Delphia Ray v. Nancy Berryhill

FILED
NOT FOR PUBLICATION
OCT 25 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DELPHIA RAY, No. 16-15748
Plaintiff-Appellant, D.C. No. 1:14-cv-01039-EPG
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Erica P. Grosjean, Magistrate Judge, Presiding
Submitted October 11, 2017**
San Francisco, California
Before: O’SCANNLAIN and BYBEE, Circuit Judges, and MAHAN,*** 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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
Delphia Ray appeals the district court’s denial of her appeal from the
decision of an Administrative Law Judge, denying Disability Insurance Benefits
and Supplementary Security Income. Two reports by an examining psychiatrist
underlie this appeal. A 2011 report concluded that Ray has no limitations to work,
but a 2013 report concluded that she has two limitations. On review, a State
agency physician rejected the 2013 report’s conclusions. The ALJ agreed and
discounted the 2013 report in her analysis of Ray’s Residual Functional Capacity.
Ray argues that the ALJ improperly discounted the 2013 report by not
providing “specific, legitimate reasons [for doing so] . . . based on substantial
evidence in the record.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). We
review only the reasons asserted by the ALJ. Id. at 630.
The 2013 report concluded that Ray is “unable to maintain attention and
concentration to carry out simple job instructions.” The ALJ discounted this
conclusion with specific, legitimate reasons supported by substantial evidence.
The ALJ relied on the State agency physician’s finding that the report was
internally inconsistent. The report is inconsistent because of the unqualified,
unconditional, and absolute nature of its conclusions. That Ray asked the
psychiatrist to repeat the digits, and that she erred somewhat while reciting them
backwards, may show that her attention and concentration deficits might make it
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difficult to follow instructions or might make a perfect performance unlikely on her
first try. Instead, with no analysis, explanation, or qualification, the 2013 report
concluded that Ray’s attention and concentration deficits are so severe that she is
unable to “carry out simple job instructions.” This is at odds with Ray’s apparent
ability to carry out the many simple instructions that the psychiatrist gave
throughout the examination, albeit with occasional error or difficulty. Moreover,
as the district court observed, even if the 2013 report is not necessarily internally
inconsistent, the ALJ gave specific, legitimate reasons for affording greater weight
to the contrary report of the State agency physician, which was supported by and
more consistent with the record as a whole.
The 2013 report also concluded that Ray is “unable to relate and interact
with coworkers, supervisors, and the general public.” The ALJ discounted this
conclusion with specific, legitimate reasons supported by substantial evidence.
The ALJ relied on the State agency physician’s finding that Ray has only moderate
social limitations, which is more consistent with the record than the 2013 report’s
unqualified and unreasoned conclusion.
The ALJ did not err in discounting the unreasoned and inconsistent opinion
that Ray’s attention and social deficits make her unable to work. The district court
order is AFFIRMED.
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