Robert Sherman v. Carolyn W. Colvin , 582 F. App'x 745 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 09 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROBERT D. SHERMAN, No. 13-35042
Plaintiff - Appellant, D.C. No. 1:12-cv-00035-CSO
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Carolyn S. Ostby, Magistrate Judge, Presiding
Argued and Submitted May 14, 2014
Seattle, Washington
Before: O’SCANNLAIN, KLEINFELD, and BERZON, Circuit Judges.
Robert Sherman appeals the denial of his application for supplemental
security income under the Social Security Act. We “reverse only if the ALJ’s
decision was not supported by substantial evidence in the record as a whole or if
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the ALJ applied the wrong legal standard.” Molina v. Astrue, 674 F.3d 1104, 1110
(9th Cir. 2012). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.1
Substantial evidence supports the ALJ’s adverse credibility determination.
The ALJ offered “specific, clear and convincing reasons” for rejecting Sherman’s
testimony about his limitations and pain to the extent that his testimony conflicted
with the residual functional capacity assessment. Molina, 674 F.3d at 1112(internal quotation marks omitted). First, the ALJ noted Sherman’s sporadic work
history before he filed for disability and the fact that his job rehabilitation services
case worker closed his file for failure to cooperate and participate in job searching.
See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
Second, the ALJ relied on physicians’ observations that Sherman exhibited
“self-limiting behaviors” and had “poor credibility.” Dr. Hurd, an examining
physician, reported that Sherman “refused to do many of the exam maneuvers” and
“used less than actual effort.” See id. (holding that a claimant’s failure “to give
maximum or consistent effort during two physical capacity evaluations” supported
1
We order that the excerpts of record, filed under seal, be unsealed.
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the ALJ’s adverse credibility finding). He also observed Sherman perform
multiple tasks that were inconsistent with his alleged limitations. See Carmickle v.
Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction
with the medical record is a sufficient basis for rejecting the claimant’s subjective
testimony.”). Dr. Hurd’s findings were consistent with other physicians’
observations. Dr. Goodell, a treating physician, said that Sherman’s “inability to
cooperate/participate” and “unwillingness to participate in a physical exam”
prevented her from testing his physical abilities. Sherman refused to bear weight
during the exam. When Dr. Goodell left the room, however, he was able to climb
up on the exam table to take a nap. Similarly, Dr. Mozer, an examining
psychologist, described Sherman as “evasive” and commented on his failure to
give a “valid effort.”
Third, the ALJ reasonably concluded that Sherman’s medical conditions did
not limit his daily activities to the extent that he claimed. No doctor placed any
restrictions on Sherman’s activities. See Burch v. Barnhart, 400 F.3d 676, 681 (9th
Cir. 2005) (“Although lack of medical evidence cannot form the sole basis for
discounting pain testimony, it is a factor that the ALJ can consider in his credibility
analysis.”). Further, the ALJ found that Sherman’s daily marijuana use contributed
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to his lack of activity. Dr. Mozer opined that Sherman had “very marginal
motivation” and is “basically doing what he wants to do (sit around and smoke
pot).” The ALJ’s conclusion that marijuana use can impact daily activities, social
functioning, and concentration is reasonable, so we must accept it. See
Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).
To the extent that the ALJ might have erred in relying on Sherman’s failure
to get back surgery when he did not have money or insurance, see Orn v. Astrue,
495 F.3d 625, 638 (9th Cir. 2007), any error was harmless in light of the ALJ’s
other findings that provide substantial evidence for the adverse credibility
determination. See Carmickle, 533 F.3d at 1162.
Sherman argues that the ALJ rejected the opinions of his treating physicians.
We disagree. The ALJ considered the opinions of Dr. Verby, Dr. Quenemon, Dr.
Goodell, and Dr. Draper, and their opinions are consistent with the ALJ’s finding
that Sherman has severe degenerative disc and joint disease in his back and
osteoarthritis in his hands. The ALJ’s written decision was not required to discuss
every piece of evidence. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.
