Bayliss v. Commissioner ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANA M. BAYLISS, 
Plaintiff-Appellant,
No. 04-35634
v.
JO ANNE B. BARNHART,  D.C. No.
CV-03-01431-AA
COMMISSIONER, SOCIAL SECURITY
OPINION
ADMINISTRATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted
September 15, 2005—Portland, Oregon
Filed November 2, 2005
Before: Raymond C. Fisher, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
15047
BAYLISS v. COMMISSIONER, SSA 15049
COUNSEL
David B. Lowry, Portland, Oregon, for the plaintiff-appellant.
Joanne E. Dantonio, Social Security Administration, Office of
the General Counsel, Seattle, Washington, for the defendant-
appellee.
15050 BAYLISS v. COMMISSIONER, SSA
OPINION
GOULD, Circuit Judge:
Jana Bayliss appeals the district court’s affirmance of the
Social Security Commissioner’s denial of her application for
disability insurance benefits and supplemental security
income benefits pursuant to Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401 et seq., 1381 et seq. The
Administrative Law Judge (“ALJ”) found that Bayliss
retained the capacity to perform a wide range of light work,
and thus that she was not disabled within the meaning of the
Social Security Act. The Appeals Council declined review,
and the district court affirmed. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.1
I
[1] Bayliss asserts that her due process rights were violated.
She contends that the ALJ was preoccupied with whether her
attorney properly disclosed a doctor’s report, and thus that the
ALJ did not impartially assess the evidence. To succeed in
this claim, Bayliss must show that “the ALJ’s behavior, in the
context of the whole case, was ‘so extreme as to display clear
inability to render fair judgment.’ ” Rollins v. Massanari, 261
F.3d 853, 858 (9th Cir. 2001) (quoting Liteky v. United States,
510 U.S. 540, 551 (1994)). We must begin with a presump-
tion that the ALJ was unbiased. See Schweiker v. McClure,
456 U.S. 188, 195 (1982) (“We must start . . . from the pre-
sumption that the hearing officers . . . are unbiased.”). Bayliss
1
Our review is de novo. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.
1999). We may reverse the ALJ’s decision to deny benefits only if it is
based upon legal error or is not supported by substantial evidence. Tidwell
v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). “Substantial evidence is more
than a mere scintilla but less than a preponderance.” Id. If the record
would support more than one rational interpretation, we defer to the ALJ’s
decision. See Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595,
599 (9th Cir. 1999).
BAYLISS v. COMMISSIONER, SSA 15051
can rebut this presumption by showing a “conflict of interest
or some other specific reason for disqualification.” Id.The ALJ prepared a detailed, forty-five-page opinion in
which he carefully examined Bayliss’s medical history and
addressed the opinion of each reviewing doctor. In the opin-
ion, the ALJ posited that Bayliss’s counsel had withheld med-
ical records from experts in an effort to garner records and
testimony that would support Bayliss’s claim.2 For example,
the ALJ noted: “Given that counsel withheld all relevant med-
ical records from Dr. Manfield, it is obvious that he had no
means of independently verifying the claimant’s grossly exag-
gerated subjective descriptions of her status since the motor
vehicle accident.” In finding that questionnaire responses pro-
vided by Ms. Baptiste, a social worker who conducted mental
health counseling for Bayliss, were not supported by the
record, the ALJ wrote: “It is reasonable to presume that coun-
sel did not provide relevant treating source medical records
for Ms. Baptiste to review . . . .”
The ALJ also took exception to the self-assessment forms
submitted by Bayliss’s counsel. The ALJ first noted that, in
general, such assessments provide little assistance in deter-
mining whether claimants are disabled because claimants lack
the requisite medical expertise. He then stated: “Counsel’s
submission of ‘medical source’ self-assessments completed
by this particular claimant, however, amounts to a mockery of
the goals of evidentiary integrity and due process that are the
foundation of the . . . disability hearing system.”
[2] The ALJ had previously conducted an extensive hear-
ing. In his opinion resolving the case, the ALJ determined,
2
In his opinion, the ALJ also stated repeatedly that he found Bayliss’s
allegations of various physical and mental limitations not credible.
Bayliss, however, does not assert that these statements manifest bias
against her; she argues only that the ALJ’s statements regarding her coun-
sel show bias.
15052 BAYLISS v. COMMISSIONER, SSA
based on substantial evidence, that Bayliss was not credible.
The ALJ found that objective medical evidence contradicted
several of the doctors’ reports submitted in support of
Bayliss’s claim. He documented his findings and opinions in
a detailed and reasoned opinion. In this context, the ALJ’s
statements attributing misconduct to Bayliss’s counsel are not
so extreme as to show that the ALJ could not render a fair
judgment. Compare Rollins, 261 F.3d at 858 (holding that an
ALJ’s occasional remark expressing sarcasm or impatience
did not amount to bias), with Ventura v. Shalala, 55 F.3d 900,
902-04 (3d Cir. 1995) (holding that a claimant’s due process
rights were violated when the ALJ expressed hostility toward
the claimant’s lay representative’s use of leading questions,
interrupted the claimant’s testimony to question the claimant
in an intimidating manner on an irrelevant issue, and inter-
fered with the admission of evidence as to physical causes of
the claimant’s pain).
