Sadie Burkett v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
MAR 6 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SADIE C. BURKETT, No. 18-36028
Plaintiff-Appellant, D.C. No. 3:17-cv-05893-MAT
v. MEMORANDUM*
ANDREW M. SAUL, Commissioner of
the Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted February 5, 2020**
Seattle, Washington
Before: M. SMITH and N.R. SMITH, Circuit Judges, and TUNHEIM,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable John R. Tunheim, Chief United States District Judge for
the District of Minnesota, sitting by designation.
Sadie C. Burkett appeals the District Court’s decision affirming the
Commissioner of Social Security’s denial of her application for supplemental
security income under Title XVI of the Social Security Act for the time period from
May 1, 2011 to January 31, 2016. We have jurisdiction under 28 U.S.C. § 1291.
We review the District Court’s order affirming the denial of social security benefits
by the Administrative Law Judge (“ALJ”) de novo. Ghanim v. Colvin, 763 F.3d
1154, 1159 (9th Cir. 2014). We will reverse only if the ALJ’s decision was not
supported by substantial evidence or is based on legal error. Id. When evidence is
susceptible to more than one rational interpretation, “we must uphold the ALJ’s
findings if they are supported by inferences reasonably drawn from the record.”
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). We affirm.
The ALJ did not err in giving limited weight to Burkett’s nonexamining
psychologists, Dr. Kraft and Dr. van Dam, regarding Burkett’s disability. An ALJ
may reject the opinion of nonexamining physicians so long as the ALJ references
“specific evidence in the medical record” that supports doing so. Sousa v. Callahan,
143 F.3d 1240, 1244 (9th Cir. 1998). The ALJ accepted the opinions of Drs. Kraft
and van Dam as to cognitive and social limitations but gave limited weight to their
opinions regarding the impact of Burkett’s mental-health symptoms on her ability to
persist. In making this determination, the ALJ pointed to medical evidence that
Burkett’s mental-health status was unremarkable.
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Additionally, the medical record shows that Burkett sought mental-health
treatment from May 2011 until October 2012. However, Burkett did not seek
mental-health treatment from October 2012 until August 2016. Drs. Kraft and van
Dam reviewed Burkett’s record in 2011 and therefore could not assess Burkett’s
mental-health symptoms over the subsequent four years. In the absence of any
medical evidence that Burkett’s decision not to seek mental-health treatment was
attributable to her impairment, the ALJ did not err in giving limited weight to
Burkett’s nonexamining physicians regarding her ability to persist. See Molina, 674
F.3d at 1114 (concluding that, because “there was no medical evidence that Molina’s
resistance was attributable to her mental impairment rather than her own personal
preference,” it “was reasonable for the ALJ to conclude that the level or frequency
of treatment [was] inconsistent with the level of complaints” (internal quotation
omitted) (alteration in original)).
The ALJ also did not err in discounting the testimony of Physician Assistant
Nixon. A physician assistant is an “other source” and is “not entitled to the same
deference” as a licensed physician.1 Molina, 674 F.3d at 1111 (citing 20 C.F.R.
1 The Social Security Administration subsequently defined physician assistants as
acceptable medical sources for claims filed on or after March 27, 2017. 82 Fed. Reg. 5844(Jan. 18, 2017) (“We recognized physician assistants as AMSs for claims filed on or after
March 27, 2017, in final [20 C.F.R. §§] 404.1502 and 416.902.”). Burkett filed this
application in July 2011, so the prior definitions apply.
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§§ 404.1513(a), (d)).2 An ALJ may discount other-source opinions so long as they
provide a germane reason to do so. Id. Here, the ALJ discounted Nixon’s May 2011
opinion that Burkett could stand for only one hour in an eight-hour workday.
Although Nixon did not provide an explanation for this limitation, it appears to be
based on her incorrect assumption that Burkett would need dialysis treatment for her
kidney disease. Because Nixon’s suggested restriction appears to have been based
on an error, there was substantial evidence to support the ALJ’s rejection of the
restriction. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir.
1999). The ALJ’s decision is further bolstered by Nixon’s subsequent opinion in
October 2011, which did not contain such a restriction. The ALJ therefore provided
a germane reason to discount Nixon’s May 2011 opinion.
The ALJ offered specific, clear and convincing reasons for finding Burkett’s
testimony not to be credible, including that her testimony about her daily activities
and medical issues contradicted her medical records, record evidence that her kidney
disease had improved, record evidence that her hypertension was under control, and
record evidence that Burkett’s depression is “well controlled (when on medication
regularly).” Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (describing the
2 The claim in Molina was one for disability benefits, so the Court cited to 20 C.F.R.
§ 404. Burkett’s claim is for supplemental security income, which is governed by
20 C.F.R. § 416. The definition and evidence sections are the same for both parts.
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standard of review).
Burkett devotes a significant portion of her brief summarizing various medical
findings and summarily concludes both that this evidence is consistent with the
opinions of van Dam, Kraft, and Nixon and that it is consistent with her testimony.
In the main, these putative “arguments” are presented without specificity and
therefore are forfeited. See Carmickle v. Comm’r of the Soc. Sec. Admin., 533 F.3d
1155, 1161 n.2 (9th Cir. 2008) (noting that the Court generally will not consider
matters that are not specifically and distinctly argued in an appellant’s opening
brief). The exception is Burkett’s argument that the ALJ erred by failing to evaluate
two of Dr. Anuras’s treatment notes. However, the ALJ did address the treatment
notes, both in a letter to counsel in January 2017 and in his July 2017 decision. In
both cases, the ALJ limited admission of additional medical evidence to evidence
developed after the amended alleged disability onset date of May 1, 2011. Burkett
offers no support for the alleged error and fails to carry her burden of demonstrating
the ALJ erred.
Finally, the ALJ did not err in discounting the lay witness testimony. An ALJ
may discount the testimony of a lay witness, so long as the ALJ provides a germane
reason for doing so. “Inconsistency with medical evidence” is one reason that this
Court has concluded is germane, Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir.
2005), although this Court has also concluded that “a lack of support from the
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‘overall medical evidence’ is . . . not a proper basis for disregarding [lay]
observations,” Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017).
Here, the ALJ noted that Olmstead’s testimony was accorded “partial weight
overall given that the degree to which she reported that the claimant is limited is
somewhat inconsistent with the above-described record as a whole.” This reason is
closer to Bayliss than Diedrich, in that it describes conflict, rather than simply lack
of support. Therefore, the ALJ properly provided a germane reason to discount
Olmstead’s testimony. Moreover, the ALJ provided a second reason to discount
Olmstead’s testimony: inconsistencies within the statement itself. Burkett failed to
challenge this reason and has therefore forfeited her right to contest it. Bray v.
Comm’r of the Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th Cir. 2009)
(concluding an argument is lost when not made in the opening brief).
Because Burkett fails to show that the ALJ improperly weighed or failed to
consider the evidence, her derivative claims regarding the ALJ’s residual functional
capacity and hypothetical questions also fail. See Stubbs-Danielson v. Astrue,
539 F.3d 1169, 1175–76 (9th Cir. 2017).
AFFIRMED.
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