Lake on March 15, 2000, she noted again that Ryan was “very
agitated but coherent,” diagnosed anxiety disorder, and
referred Ryan to counseling. When Dr. Monigatti-Lake saw
Ryan again on April 4, 2000, she continued to diagnose anxi-
ety disorder and noted rapid speech. Dr. Monigatti-Lake
referred Ryan to the Department of Social Services on May
2, 2000 and enclosed her treatment records.
Ryan underwent a comprehensive psychiatric evaluation by
Dr. Rajinder Randhawa on May 27, 2000. Dr. Randhawa
observed that Ryan was “very distraught, edgy, nervous,
shaky, and keeps shaking her legs throughout the evaluation.
She appears to be somewhat anxious. . . . She speaks in a very
rapid manner at times. She is very repetitive and circumstan-
tial and is difficult to redirect.” Dr. Randhawa diagnosed
7036 RYAN v. COMMISSIONER OF SOCIAL SECURITY
Ryan with anxiety disorder and depression. Although Dr.
Randhawa’s prognosis was that Ryan was “treatable” and
“likely to improve,” the clinical notes also indicated that Ryan
“continues to experience significant anxiety and continuing
depression.” Dr. Randhawa’s functional assessment was that
Ryan “would not be able to maintain regular attendance in the
work place due to extreme anxiety and continuing depression,
especially when faced in a work like situation . . . . She would
not be able to complete a normal workday/workweek without
interruptions from her psychiatric condition at present. She is
not likely to deal with the usual stressors in a competitive
work place.” Dr. Randhawa predicted that Ryan could
improve and return to work with “skilled psychiatric treat-
ment with adequate psychiatric medication,” but the assess-
ment as of May 27 was that Ryan was incapable of
maintaining a regular work schedule.
Ryan’s treatment records were subsequently reviewed by
two non-examining physicians, Drs. Harman and Harrison.
On June 30, 2000, after completing check-boxes on a stan-
dardized form, Dr. Harman opined without elaboration that
“with continued [treatment] anticipate able to do complex in
low public with moderate impairments in ability to sustain
[concentration and attention] [persistence and pace] and abil-
ity to complete regular workweek without interruption from
her [psychological symptoms].” Dr Harrison affirmed Dr.
Harman’s opinion without comment on October 12, 2000.
Drs. Harman and Harrison, however, never examined Ryan or
reviewed her records after this assessment.1
1
Ryan, meanwhile, continued to see Dr. Monigatti-Lake for various
physical ailments. In a June 14, 2000 follow-up visit from knee surgery,
Dr. Monigatti-Lake noted that Ryan still had “quite a bit of anxiety” and
noted “anxiety disorder, improving.” Ryan also saw an internist, Dr. Julian
R. Espino, on December 2, 2000. Dr. Espino’s examination was primarily
physical, although he included a diagnosis of “anxiety disorder” and
observed that Ryan “clearly needs to be on her medication for anxiety.”
RYAN v. COMMISSIONER OF SOCIAL SECURITY 7037
Ryan continued to see Dr. Monigatti-Lake with regularity.
On January 16, 2001, Dr. Monigatti-Lake observed that Ryan
was calmer than normal, but continued to diagnose anxiety
disorder. On February 6, 2001, Dr. Monigatti-Lake observed
that Ryan was “slightly less anxious,” but again diagnosed
“anxiety disorder, slowly improving.” On her next visit to Dr.
Monigatti-Lake, on September 25, 2001, the diagnosis was
“chronic depression and anxiety,” with no notation that the
condition was improving. The last notation in Dr. Monigatti-
Lake’s records regarding Ryan’s mental health came on June
13, 2002, when Monigatti-Lake noted that Ryan was still suf-
fering from occasional panic attacks.
The final psychological examination in the record was con-
ducted on January 6, 2003 by Dr. Douglas R. Crisp, a doctor
with the Nevada County Behavioral Health Department. Dr.
Crisp observed that Ryan was “extremely anxious, hyperven-
tilating, [and] making a lot of grunting noises.” Dr. Crisp
recorded Ryan’s description of her daily affairs, noting that
she rarely left the small one-room shack where she lives
unless to buy food. Dr. Crisp noted that Ryan “talked nonstop
from the time she sat down until she left. . . . Affect was quite
constricted with some lability, though, due to the anxiety.”
Dr. Crisp’s ultimate diagnosis was “major depression with
agoraphobia [and] anxiety.”
B. Procedural history.
Ryan filed for Title II disability benefits on April 26, 2000.
After an initial hearing, Ryan was denied benefits in a March
21, 2002 decision. The Appeals Council remanded for further
vocational evidence and to allow Ryan to present additional
medical evidence. On January 16, 2003, a supplemental hear-
ing was held; Ryan testified, as did a vocational expert prof-
fered by the Agency.
