Michelle Hurter v. Michael Astrue ( 2012 )

FILED
NOT FOR PUBLICATION JAN 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHELLE R HURTER, No. 10-35997
Plaintiff - Appellant, D.C. No. 3:09-cv-05617-RBL
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted October 14, 2011
Seattle, Washington
Before: BEEZER and PAEZ, Circuit Judges, and COLLINS, District Judge.**
Michelle Hurter challenges the denial of disability benefits by the
Commissioner of the Social Security Administration. Because we hold that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raner C. Collins, District Judge for the U.S. District
Court for Arizona, sitting by designation.
substantial evidence supports the decision of the administrative law judge (ALJ),
we affirm the judgment of the district court.
We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291. The
facts of this case are known to the parties. We need not repeat them here.
I
We review de novo an order by the district court upholding a decision by the
Social Security Commissioner that denies benefits to an applicant. Batson v.
Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). We affirm a
decision by the Commissioner if it is “supported by substantial evidence, and if the
Commissioner applied the correct legal standards.” Id. If the “evidence is
susceptible to more than one rational interpretation, it is the ALJ’s conclusion that
must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
II
Hurter first argues that the ALJ erred by failing to classify some of her
alleged impairments as severe. Hurter is incorrect.
The ALJ provided ample support in determining which of Hurter’s
impairments were non-severe. For example, there was no evidence of appellant’s
depression or anxiety other than her subjective complaints. Further, the evidence
showed that medication was treating her migraines and high blood pressure.
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Hurter also argues that the ALJ failed even to identify certain impairments.
She contends that the medical record supports her argument, but most of the
reports she cites are inconclusive. The two most salient pieces of evidence
supporting her case are Dr. Seiwert’s evaluations and Hurter’s own testimony at
the benefits hearing. But, as we discuss in Part III below, the ALJ properly
discredited both. Hurter had the burden of proving that her impairments affected
her ability to perform basic work activities, Edlund v. Massanari, 253 F.3d 1152,
1159–60 (9th Cir. 2001), and substantial evidence supports the ALJ’s conclusion
that she did not meet that burden.
III
Hurter next contends that the ALJ made a variety of mistakes in assessing
her residual functional capacity (RFC). She argues that the ALJ erred by
discrediting her hearing testimony, evaluating the medical evidence as he did, and
failing to consider all of her impairments. We address each in turn.
The ALJ did not err in discounting Hurter’s testimony. Credibility
determinations are the province of the ALJ, Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 599 (9th Cir. 1999), but “the ALJ can reject the claimant’s
testimony about the severity of her symptoms only by offering specific, clear and
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convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
1996).
The ALJ provided numerous specific, clear and convincing reasons to find
that Hurter had exaggerated the gravity of her symptoms. First, the objective
evidence contradicts Hurter’s testimony regarding the severity of her symptoms.
For example, the ALJ referenced a doctor’s report that stated she had a normal
tandem gait. Hurter is correct that there is some conflicting evidence; a physical
therapist concluded that Hurter does suffer from some gait issues. We do not,
however, “reverse credibility determinations of an ALJ based on contradictory or
ambiguous evidence.” Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995).
The ALJ noted Hurter’s conservative treatment as another reason to discredit
her testimony. “[E]vidence of ‘conservative treatment’ is sufficient to discount a
claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481
F.3d 742, 751 (9th Cir. 2007) (quoting Johnson, 60 F.3d at 1434). The ALJ
referenced the prescription of home exercise to treat her back problems, the fact
that she was not a candidate for surgery and the successful use of medication to
treat her migraines.
Hurter’s failure to follow prescribed treatment without adequate explanation
is also relevant to a credibility analysis. See Tommasetti v. Astrue, 533 F.3d 1035,
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1039 (9th Cir. 2008). Hurter continues to smoke despite warnings from her
doctors regarding its impact on her lung condition and has “decreased adherence”
to her prescribed exercises due to forgetfulness.
Hurter argues correctly that the ALJ should not have cited her daily
activities as a reason to discredit her testimony. They neither contradict her other
testimony nor bear a meaningful relationship to workplace activities. See Orn v.
Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Even excluding this rationale, however,
there remains substantial evidence supporting the ALJ’s decision to discount
Hurter’s testimony. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir.
2001).
We turn next to the ALJ’s analysis of Dr. Seiwert’s reports. We hold that
there is substantial evidence for rejecting her evaluations. But because of the
deference our circuit accords the opinions of treating physicians, see Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1995), and the fact that Dr. Seiwert and Hurter
have a 15-year treatment relationship, we will explain our reasoning thoroughly.
We note initially that the ALJ needed only to provide “specific and
legitimate” reasons supported by substantial evidence for rejecting Dr. Seiwert’s
opinion. Id. (holding that an ALJ must have specific and legitimate reasons for
rejecting a treating physician’s opinion when it is contradicted by another doctor).
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“The ALJ can meet this burden by setting out a detailed and thorough summary of
the facts and conflicting clinical evidence, stating [his] interpretation thereof, and
making findings.” Tommasetti, 533 F.3d at 1041 (citation and internal quotation
marks omitted). Dr. Rao concluded that Hurter could stand or walk comfortably
for six hours a day and lift up to 25 pounds frequently, directly contravening Dr.
Seiwert’s assessment. The specific and legitimate standard is less searching than
the clear and convincing rationale required for rejecting the uncontradicted opinion
of a treating physician, see Lester, 81 F.3d at 830–31, and the ALJ properly
explained why he relied on Dr. Rao’s evaluation instead of Dr. Seiwert’s.
The ALJ met his burden by providing specific and legitimate reasons for
rejecting Dr. Seiwert’s opinions. First, the ALJ noted that the doctor’s reports
were largely informed by Hurter’s own subjective complaints. We have held that
“[a]n ALJ may reject a treating physician’s opinion if it is based ‘to a large extent’
on a claimant’s self-reports that have been properly discounted as incredible.”
Tommasetti, 533 F.3d at 1041 (quoting Morgan, 169 F.3d at 602). The record
supports the ALJ’s conclusion. Much of the first evaluation recounts what Dr.
Seiwert herself labels Hurter’s “Subjective Medical History” or “Subjective and
Medical History.” The information that follows fits this description. For example,
in the paragraph labeled “depression” Dr. Seiwert writes that Hurter “suffered
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abuse as a child, which caused depression and subsequent drug abuse.” There is no
other such evidence in the record. The paragraph on migraines is comprised
almost entirely of descriptions of pain and frequency of symptoms. The hearing
loss section notes that Hurter received a recommendation for hearing aids. In fact,
Dr. Becker only wrote that Hurter was “borderline” for hearing aids.
The ALJ also reasoned that the medical record as a whole did not support
Dr. Seiwert’s conclusions. The contrary opinions of other doctors constitute a
specific and legitimate reason to discount a treating physician’s opinion. See
Tonapetyan, 242 F.3d at 1149. Drs. Rao and Merrill both concluded that Hurter
could sit or stand for six hours out of an eight-hour workday, contrary to Dr.
Seiwert’s assessment. Those doctors also opined that Hurter had the ability to lift
weights greatly in excess of Dr. Seiwert’s estimate.
Another reason proffered by the ALJ is that the other records referenced in
Dr. Seiwert’s treatment notes do not support her conclusions. Cf. Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (discrepancies between a doctor’s
own notes and conclusions constitute a clear and convincing reason to reject that
doctor’s opinion). The diagnoses in Dr. Brack’s report are far more subdued than
Dr. Seiwert’s. For example, Dr. Brack acknowledged back problems, but opined
that Hurter was not a candidate for surgery and instead proposed a walking
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program. He also noted an ability to forward flex with her fingers to her toes and
suggested only that Hurter “take precautions bending and lifting.” These
discrepancies in the treatment notes are a specific and legitimate reason to reject
Dr. Seiwert’s opinion.