2003). Sherman challenges the residual functional capacity assessment, but he has
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not shown how it is inconsistent with any physician’s opinion. No physician
placed any restrictions on Sherman’s activities or diagnosed any physical
impairments beyond those found by the ALJ.
We also reject Sherman’s claim that the ALJ ignored the opinions of mental
health care providers that he was depressed. After considering the evidence that
Sherman claims was ignored, the ALJ ruled that Sherman’s alleged depression is
“either not medically determinable, due to the lack of a formal diagnosis, or is
nonsevere.” The ALJ’s determination is supported by substantial evidence.
Sherman was never diagnosed with depression. Dr. Mozer said that depression
was “questionable” and he ruled it out of consideration by finding that if Sherman
does have depression it is “mild,” “certainly not limiting,” and “a natural
consequence of an empty lifestyle.” Likewise, Dr. Martin, a non-examining
physician, testified that there was not much support in the record for depressive
disorder. Sherman’s depression was not assessed by any other acceptable medical
source. See 20 C.F.R. § 404.1513(a). The ALJ gave a “germane” reason, Molina,
674 F.3d at 1111, for rejecting Sherman’s other source evidence, noting that the
therapist who assessed his global functioning assessment score did not diagnose
5
depression. For the same reason, the ALJ properly discounted Sherman’s answers
to mental health questionnaires.
Because the ALJ did not completely rule out the possibility that Sherman
has mild depression, we assume without deciding that he was required to consider
it in assessing Sherman’s residual functional capacity. “The ALJ is required to
consider all of the limitations imposed by the claimant’s impairments, even those
that are not severe.” Carmickle, 533 F.3d at 1164. In this case, however, Sherman
has not shown that his alleged depression resulted in any functional limitations that
the ALJ failed to consider. See Burch, 400 F.3d at 684.
Finally, we reject Sherman’s claim that the ALJ ignored the findings of Dr.
McFarland, a state agency reviewing psychologist, and Dr. Mozer that he has
difficulties maintaining concentration, persistence, and pace as a result of his anti-
personality disorder. Sherman is correct that the residual functional capacity
assessment does not specifically mention limitations in concentration, persistence,
and pace. This omission, however, does not constitute reversible error. We held in
Stubbs–Danielson v. Astrue, that a residual functional capacity assessment
“adequately captures” a claimant’s limitations in concentration, persistence, and
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pace as long as the assessment is “consistent with restrictions identified in the
medical testimony,” 539 F.3d 1169, 1174 (9th Cir. 2008).
Here, the ALJ, like the one in Stubbs–Danielson, adopted the only “concrete
restrictions” identified by Sherman’s physicians. See id. Both Dr. McFarland and
Dr. Mozer concluded that Sherman is capable of unskilled work, despite his
functional limitations. Dr. McFarland said that Sherman “would do best at work
that does not require dealing with the public or working closely with others” but he
is able to “understand, carry out and remember simple instructions,” and “respond
appropriately to supervision, coworkers and work situations.” The ALJ gave Dr.
McFarland’s opinion “significant weight” and noted that the residual functional
capacity assessment is consistent with her findings. We agree. The assessment
includes routine unskilled jobs with occasional to frequent new learning and
excludes jobs that require constant dealing with the public, large groups of people,
distracting situations, constant critical supervision, high constant focus
requirements, and high constant stress requirements. To the extent that the ALJ
might have erred by also including semi-skilled jobs, this error was harmless
because the ALJ found that Sherman is capable of performing unskilled jobs that
exist in significant numbers in the national economy. See Molina, 674 F.3d at
7
1115 (“[A]n ALJ’s error is harmless where it is inconsequential to the ultimate
nondisability determination.” (internal quotation marks omitted)).