At the hearing before the ALJ, Ryan testified that she had
only done laundry twice in the previous year. She cooked
7038 RYAN v. COMMISSIONER OF SOCIAL SECURITY
only one meal a day and cleaned her home no more than once
a month. Ryan testified that she had, essentially, no outside
activities beyond her daily subsistence living and watching
television. As to her mental condition, Ryan testified: “I have
a very difficult time in concentrating and making decisions,
or I don’t remember very well. I get very confused and I have
trouble understanding instructions. It’s almost like the dots
don’t quite connect.” Ryan testified that she was taking pre-
scribed medication for depression and anxiety, but that her
“anxiety is very hard to control. I’ve had many episodes of
panic attacks.” She testified that since the 2002 hearing, her
depression had gotten worse.
The only other witness to testify was the Agency’s voca-
tional expert, Susan C. Clavel. In response to hypotheticals
from the ALJ, Clavel testified that there were more than a
million jobs in the national economy that required the ability
to lift “40 pounds, no other physical restrictions, [and] only
occasional contact with employees and supervisors and no
public contact.” On cross-examination, however, Clavel testi-
fied that if a person were unable to maintain regular atten-
dance in the workplace due to anxiety, or unable to complete
a normal workday or workweek without interruption from a
psychiatric condition, that there were no jobs in the national
economy that would accommodate those restrictions.
On May 17, 2003 the ALJ issued his written decision.
Although he acknowledged that the “record supports a deter-
mination that the claimant has been limited as a result of
severe anxiety and depressive disorder since the alleged onset
date,” he nonetheless did not accord full weight to the testi-
mony of Dr. Randhawa or the most recent psychological
examination in the record, Dr. Crisp’s. Specifically, he
rejected Dr. Randhawa’s assessment that Ryan would have
difficulty maintaining a regular work schedule due to her anx-
iety and depression. The ALJ reasoned that Dr. Randhawa’s
evaluation was “based more upon the claimant’s subjective
complaints which are not fully supported in the record. The
RYAN v. COMMISSIONER OF SOCIAL SECURITY 7039
undersigned has reviewed in detail the claimant’s records
from her treating source, Dr. Monigatti-Lake, and while this
physician has noted ongoing symptoms of anxiety and depres-
sive symptoms, the claimant has not complained to the same
degree as reported to Dr. Randawa [sic].” The ALJ likewise
concluded that the treating records did not support Dr. Crisp’s
agoraphobia and major depression diagnoses. The ALJ thus
found that Ryan could perform work “with little or no anxi-
ety” so long as she had only occasional contact with peers and
no contact with the public, a finding he described as “consis-
tent with” the opinion of the non-examining state physicians
who reviewed Ryan’s records in June, 2000 and October,
2000. Ryan sought review in the district court, and on cross-
motions for summary judgment, the court affirmed. The dis-
trict court adopted the ALJ’s rationale for rejecting the testi-
mony of Dr. Randhawa. This appeal followed.
II. STANDARD OF REVIEW
We review the district court’s decision in a social security
case de novo. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
2005). The Social Security Administration’s disability deter-
mination should be upheld unless it is based on legal error or
is not supported by substantial evidence. Stout v. Comm’r Soc.
Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). “Substan-
tial evidence is more than a mere scintilla but less than a pre-
ponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1
(9th Cir. 2005) (internal quotation marks and citation omit-
ted). It is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Burch, 400 F.3d
at 679 (internal quotation marks and citation omitted).
“Where evidence is susceptible to more than one rational
interpretation,” the ALJ’s decision should be upheld. Id.“However, a reviewing court must consider the entire record
as a whole and may not affirm simply by isolating a ‘specific
quantum of supporting evidence.’ ” Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)).
7040 RYAN v. COMMISSIONER OF SOCIAL SECURITY
In conjunction with the relevant regulations, we have also
developed standards that guide our analysis of an ALJ’s
weighing of medical evidence. See 20 C.F.R. § 404.1527.
“To reject [the] uncontradicted opinion of a treating or exam-
ining doctor, an ALJ must state clear and convincing reasons
that are supported by substantial evidence.” Bayliss, 427 F.3d
at 1216 (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.
1995)). “If a treating or examining doctor’s opinion is contra-
dicted by another doctor’s opinion, an ALJ may only reject it
by providing specific and legitimate reasons that are sup-
ported by substantial evidence.” Id. Finally, the opinion of an
examining physician is entitled to greater weight than the
opinion of a nonexamining physician. Lester, 81 F.3d at 830.
III. DISCUSSION
Ryan argues that the ALJ erred by improperly rejecting the
opinion of Dr. Randhawa, an examining physician.2 Dr. Ran-
dhawa opined that Ryan would be unable to complete a regu-
lar work week due to her mental impairments. The ALJ’s
rejection of this testimony led to his determination at step five
of the sequential evaluation that Ryan was capable of per-
forming work other than her past relevant work.3 Substantial
2
We reject the Agency’s argument that this issue was not presented to
the district court. Both parties briefed the ALJ’s weighing of the medical
evidence in the district court. The district court’s summary judgment order
quoted, in full, the ALJ’s decision related to the medical evidence and
agreed with the ALJ’s summary of that evidence. The issue is properly
before us. Nelson v. Adams, USA, Inc., 529 U.S. 460, 469 (2000) (“[T]his
principle [of preserving issues] does not demand the incantation of partic-
ular words; rather, it requires that the lower court be fairly put on notice
as to the substance of the issue.”).
