Teresa Hensley v. Kilolo Kijakazi ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERESA M. HENSLEY, No. 22-15796
Plaintiff-Appellant, D.C. No. 2:20-cv-01448-KJN
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kendall J. Newman, Magistrate Judge, Presiding
Submitted July 20, 2023**
San Francisco, California
Before: SILER,*** WARDLAW, and M. SMITH, Circuit Judges.
Teresa M. Hensley appeals the district court’s decision upholding the
Commissioner of Social Security’s denial of her application for disability insurance
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
benefits under Title II of the Social Security Act. We have jurisdiction under 28
U.S.C. § 1291. A district court’s grant of summary judgment is reviewed de novo,
and we will only reverse “if the ALJ’s findings are based on legal error or are not
supported by substantial evidence in the record.” Attmore v. Colvin, 827 F.3d 872,
875 (9th Cir. 2016). We affirm.
1. First, even if the district court erred in declining to consider Dr.
Chaney’s opinion, submitted for the first time to the Appeals Council, substantial
evidence supports the ALJ’s non-disability finding even when the opinion is
considered. See Brewes v. Comm’r, 682 F.3d 1157, 1163 (9th Cir. 2012) (finding
that the district court erred in not considering evidence plaintiff submitted for the
first time to the Appeals Council and assessing whether substantial evidence
supports the ALJ’s decision when the new evidence is taken into account). Dr
Chaney’s cursory physical assessment form states that Hensley was incapable of
performing “even simple work tasks” but references no objective evidence. The
“ALJ need not accept the opinion of any physician, including a treating physician,
if that opinion is brief, conclusory, and inadequately supported by clinical findings.”
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Moreover, Dr. Chaney’s
notes from 2016 contradict the 2019 opinion. In 2016, Dr. Chaney noted that
Hensley was in no acute distress, had normal motor strength, sensation, reflexes,
psychiatric functioning, and no atrophy or spasticity. See Bayliss v. Barnhart, 427
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F.3d 1211, 1216 (9th Cir. 2005) (discrepancy between doctor’s opinion and her own
notes supports discounting the opinion).
2. Next, substantial evidence supports the ALJ’s holding that Hensley’s
mental health impairments were non-severe.1 Although Hensley received a poor
prognosis while attending counseling through the State of Texas, the ALJ found that
progress notes in the record consistently showed that she “demonstrated calm and
cooperative behavior, linear thought processes, adequate insight and judgment,
intact memory, euthymic affect with some restriction at times, and full orientation.”
Also, the state agency’s mental health consultants, Susan Posey, Psy.D., and Edward
Beaty, Ph.D., reviewed Hensley’s medical record and opined that she did not have a
severe mental impairment. The ALJ gave their opinions “good weight” because they
were consistent with the medical record and Hensley’s mental health showed
improvement and was “not severe for at least 12 continuous months.” In addition,
although Hensley’sprovider at Focus & Rebalance, Rebecca Perthel, PA-C, stated
that Hensley was “not capable of returning to work,” her own statement was “not
1
At step two of the ALJ’s five-step disability determination, the ALJ must
determine whether a “claimant has a medically severe impairment or combination
of impairments.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing §
404.1520(a)(4)(ii)). A non-severe finding at step two will be upheld if it is
supported by substantial evidence, id. at 687, and the substantial evidence
threshold “is not high,” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).
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entirely consistent with her own-authored progress notes . . . t.hat often reflect[ed]
normal mental status examination findings.”2
Furthermore, Hensley failed to demonstrate that her mental impairments,
including PTSD, depression, and anxiety, prevented her from engaging in gainful
activity. See Degen v. Berryhill, 725 F. App’x 550, 553 (9th Cir. 2018) (holding that
claimant’s work history undercut his claim that his mental impairments were severe
and prevented him from engaging in gainful activity). The ALJ’s holding is
supported by substantial evidence.
3. Finally, clear and convincing evidence supports the ALJ’s rejection of
Hensley’s subjective testimony regarding the severity of her symptoms. See Smartt
v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (explaining that an ALJ’s decision to
disregard subjective testimony must be supported by clear and convincing evidence).
“Contradiction with the medical record is a sufficient basis for rejecting the
claimant’s subjective testimony.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d
1155, 1161 (9th Cir. 2008).
2
Furthermore, the ALJ was not even required to consider this opinion because it
gave an ultimate conclusion of disability instead of objectively describing an
impairment’s severity. See § 20 C.F.R. 404.1527(d)(1)–(2) (noting that “[a]
statement by a medical source that you are ‘disabled’ or ‘unable to work’” is not a
medical opinion and is instead a determination “reserved to the Commissioner”);
see also McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (“The law reserves
the disability determination to the Commissioner.”).
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After considering Hensley’s alleged symptoms and reviewing the objective
medical evidence, the ALJ concluded that the medical evidence was “not entirely
consistent” with the claimant’s allegations. The ALJ specifically pointed to progress
notes showing improvement in Hensley’s gait, muscle strength and reflexes; good
recovery from spinal cord stimulator implantation; better control of pain;
improvement following ankle surgery; positive mood and improvement working
through PTSD and anxiety; and multiple instances of Hensley starting new jobs.
Because the medical record contradicts Hensley’s subjective testimony regarding
the severity of her symptoms, this court will affirm the district court. Id. at 1161.
AFFIRMED.
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