The ALJ gave the vocational expert a hypothetical based on the residual
functional capacity assessment. For the reasons discussed above, we conclude that
the hypothetical properly included all of Sherman’s limitations that are supported
by substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217–18 (9th Cir.
2005).
AFFIRMED.
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FILED
Sherman v. Colvin, No. 13-35042 JUL 09 2014
BERZON, Circuit Judge, Dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Substantial evidence does not support the ALJ’s finding that claimant Robert
Sherman lacks credibility. Accordingly, I dissent.
I.
1. Contrary to the ALJ’s assessment, Sherman’s sporadic work history
before his 2009 filing date is entirely consistent with his testimony. Sherman’s
back injury occurred in 1992. Although he attempted to keep working after the
injury, his back problems worsened in 1998, when he re-injured himself in a car
accident. When Sherman protectively filed in 2009, he alleged a disability onset
date of 1998. He amended that date because he did not have the medical records to
prove his case that far back. But treatment notes from 2001 and 2004 do indicate
that Sherman was in serious pain from back problems during this time, and that
when he did work, he “exacerbated his injury in the low[er] back.” Thus,
Sherman’s sporadic work history before his filing date does not show that factors
other than his disability prevented him from working, and is in fact consistent with
his account of his back injury.
2. The second reason the panel gives in support of the ALJ’s credibility
determination is Sherman’s lack of cooperation with state vocational rehabilitation
services. The record does not support such a finding.
The Montana Vocational Rehabilitation Program (“Montana Vocational”)
reports as a whole confirms Sherman’s alleged limitations and illustrates that it was
his disability that prevented him from finding work. Those records show that
Sherman thought he could do short-term, but not long-term driving, as long as
lifting was not required. The vocational school “only had . . . long term over the
road stuff,” and short-run jobs not involving lifting were not available for
inexperienced drivers.
Sherman did receive his Commercial Driver’s License, and tried some
driving jobs, but they turned out to require lifting as much as 70 pounds, which he
could not handle. At a meeting with Sherman, Montana Vocational recognized
that the agency had been “unsuccessful in finding a driving job for Robert that
does not involve heavy lifting and labor.”
Only after these failures did Sherman invite Montana Vocational to close his
case. In doing so, he explained that he did it because “my back’s not in the best of
shape right now, and I kinda need to wait until a few months from now;” “I can’t
really work 3-5 hours and I can’t really put in a 5-day work week either.”
In short, the vocational program reports support rather than disprove
Sherman’s recurring back pain and physical inability to work.
3. Sherman’s failure to have back surgery was also an inappropriate
2
ground for rejecting Sherman’s testimony. “[I]f a claimant complains about
disabling pain but fails to seek treatment, or fails to follow prescribed treatment,
for the pain, an ALJ may use such failure as a basis for finding the complaint
unjustified or exaggerated.” Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). But
there are four problems with the ALJ’s doing so here.
First, there is no clear prescription during the period at issue that Sherman
should follow through with back surgery. Second, there are indications, in two
doctors’ reports, that Sherman did not have back surgery when it was previously
recommended because he could not afford it, and that he remained interested in
doing so if he could obtain funding for it. “[D]isability benefits may not be denied
because of the claimant’s failure to obtain treatment he cannot obtain for lack of
funds.” Id. (quoting Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995)); see
Regennitter v. Commissioner of the Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th
Cir. 1999). Third, in light of that fact that Sherman has consistently sought
treatment for his back pain, his hesitancy to have a major surgery cannot cast doubt
on his claim. “It is common knowledge that spinal surgery is often dangerous and
entails much pain and suffering.” Schena v. Secretary of Health & Hum. Servs.,
635 F.2d 15, 20 (1st Cir. 1980) (reversing Secretary’s decision that claimant’s
rejection of spinal surgery barred him from disability benefits “[g]iven the
3
uncertain (and sometimes adverse) consequences of spinal surgery”) (internal
quotation marks omitted). While Social Security regulations require claimants to
follow “treatment prescribed by [a] physician” to receive benefits, the same
regulations make clear that if the claimant has “a good reason” for not following
the prescribed treatment, rejection of treatment will not be held against the
claimant. 20 C.F.R. § 416.930(a) & (b); see Molina v. Astrue, 674 F.3d 1104, 1114
(9th Cir. 2012); SSR 96–7p, 1996 WL 374186 (July 2, 1996). The regulations
further specify that an example of “a good reason for not following treatment” is
that “[t]he treatment because of its enormity (e.g., open heart surgery) . . . is very
risky for you.” 20 C.F.R. § 416.930(c)(4). Finally, Sherman did purse several
treatments for his back pain other than surgery (epidurals, pain medication,
physical therapy).