3
The guidelines direct an ALJ to review a disability claim using a five-
step sequential evaluation. 20 C.F.R. § 404.1520(a)(4)(i)-(v).
(i) At the first step, we consider your work activity, if any. If
you are doing substantial gainful activity, we will find that you
are not disabled. . . .
RYAN v. COMMISSIONER OF SOCIAL SECURITY 7041
evidence does not support the ALJ’s decision. The ALJ prof-
fered two reasons for rejecting Dr. Randhawa’s opinion: (1)
it was based too heavily on Ryan’s “subjective complaints”
and (2) it was not supported by the records of Ryan’s treating
physician Dr. Monigatti-Lake. Neither is a “clear and con-
vincing reason” supported by substantial evidence necessary
to reject the testimony of an examining doctor. Bayliss, 427
F.3d at 1216.
[1] First, Dr. Randhawa’s comprehensive psychiatric evalu-
ation was not based on Ryan’s subjective complaints. Dr.
Randhawa did, unsurprisingly, record in a section of his eval-
uation entitled “History of Present Illness,” the symptoms
relayed to him by Ryan, including Ryan’s inability to interact
with others or make decisions without experiencing signifi-
cant anxiety. But in the “Mental Status Examination” portion
of the exam he also recorded several of his own clinical
(ii) At the second step, we consider the medical severity of your
impairment(s). If you do not have a severe medically determin-
able physical or mental impairment that meets the duration
requirement in § 404.1509, or a combination of impairments that
is severe and meets the duration requirement, we will find that
you are not disabled. . . .
(iii) At the third step, we also consider the medical severity of
your impairment(s). If you have an impairment(s) that meets or
equals one of our listings in appendix 1 of this subpart and meets
the duration requirement, we will find that you are disabled. . . .
(iv) At the fourth step, we consider our assessment of your
residual functional capacity and your past relevant work. If you
can still do your past relevant work, we will find that you are not
disabled. . . .
(v) At the fifth and last step, we consider our assessment of
your residual functional capacity and your age, education, and
work experience to see if you can make an adjustment to other
work. If you can make an adjustment to other work, we will find
that you are not disabled. If you cannot make an adjustment to
other work, we will find that you are disabled. . . .
7042 RYAN v. COMMISSIONER OF SOCIAL SECURITY
observations of Ryan: “Behavior and mannerisms are some-
what odd. She has rapid speech. . . . She is easily agitated and
appears to be very angry.” Randhawa further observed Ryan’s
affect as “anxious, distraught, nervous, shaky, and edgy.” An
ALJ may reject an examining physician’s opinion if it is con-
tradicted by clinical evidence. Bayliss, 427 F.3d at 1216. But
an ALJ does not provide clear and convincing reasons for
rejecting an examining physician’s opinion by questioning the
credibility of the patient’s complaints where the doctor does
not discredit those complaints and supports his ultimate opin-
ion with his own observations. Edlund v. Massanari, 253 F.3d
1152, 1159 (9th Cir. 2001) (“In sum, the ALJ appears to have
relied on her doubt’s about [the claimant’s] overall credibility
to reject the entirety of [the examining psychologist’s] report,
including portions that [the psychologist] deemed to be reli-
able.”). There is nothing in the record to suggest that Dr.
Randhawa disbelieved Ryan’s description of her symptoms,
or that Dr. Randhawa relied on those descriptions more heav-
ily than his own clinical observations in reaching the conclu-
sion that Ryan was incapable of maintaining a regular work
schedule. Regennitter v. Comm’r Soc. Sec. Admin., 166 F.3d
1294, 1300 (9th Cir. 1999) (substantial evidence did not sup-
port ALJ’s finding that examining psychologists took claim-
ant’s “statements at face value” where psychologists’ reports
did not contain “any indication that [the claimant] was malin-
gering or deceptive”).
[2] Second, the purported inconsistency between Dr. Ran-
dhawa’s opinion and Dr. Monigatti-Lake’s records is also not
a clear and convincing reason supported by substantial evi-
dence sufficient to discredit Dr. Randhawa’s assessment. The
ALJ explained that while “[Dr. Monigatti-Lake] has noted
ongoing symptoms of anxiety and depressive symptoms, the
claimant has not complained to the same degree of symptoms
reported to Dr. Randawa [sic].” But Ryan consistently com-
plained of and Dr. Monigatti-Lake observed—even when
Ryan was seeing Dr. Monigatti-Lake for problems uncon-
nected to her anxiety and depression—symptoms consistent
RYAN v. COMMISSIONER OF SOCIAL SECURITY 7043
with those reported to and by Dr. Randhawa. In five of the six
visits with Dr. Monigatti-Lake that preceded her assessment
by Dr. Randhawa, she was diagnosed by Dr. Monigatti-Lake
with either “anxiety disorder,” “depression,” or both. During
those visits she complained of: “feelings of immobility, panic
attacks, crying spells” (December 14, 1999); an inability to
“concentrate very well” (December 21, 1999); was observed
as having “[r]apid speaking and hand movements” (March 1,
2000); described as “very agitated but coherent” (March 15,
2000); and “rapidly speaking” (April 4, 2000).4 Although
Ryan certainly described her symptoms in more detail during
her comprehensive psychological evaluation than she did in
regular visits to her family doctor, that does not render Dr.