Applying the standard from the Supreme Court’s Liteky
decision, our sister circuits, like our circuit in Rollins, have
rejected allegations that due process was violated when iso-
lated parts of an ALJ’s conduct were challenged but the
record as a whole showed fundamental fairness for the liti-
gants. See, e.g., Brown v. Apfel, 192 F.3d 492, 500 (5th Cir.
1999) (holding that the ALJ’s statement that the claimant’s
treating doctor “was attempting to help the claimant get bene-
fits because of his relationship with her,” and the ALJ’s
refusal to rely on the doctor’s medical opinion, did not estab-
lish bias because the ALJ’s conclusion denying disability ben-
efits was supported by substantial evidence); Puckett v.
Chater, 100 F.3d 730, 734 (10th Cir. 1996) (holding that the
ALJ’s refusal to provide the claimant’s counsel with records
and a doctor’s notes before counsel cross-examined the doctor
did not show bias); Ginsberg v. Richardson, 436 F.2d 1146,
1151 (3d Cir. 1971) (“We have reviewed the entire record in
this case, and while the conduct of the hearing examiner is
subject to some criticism, we cannot say that it was so unfair
as to constitute a denial of due process.”).
BAYLISS v. COMMISSIONER, SSA 15053
[3] In light of the ALJ’s detailed and reasoned written
grounds for ruling against Bayliss, we conclude that the state-
ments in the ALJ’s opinion in which the ALJ expressed dis-
pleasure with the conduct of Bayliss’s counsel are not
sufficient to establish bias. See Rollins, 261 F.3d at 858(“ ‘[E]xpressions of impatience, dissatisfaction, annoyance,
and even anger, that are within the bounds of what imperfect
men and women . . . sometimes display’ do not establish
bias.”) (quoting Liteky, 510 U.S. at 555-56). We affirm the
district court’s determination that Bayliss’s due process rights
were not violated.
II
[4] Bayliss next argues that the ALJ improperly rejected the
opinions of several doctors. To reject an uncontradicted opin-
ion of a treating or examining doctor, an ALJ must state clear
and convincing reasons that are supported by substantial evi-
dence. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).
If a treating or examining doctor’s opinion is contradicted by
another doctor’s opinion, an ALJ may only reject it by provid-
ing specific and legitimate reasons that are supported by sub-
stantial evidence. Id. Also, when evaluating conflicting
medical opinions, an ALJ need not accept the opinion of a
doctor if that opinion is brief, conclusory, and inadequately
supported by clinical findings. Tonapetyan v. Halter, 242 F.3d
1144, 1149 (9th Cir. 2001).
[5] The ALJ rejected Dr. Tobin’s statement that Bayliss
could stand or walk for only fifteen minutes at a time. Dr.
Tobin took clinical notes on the same day that he made this
statement. These notes, and the doctor’s other recorded obser-
vations and opinions regarding Bayliss’s capabilities, contra-
dict Dr. Tobin’s statement assessing Bayliss’s ability to stand
or walk. Such a discrepancy is a clear and convincing reason
for not relying on the doctor’s opinion regarding Bayliss’s
limited ability to stand and walk. See Weetman v. Sullivan,
877 F.2d 20, 23 (9th Cir. 1989). The ALJ’s rejection of Dr.
15054 BAYLISS v. COMMISSIONER, SSA
Tobin’s opinion is supported by substantial evidence and was
based on a permissible determination within the ALJ’s prov-
ince.
Substantial evidence also supports the ALJ’s treatment of
Dr. Sweet’s determination that Bayliss has difficulty paying
attention, concentrating, and organizing herself without get-
ting overwhelmed. The ALJ agreed with Dr. Sweet’s conclu-
sions, but the ALJ determined that the conditions Dr. Sweet
identified would not affect Bayliss’s ability to work. Bayliss
has faced these limitations since at least 1995, before her
1998 accident, and they have not prevented her from complet-
ing high school, obtaining a college degree, finishing a Certi-
fied Nurses’ Aide training program, and participating in
military training.
Bayliss also contends that the ALJ improperly rejected Dr.
Manfield’s psychological assessment and Dr. Freeman’s opin-
ion that Bayliss suffers from bipolar disorder. Dr. Manfield
concluded that Bayliss suffered from several mental conditions,3
but he based this assessment on Bayliss’s complaints and
information submitted by her family, her friends, and a former
counselor. He did not review objective medical data or reports
from treating physicians or counselors. Similarly, Dr. Free-
man’s opinion was not supported by clinical evidence and
was based on Bayliss’s subjective complaints. Substantial evi-
dence supports the ALJ’s decision not to rely on the opinion
of either doctor. See Thomas v. Barnhart, 278 F.3d 947, 957
(9th Cir. 2002) (“The ALJ need not accept the opinion of any
physician, including a treating physician, if that opinion is
3
These conditions include major depressive disorder, post-traumatic
stress disorder, attention deficit hyperactivity disorder, cognitive disorder,
personality disorder, intermittent insomnia, and a global assessment of
functioning (“GAF”) of forty. A GAF of forty indicates some impairment
in reality testing or communication, or major impairment in several areas
such as work or school, family relations, judgment, thinking, or mood. See
Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disor-
ders 34 (4th TR. ed. 2000).