The ALJ chose to credit greatly the opinions of Drs. Rao and Merrill. As the
district court noted, Hurter cannot provide a compelling reason why this decision
was error. Likewise she complains that the ALJ failed to discuss certain medical
reports, but the opinions she cites are not significant probative evidence. See
Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (holding that ALJ
need only discuss significant probative evidence). “Where as here, medical reports
are inconclusive, questions of credibility and resolution of conflicts in the
testimony are functions solely of the [Commissioner].” Sample v. Schweiker, 694
F.2d 639, 642 (9th Cir. 1982) (internal quotation marks omitted).
Hurter next argues that the ALJ failed to consider all of her severe and non-
severe impairments when assessing her RFC. This contention gives us pause
because it does appear that the ALJ may have failed to consider the totality of her
impairments at this stage of his analysis. We hold, however, that any failure was
harmless error.
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Social Security Ruling 96-8p is clear that the ALJ must consider all of a
claimant’s impairments during the RFC assessment, not just those classified as
“severe.” “While a ‘not severe’ impairment(s) standing alone may not
significantly limit an individual’s ability to do basic work activities, it may—when
considered with limitations or restrictions due to other impairments—be critical to
the outcome of a claim.” SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996). In
his RFC analysis the ALJ failed to consider explicitly Hurter’s alleged impairments
of depression, anxiety, a hernia and an ankle injury.
The ALJ’s omission of these impairments does not require reversal of the
RFC assessment because any error was harmless. First, although the ALJ did not
explicitly consider the above impairments, he stated that he had considered all
symptoms in formulating the RFC. In addition, these four alleged impairments
were devoid of almost any merit. As discussed supra, the only support for
Hurter’s allegations of depression and anxiety were her own subjective complaints
in Dr. Seiwert’s evaluation. Hurter had apparently successful surgery to remove
the hernia and a radiograph of her ankle fracture showed “at most only a few
millimeters of displacement.” The ALJ discussed these very reasons at step two
while classifying Hurter’s depression, anxiety, hernia and ankle injury as non-
severe. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054–55 (9th Cir.
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2006) (noting that ALJ commits harmless error when the mistake was
“nonprejudicial” or “irrelevant” to the ultimate disability conclusion). Given the
meager medical support for these impairments, we hold that the ALJ’s failure to
consider how these impairments might complicate Hurter’s other symptoms was
harmless error.
IV
Hurter next challenges the ALJ’s decision to apply Medical-Vocational Rule
202.20, which directs a finding of “not disabled.” Appellant identifies three issues
at step five: the failure to consult a vocational expert, the determination that she is
capable of light instead of sedentary work and her classification as a “younger
individual.”
For the reasons stated by the district court, Hurter is correct that the ALJ
should have consulted a vocational expert on the issue of her ability to perform
other work existing in significant numbers in the national economy. Where a
claimant has exertional and non-exertional impairments, the ALJ cannot rely on the
grids alone to find the claimant not disabled. Lounsburry v. Barnhart, 468 F.3d
1111, 1115–16 (9th Cir. 2006). The district court was correct in remanding the
case to the ALJ on this issue.
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Hurter is wrong, however, that the ALJ erred in determining that she was
capable of light work. Because her arguments merely reiterate her challenge to her
RFC finding, our determination that the ALJ did not err applies here as well. See
Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008).
The ALJ did err in determining Hurter’s age. Instead of using her age on the
date she filed her application, the ALJ should have used her age on the date of his
decision. See Russell v. Bowen, 856 F.2d 81, 84 (9th Cir. 1988). On remand, the
ALJ should calculate Hurter’s age on the date of the new decision. See Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1229 n.9 (9th Cir. 2009). After he
obtains a vocational expert’s testimony as to what kind of work someone with
Hurter’s limitations can do, the ALJ should consider this updated age to decide
whether she can find work in the national economy. See Valentine v. Comm’r Soc.
Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009).
V
Because substantial evidence supports the ALJ’s analysis at step two and at
the RFC stage, we affirm. We thus reject Hurter’s request to remand for an award
of benefits. See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). This case
is remanded to the ALJ as ordered by the district court for proceedings consistent
with the district court’s judgment and this memorandum disposition.
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AFFIRMED and REMANDED.
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