Randhawa’s opinion inconsistent with Dr. Monigatti-Lake’s.5
Regennitter, 166 F.3d at 1299 (“Nothing in [one examining
doctor’s report] rules out [another examining doctor’s] more
extensive findings.”) (error under either “clear and convinc-
ing” or “specific and legitimate reasons” standards to reject an
examining psychologist’s report on the grounds that it contra-
dicted a less extensive report); Nguyen v. Chater, 100 F.3d
1462, 1465 (9th Cir. 1996) (“Where the purported existence
of an inconsistency is squarely contradicted by the record, it
may not serve as the basis for the rejection of an examining
physician’s conclusions.”). Nor are the references in Dr.
Monigatti-Lake’s notes that Ryan’s anxiety and depression
were “improving” sufficient to undermine the repeated diag-
nosis of those conditions, or Dr. Randhawa’s more detailed
report. Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir.
4
Ryan continued to report, and Dr. Monigatti-Lake continued to
observe, similar symptoms after her May 27, 2000 assessment with Dr.
Randhawa. Although in January and February of 2001 Dr. Monigatti-
Lake’s notes indicate that Ryan’s anxiety was improving, by September
25, 2001—the last time her notes diagnose a mental disorder—Dr.
Monigatti-Lake diagnosed “chronic depression and anxiety.”
5
Moreover, Dr. Randhawa explicitly took account of Dr. Monigatti-
Lake’s treatment history in making his diagnosis, noting that Ryan’s
extreme anxiety and depression continued, “despite the treatment she
receives from her primary care physician.”
7044 RYAN v. COMMISSIONER OF SOCIAL SECURITY
2001) (“[The treating physician’s] statements must be read in
context of the overall diagnostic picture he draws. That a per-
son who suffers from severe panic attacks, anxiety, and
depression makes some improvement does not mean that the
person’s impairments no longer seriously affect her ability to
function in a workplace.”).6
[3] It is for these reasons that the ALJ also erred by discred-
iting the most recent mental health assessment by Dr. Crisp,
who diagnosed Ryan with major depression and agoraphobia
in January, 2003. This diagnosis is not at odds with Dr.
Monigatti-Lake’s treating records that characterize Ryan as
suffering from chronic depression and anxiety in the visit
closest in time to Dr. Crisp’s diagnosis. Regennitter, 166 F.3d
at 1299; see also cf. Young v. Heckler, 803 F.2d 963, 968 (9th
Cir. 1986) (“Where a claimant’s condition is progressively
deteriorating, the most recent medical report is the most pro-
bative.”). And like Dr. Randhawa, Dr. Crisp’s diagnosis also
relied on his clinical observations of Ryan.
6
The dissent’s observation that the majority “turns our Social Security
jurisprudence on its head,” is premised on its belief that the treating physi-
cian’s clinical finding and the findings of the examining physicians and
their conclusions are at odds—i.e., that the treating physician does not find
Ryan disabled while the examining physicians do. Dissent at 7054. This
is simply not true.
We agree, of course, with the dissent’s observation that a treating physi-
cian’s opinion is generally accorded more weight than the opinion of an
examining or non-examining physician. Lester, 81 F.3d at 830. But that
principle does not empower an ALJ to manufacture a conflict between a
treating and examining physician, and then use the purported inconsis-
tency to discredit the examining physician’s opinion. As the dissent
acknowledges, Dr. Monigatti-Lake never explicitly opined on the ultimate
question of disability. Dissent at 7051. Nor is there anything in the record,
contrary to the dissent’s suggestion, to indicate that Dr. Monigatti-Lake
expressed an opinion that Ryan was capable of maintaining a regular work
schedule. Id. Dr. Monigatti-Lake did, however, repeatedly express an
opinion that Ryan was suffering from depression and anxiety, and on that
issue her opinion is consistent with the opinion of Dr. Randhawa. These
are Dr. Monigatti-Lake’s clinical notes. She was never asked or expected
in those notes to opine on disability.
RYAN v. COMMISSIONER OF SOCIAL SECURITY 7045
[4] Finally, it is not possible to cure the ALJ’s erroneous
rejection of Dr. Randhawa’s examining opinion with his find-
ing that this rejection was “consistent with” the opinions of
the two non-examining physicians, Drs. Harman and Harri-
son. The weight afforded a non-examining physician’s testi-
mony depends “on the degree to which they provide
supporting explanations for their opinions.” 20 C.F.R.