BAYLISS v. COMMISSIONER, SSA 15055
brief, conclusory, and inadequately supported by clinical find-
ings.”).
Bayliss further asserts that the ALJ should have recontacted
Drs. Tobin, Sweet, and Manfield before rejecting parts of
their opinions. “The claimant bears the burden of proving that
she is disabled.” Meanel v. Apfel, 172 F.3d 1111, 1113 (9th
Cir. 1999). An ALJ is required to recontact a doctor only if
the doctor’s report is ambiguous or insufficient for the ALJ to
make a disability determination. 20 C.F.R. §§ 404.1512(e),
416.912(e); Thomas, 278 F.3d at 958. The ALJ, with support
in the record, found the evidence adequate to make a determi-
nation regarding Bayliss’s disability. Accordingly, the ALJ
did not have a duty to recontact the doctors.
III
Bayliss next contends that the ALJ’s determination of her
Residual Functional Capacity (“RFC”) was error because the
ALJ did not perform a function-by-function analysis pursuant
to Social Security Ruling (“SSR”) 96-8p. She further main-
tains that the ALJ’s failure explicitly to address the drowsi-
ness side-effect of her medication and her reaction to stress
was error.
[6] We will affirm the ALJ’s determination of Bayliss’s
RFC if the ALJ applied the proper legal standard and his deci-
sion is supported by substantial evidence. Morgan, 169 F.3d
at 599. In making his RFC determination, the ALJ took into
account those limitations for which there was record support
that did not depend on Bayliss’s subjective complaints. Pre-
paring a function-by-function analysis for medical conditions
or impairments that the ALJ found neither credible nor sup-
ported by the record is unnecessary. See SSR 96-8p.
15056 BAYLISS v. COMMISSIONER, SSA
IV
[7] Bayliss argues that the ALJ’s reliance on the Vocational
Expert’s (“VE’s”) testimony was error because the hypotheti-
cal presented to the VE did not include all of her limitations.
The hypothetical that the ALJ posed to the VE contained all
of the limitations that the ALJ found credible and supported
by substantial evidence in the record. The ALJ’s reliance on
testimony the VE gave in response to the hypothetical there-
fore was proper. See Magallanes v. Bowen, 881 F.2d 747,
756-57 (9th Cir. 1989) (holding that it is proper for an ALJ
to limit a hypothetical to restrictions supported by substantial
evidence in the record). Further, the ALJ’s reliance on the
VE’s testimony regarding the number of relevant jobs in the
national economy was warranted.4 An ALJ may take adminis-
trative notice of any reliable job information, including infor-
mation provided by a VE. Johnson v. Shalala, 60 F.3d 1428,
1435 (9th Cir. 1995). A VE’s recognized expertise provides
the necessary foundation for his or her testimony. Thus, no
additional foundation is required.
4
Bayliss relies on the requirements for the admissibility of expert testi-
mony under Federal Rule of Evidence 702, established in Daubert v. Mer-
rell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See id. (establishing
a gatekeeping function to screen expert scientific testimony for relevance
and reliability); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137(1999) (applying the Daubert rule to all expert testimony, not merely to
scientific testimony). The Federal Rules of Evidence do not apply to the
admission of evidence in Social Security administrative proceedings. See
42 U.S.C. § 405(b)(1); 20 C.F.R. §§ 404.950(c), 416.1450(c) (“The
administrative law judge may receive evidence at the hearing even though
the evidence would not be admissible in court under the rules of evidence
used by the court.”); Richardson v. Perales, 402 U.S. 389, 400 (1971)
(“[S]trict rules of evidence, applicable in the courtroom, are not to operate
at social security hearings so as to bar the admission of evidence otherwise
pertinent . . . .”); Banks v. Schweiker, 654 F.2d 637, 640 (9th Cir. 1981).
It is clear that the Daubert decision rests on an interpretation of Federal
Rule of Evidence 702. See Daubert, 509 U.S. at 589-92. The requirements
established in Federal Rule of Evidence 702, Daubert, and Kumho do not
govern the admissibility of evidence before the ALJ in the administrative
proceeding in this Social Security case.
BAYLISS v. COMMISSIONER, SSA 15057
V
[8] Finally, Bayliss contends that the ALJ improperly
rejected aspects of testimony provided by her friends and
family members. An ALJ need only give germane reasons for
discrediting the testimony of lay witnesses. Lewis v. Apfel,
236 F.3d 503, 511 (9th Cir. 2001). Inconsistency with medical
evidence is one such reason. Id. The ALJ accepted the testi-
mony of Bayliss’s family and friends that was consistent with
the record of Bayliss’s activities and the objective evidence in
the record; he rejected portions of their testimony that did not
meet this standard. The ALJ’s rejection of certain testimony
is supported by substantial evidence and was not error.
AFFIRMED.