In short, the fact that Sherman has not yet had spinal surgery can have no
bearing on his credibility.
4. The ALJ also cited the lack of limitations placed on Sherman by his
treating physicians, and his physicians’ recommendation of exercise. However,
Sherman suffers from obesity and hypertension. So the exercise recommendation
is to be expected, and does not indicate ability to work.
Moreover, examination of the medical reports reveal a recognition that pain
4
might well limit Sherman’s ability to engage in the recommended treatment, as the
reports also include recommendations for rest and pain management, rather than
uniform recommendations of exercise.
5. Dr. Hurd’s statement that, in his view, Sherman overplayed his
limitations and had “poor credibility as an examinee” was based on Dr. Hurd’s
observations of Sherman’s behavior during the consultative exam. The ALJ was
entitled to consider Dr. Hurd’s view in assessing Sherman’s credibility.
However, Dr. Hurd’s evaluation was equivocal and stated only his “intuitive
feeling” that Sherman had a greater ability than he showcased. Moreover, Dr.
Hurd was a consulting examiner, so his opinion is entitled to less weight than the
opinions of treating physicians. See Holohan v. Massanari, 246 F.3d 1195, 1202
(9th Cir. 2001); 20 C.F.R. § 416.927(c). Not a single treating physician suggested
that Sherman was malingering or inventing pain. If they had, one would think they
would not have prescribed him serious pain medication and considered him a
candidate for spinal surgery. My colleagues in the majority refer to reports from
Drs. Goodell and Mozer. But Dr. Goodell cited Sherman’s “inability to cooperate/
participate,” (emphasis added), and Dr. Mozer was a consulting psychologist, who
did not evaluate Sherman’s physical disabilities.
Furthermore, the ALJ himself does not attribute significant weight to Dr.
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Hurd’s finding, stating only that Dr. Hurd’s assessment “does not enhance the
claimant’s credibility,” and does not cite to either Dr. Goodell’s or Dr. Mozer’s
reports as supporting the credibility determination.
Finally, the ALJ rejected Sherman’s narration of his limited daily activities
as evidence of his disability, because his account was not objectively verifiable,
and because his limited daily activities could have been attributed to his marijuana
dependence. These remaining considerations do not constitute substantial evidence
supporting the ALJ’s credibility determination, and so the ALJ’s reliance on these
considerations does not make the aforementioned errors harmless. See Carmickle
v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (error is
harmless if “ALJ’s remaining reasoning and ultimate credibility determination
were adequately supported by substantial evidence in the record” (emphasis
omitted)).
II.
Had the ALJ credited Sherman’s testimony as true, he would have been
obliged to include Sherman’s testimony as to his limitations in determining
Sherman’s residual functioning capacity, including Sherman’s testimony that he
has to lie down to two or three times a day, throughout the day, for up to an hour or
two at a time to take the pressure off his back. According to the vocational
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expert’s evidence at the ALJ hearing, including this limitation in the residual
functioning capacity results in a finding that Sherman was disabled. Therefore, I
would remand to the agency for calculation and an award of benefits. Lingenfelter
v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007).
For all these reasons, I respectfully dissent.
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