§ 404.1527(d)(3). The Mental Residual Functional Capacity
Assessment (“MRFCA”) form completed by Drs. Harman and
Harrison contains no supporting explanation whatsoever for
their opinion that “with continued [treatment]” Ryan could
complete a regular workweek. That was simply their bare
conclusion after checking a series of boxes on the MFCRA
form, a conclusion that does not outweigh the remaining evi-
dence in the record. Hollohan, 246 F.3d at 1207 (opinions
supported by explanation and treatment records cannot be out-
weighed by opinion of nonexamining physician “who merely
checked boxes without giving supporting explanations”).
[5] Although the ALJ did not purport to rely on this form
as his basis for rejecting Dr. Randhawa’s and Dr. Crisp’s
opinions, even if we were to assume that he did, and thus con-
sidered their examining opinions controverted, the ALJ still
failed to provide “specific and legitimate reasons” for reject-
ing those opinions. “The opinion of a nonexamining physician
cannot by itself constitute substantial evidence that justifies
the rejection of the opinion of either an examining physician
or a treating physician.” Lester, 81 F.3d at 831 (emphasis in
original). As explained above, Dr. Monigatti-Lake’s treating
records do not contradict the opinions of either Drs. Rand-
hawa or Crisp, whose opinions were in turn based as much on
their own clinical observations as they were on Ryan’s
description of her symptoms. Id. at 833 (“The nonexamining
medical advisor’s testimony does not by itself constitute sub-
stantial evidence that warrants a rejection of either the treating
doctor’s or the examining psychologist’s opinion.”).
[6] Because the Commissioner’s decision was not sup-
ported by substantial evidence, and because the record con-
7046 RYAN v. COMMISSIONER OF SOCIAL SECURITY
firms that, if Dr. Randhawa’s assessment were accepted, Ryan
could not make an adjustment to perform any other work, we
REVERSE and REMAND with instructions to remand to the
Agency for payment of benefits. Sprague v. Bowen, 812 F.2d
1226, 1231-32 (9th Cir. 1987).
REVERSED AND REMANDED.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent because, in my view, substantial evi-
dence supports the decision of the Administrative Law Judge
(ALJ). Unlike the majority, I am persuaded that the ALJ gave
proper weight to the opinions of all medical providers.
For purpose of this appeal, Social Security claimant Karen
Ryan (Ryan) began visiting her treating physician, Dr.
Monigatti-Lake regarding “her situation at work” on October
18, 1999. Ryan informed Dr. Monigatti-Lake that Ryan was
on administrative leave following a random drug test during
which she tested “positive for THC and apparently some
amphetamines.” Dr. Monigatti-Lake diagnosed Ryan as expe-
riencing a “stressful situation due to Ryan’s work difficul-
ties,” which occurred “a couple of months” before “her 5 yr.
retirement contract.”
Although Ryan expressed optimism about continuing with
her employment, it was not to be. Ryan was terminated, and
visited Dr. Monigatti-Lake on December 14, 1999, complain-
ing of feelings of immobility, panic attacks, [and] crying
spells.” Ryan reported that Effexor1 she was taking was not
1
Effexor (Venlafaxine) is used to treat depression, anxiety disorder, and
panic disorder. AMERICAN SOCIETY OF HEALTH-SYSTEM PHARMACISTS, INC.,
DRUG INFORMATION: VENLAFAXINE (2007), http://www.nlm.nih.gov/
medlineplus/druginfo/medmaster/a694020.html.
RYAN v. COMMISSIONER OF SOCIAL SECURITY 7047
helping. Dr. Monigatti-Lake observed that Ryan was “coher-
ent and oriented,” assessed that Ryan was suffering from anx-
iety disorder, increased the Effexor prescription and
prescribed Xanax.2
Ryan was seen a week later, at which time she reported that
she could not concentrate very well and “would still get some-
what emotional,” but was doing better. Dr. Monigatti-Lake
observed that Ryan was “calm” but “somewhat anxious.” Dr.
Monigatti-Lake’s diagnosis was “[a]nxiety disorder, improv-
ing” and “[d]epression, improving.” (Emphasis added). Dr.
Monigatti-Lake encouraged Ryan to seek counseling, and
gave her the names of some therapists.
Ryan next visited Dr. Monigatti-Lake two and one-half
months later, reporting that she had “bad days and good
days.” Ryan inquired about BuSpar,3 which Dr. Monigatti-
Lake thought was a good idea. Dr. Monigatti-Lake observed
that Ryan was coherent “but very agitated” and diagnosed her
with “[a]nxiety disorder.” Dr. Monigatti-Lake continued Ryan
on Effexor, started a prescription for BuSpar and instructed
Ryan that she could continue to take Xanax.
Two weeks later, Ryan was seen again. Ryan reported that
she was doing well on BuSpar and was taking Effexor regu-
larly. Dr. Monigatti-Lake observed that Ryan was coherent
but very agitated. Ryan was diagnosed as suffering from anxi-
ety disorder and again referred for counseling.
2
Xanax (Alprazolam) is used to treat anxiety disorder and panic attacks.
AMERICAN SOCIETY OF HEALTH-SYSTEM PHARMACISTS, INC., DRUG INFORMA-
TION: ALPRAZOLAM (2003), http://www.nlm.nih.gov/medlineplus/druginfo/
medmaster/a684001.html.
3
BuSpar (Buspirone) is used to treat anxiety disorders or in the short-
term treatment of symptoms of anxiety. AMERICAN SOCIETY OF HEALTH-
SYSTEM PHARMACISTS, INC., DRUG INFORMATION: BUSPIRONE (2003),
http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a688005 .html.
7048 RYAN v. COMMISSIONER OF SOCIAL SECURITY
Approximately three weeks later, Dr. Monigatti-Lake
assessed Ryan with anxiety disorder. Ryan reported that she
was continuing to take her medications, had not yet contacted
a counselor, was going out for two to three hours and was
working in the garden. Although Dr. Monigatti-Lake referred
Ryan to the Department of Social Services approximately one
month later, she did not opine that Ryan was disabled.
Approximately six weeks later, during a follow-up visit for
knee surgery, Dr. Monigatti-Lake noted that Ryan had “quite
a bit of anxiety” but was tolerating it “fairly well.” Dr.
Monigatti-Lake diagnosed “anxiety disorder, improving.”
(Emphasis added).
Over seven months later, Dr. Monigatti-Lake saw Ryan,
observing that Ryan was calmer than normal. Dr. Monigatti-
Lake continued to diagnose anxiety disorder. Three weeks
later, Dr. Monigatti-Lake noted that Ryan was “slightly less
anxious.” Dr. Monigatti-Lake diagnosed “anxiety disorder,
slowly improving.” (Emphasis added). Over seven months
later, Dr. Monigatti-Lake diagnosed Ryan with chronic
depression and anxiety. A visit four months later reflected no
indication of anxiety or depression.
Dr. Monigatti-Lake’s final notation approximately five
months later stated that Ryan was still suffering from “occa-
sional panic attacks.” At that time, Ryan reported that she was
“still trying to get disability benefits.”
In summary, from December 14, 1999, through June 13,
2002, Dr. Monigatti-Lake diagnosed Ryan with anxiety,
depression and panic attacks and noted continuous improve-
ment. Not once during that period did Dr. Monigatti-Lake
opine that Ryan was disabled, unable to work or agoraphobic.
In May, 2000, during the time she was being treated by Dr.
Monigatti-Lake, Ryan underwent a psychiatric evaluation by
Dr. Rajinder Randhawa. Dr. Randhawa concluded that Ryan
“does have the ability to perform and understand simple,
RYAN v. COMMISSIONER OF SOCIAL SECURITY 7049
repetitive, detailed and complex tasks which she is likely to
use [sic] interest in due to lack of motivation and initiative
and limited desires at present due to continuing depression
and extreme anxiety at times.” (Emphasis added). Dr. Ran-
dhawa’s assessment that Ryan would be unable “to maintain
regular attendance in the workplace” was limited to that par-
ticular moment in time. In fact, he predicted that “[i]f she gets
psychotherapy along with aggressive psychiatric treatment in
terms of anti-anxiety and an anti-depressant medication in
appropriate and adequate dosages[,] . . . [h]er condition is
likely to improve” and she could return to work.
Drs. Harman and Harrison, consulting physicians, made the
following functional assessment between June and October,
2000: “with continued [treatment] anticipate able to do com-
plex in low public [sic] with moderate impairments in ability
to sustain [concentration and attention] [persistence and pace]
and ability to complete regular work-week without interrup-
tion from her [psychological symptoms].” This assessment
was entirely consistent with Dr. Randhawa’s opinion that
although Ryan was presently “unable to maintain regular
attendance in the workplace[,] [h]er condition was likely to
improve.” (Emphasis added).
On August 4, 2000 (between the times of Dr. Randhawa’s
assessment and the completion of the Harman-Harrison
assessment), Ryan was seen for a lesion on her leg. During
that visit, she did not report any anxiety-related symptoms.
In December, 2000, Ryan was examined by Dr. Espino. Dr.
Espino noted a history of anxiety disorder, and completed a
functional capacity assessment. Although he listed several
restrictions with regard to physical activity, his only reference
to Ryan’s psychological impairments was to state that she
“clearly needs to be on her medication for anxiety.”
On December 24, 2002, Ryan was seen by Colleen McKin-
non, a licensed social worker with the Nevada County Behav-
7050 RYAN v. COMMISSIONER OF SOCIAL SECURITY
ioral Health Department, who noted a history of anxiety
disorder and major depression.
Ryan’s final examination was done by Dr. Crisp, a physi-
cian with the Nevada County Behavioral Health Department.
Ryan reported that she could relax at home but got anxious
when she went out. Taking Ryan’s report at face value, Dr.
Crisp diagnosed her with major depression with agoraphobia
and anxiety.
Ignoring the lack of a finding of disability by any of the
medical providers, the majority opinion discounts the substan-
tial evidence supporting the Administrative Law Judge’s
(ALJ) denial of benefits. The majority opinion rests on the
ALJ’s rejection of Dr. Randhawa’s observation that Ryan
“would have difficulty maintaining regular attendance in the
workplace due to anxiety and depression and due to interrup-
tions from her psychiatric conditions[,]” and on the ALJ’s dis-
counting of Dr. Crisp’s diagnosis of agoraphobia. See
Majority Opinion at pages 7040-45.
In reviewing this matter, it is important to clarify the stan-
dard of review. In Social Security cases, we employ a hierar-
chy of deference to medical opinions depending on the nature
of the services provided. We “distinguish among the opinions
of three types of physicians: (1) those who treat the claimant
(treating physicians); those who examine but do not treat the
claimant (examining physicians); and those who neither
examine nor treat the claimant (nonexamining physicians).”
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote
reference omitted). A treating physician’s opinion is entitled
to more weight than an examining physician’s opinion, and an
examining physician’s opinion is entitled to more weight than
a nonexamining physician’s opinion. See id. As applied to this
case, Dr. Monigatti-Lake’s opinion was entitled to the most
weight due to her status as treating physician. Acceptance of
Dr. Monigatti-Lake’s opinion over that of Drs. Randhawa and
Crisp, examining physicians, would be entirely consistent
RYAN v. COMMISSIONER OF SOCIAL SECURITY 7051
with our governing precedent. See Thomas v. Barnhart, 278
F.3d 947, 957 (9th Cir. 2002) (noting the deference given to
a treating physician’s opinion). Indeed, crediting the opinions
of Drs. Randhawa and Crisp over that of Dr. Monigatti-Lake
absent “specific and legitimate reasons supported by substan-
tial evidence in the record” would directly contravene our pre-
cedent. Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th
Cir. 2007) (citations omitted). Yet that is precisely what a
majority of the panel concludes that the ALJ should have
done and does itself. I respectfully disagree because the
record does not support crediting the opinion of those examin-
ing doctors over the treating doctor.
An examination of the record reveals that Dr. Monigatti-
Lake, Ryan’s treating physician, never opined that Ryan was
unable to work or would “have difficulty maintaining regular
attendance in the workplace” as a result of her improving anx-
iety disorder and treatable depression. In fact, Dr. Monigatti-
Lake’s final notation regarding Ryan reflected only “occa-
sional panic attacks” and an observation that Ryan was “still
trying to get disability benefits.” Although this notation
reflects Dr. Monigatti-Lake’s awareness of the possibility of
a disability diagnosis, she did not in any way indicate that
Ryan’s conditions were disabling, although she had treated
those conditions for a period in excess of two and one-half
years.
A comparison of the medical records of the treating physi-
cians from December 14, 1999, through June 13, 2002, with
the records of Dr. Randhawa, a one-time examining physi-
cian, reveals a conflict to the extent of Dr. Randhawa’s opin-
ion that Ryan would “have difficulty maintaining regular
attendance in the workplace.” Indeed, Dr. Monigatti-Lake’s
notes indicate the opposite expectation. Dr. Monigatti-Lake
expressly noted on several visits that Ryan’s condition was
improving, with her final notation referencing only “occa-
sional panic attacks.”
7052 RYAN v. COMMISSIONER OF SOCIAL SECURITY
Given the conflict in the record between the treating physi-
cian’s observation of a non-disabling, improving condition
and the examining physician’s opinion that Ryan’s condition
disabled her from regular attendance at work, it fell to the
ALJ to resolve the conflict. See Edlund v. Massanari, 253
F.3d 1152, 1156 (9th Cir. 2001). Resolving the conflict in
favor of the treating physician’s observations was eminently
proper. Indeed, “[w]here the evidence can reasonably support
either affirming or reversing the decision, [this Court] may
not substitute [its] judgment for that of the Commissioner.”
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (citation
omitted). Yet that is precisely what the majority does by
selectively crediting the opinion of examining doctors over
that of a long-term treating doctor. The majority opinion
states that nothing in the record indicates that Dr. Monigatti-
Lake expressed an opinion that Ryan was capable of main-
taining a regular work schedule. See Majority Opinion, p.
7044 n.6. However, Dr. Monigatti-Lake’s notations of contin-
uing improvement are the very antitheses of a disability. See,
e.g. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001)
(recognizing the inherent conflict between an observation of
improvement and a finding of disability); see also Johnson v.
Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (same).
The majority opinion takes issue with the ALJ’s decision to
give less weight to Dr. Randhawa’s assessment because it was
“based more upon the claimant’s subjective complaints which
are not fully supported in the record.” However, this conclu-
sion by the ALJ is amply supported by the record. Dr. Ran-
dhawa’s conclusion that Ryan could not maintain regular
attendance was explicitly predicated on the following state-
ments: “[Ryan] said it is very difficult for her to even grow
up [sic] an application as she starts having severe palpitations.
Cold sweat and extreme anxiety and now she feels like she is
going to pass out.” (Emphases added). Dr. Randhawa did not
connect his conclusion to any objective medical findings or
observations. Rather, as the ALJ correctly noted, these quint-
essentially subjective complaints are not a sufficient basis of
RYAN v. COMMISSIONER OF SOCIAL SECURITY 7053
support for a disability determination. One need look no fur-
ther than the case cited by the majority, Bayliss v. Barnhart,
427 F.3d 1211 (9th Cir. 2005) for guidance. In Bayliss we
specifically ruled that substantial evidence supports the ALJ’s
decision not to rely on a medical opinion based on subjective
complaints rather than clinical evidence. See id. at 1217. Like
the doctor in Bayliss, Dr. Randhawa did not link his opinion
to any clinical findings. Rather, he referenced only Ryan’s
subjective complaints. In such a circumstance, the ALJ’s deci-
sion to give less weight to Dr. Randhawa’s medical opinion
is in accord with our precedent. See id.The majority opinion also criticizes the ALJ’s reliance on
Dr. Monigatti-Lake’s treatment records. In the majority’s
view, a diagnosis of “anxiety disorder” and/or “depression”
by Dr. Monigatti-Lake obviates any conflict between Dr.
Randhawa’s opinion that Ryan would be unable to maintain
regular attendance in the workplace and Dr. Monigatti-Lake’s
observations of improving functional capacity. However, a
diagnosis of anxiety disorder or depression is a far cry from
a finding of disability. In fact, millions of people work every
day while being treated for anxiety disorder and/or depres-
sion. See, e.g., Lynn Elinson, Patricia Houck, Steven C. Mar-
cus and Harold Alan Pincus, Depression and the Ability to
Work, PSYCHIATRIC SERV. 55, 29-34 (2004), available at http://
www.ps.psychiatryonline.org/cgi/content/full/55/1/29 (“De-
pression treatment has . . . been shown to be cost-effective, to
keep depressed persons employed, and to improve the produc-
tivity of depressed persons who are already working.”) (foot-
note references omitted).
More to the point, the reason a treating physician’s opinion
is weighed more heavily is because the treating physician has
a sustained relationship with the patient and is more likely to
have a complete and accurate grasp of the patient’s medical
condition. See Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.
1996); see also 20 C.F.R. § 404.1527(d)(2). Yet the majority
discounts the long-term medical record developed by the
7054 RYAN v. COMMISSIONER OF SOCIAL SECURITY
treating physician Dr. Monigatti-Lake in favor of a conflicting
medical opinion predicated on a single visit. This conclusion
turns our Social Security jurisprudence on its head. Conflict
arose when the examining physician, Dr. Randhawa, used
Ryan’s subjective complaints to opine that she was unable to
maintain regular attendance at work even though the treating
physician consistently noted that Ryan was coping fairly well
with her conditions. It was entirely within the ALJ’s purview
to resolve the conflict. See Edlund, 253 F.3d at 1156.
In an effort to bolster its unjustifiable reliance on the one-
time examination of Dr. Crisp to support a diagnosis of agora-
phobia, the majority opinion cites Regennitter v. Commis-
sioner, 166 F.3d 1294, 1299 (9th Cir. 1999). However, that
case is readily distinguishable. In Regennitter, the later physi-
cian added diagnoses of post-traumatic stress disorder and
nightmare disorder to the related diagnoses of major depres-
sion and panic disorder made by both doctors. See id. In this
case, both Drs. Monigatti-Lake and Randhawa diagnosed anx-
iety disorder and depression. Dr. Crisp was the only medical
provider in the entire record who diagnosed agoraphobia.
Contrary to the majority’s assertion, this diagnosis was not
only at odds with that of the treating physician, it was at odds
with the entire medical record, providing ample support for
the ALJ’s decision to give it less weight. See Thomas, 278
F.3d at 957. In addition and as the ALJ noted, the diagnosis
was predicated on Ryan’s statements that she “was extremely
anxious . . . when she leaves home” and that “she has trouble
even going to the grocery store.” As we have repeatedly held,
an ALJ may discount a medical opinion that relies on subjec-
tive statements rather than clinical findings. See Tonapetyan
v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
The majority’s citation to Young v. Heckler, 803 F.2d 963,
968 (9th Cir. 1986) is inapposite. Reliance on Young would
be appropriate if the evidence in the record reflected that
Ryan’s condition was “progressively deteriorating.” Id. How-
ever, the medical record in this case is to the contrary. The
RYAN v. COMMISSIONER OF SOCIAL SECURITY 7055
only physician who had a progressive perspective of Ryan’s
condition was Dr. Monigatti-Lake, her treating physician.
And Dr. Monigatti-Lake consistently noted that Ryan’s condi-
tion was improving, rather than deteriorating.
In sum, because Drs. Randhawa’s and Crisp’s opinions
were based on Ryan’s subjective complaints and conflicted
with that of the treating physician, substantial evidence sup-
ported the respective weights given to those opinions by the
ALJ when he determined that Ryan was not entitled to Social
Security benefits. Unlike the majority, I would adhere to our
precedent, afford the treating physician’s opinion the greater
weight to which it is due, and affirm the district court.