Sheena Presley-Carrillo v. Nancy Berryhill

FILED
NOT FOR PUBLICATION
JUL 3 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHEENA MARIE PRESLEY- No. 15-17286
CARRILLO,
D.C. No. 2:14-cv-00742-JAT
Plaintiff-Appellant,
v. MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted June 15, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and CARNEY,***
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 Cormac J. Carney, United States District Judge
for the Central District of California, sitting by designation.
Plaintiff-Appellant Sheena Marie Presley-Carrillo appeals the district court’s
order affirming the Commissioner of the Social Security Administration’s denial of
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§
401 et seq., based on the finding that she could perform her past relevant work as a
cashier. Ms. Presley-Carrillo alleged that she had been unable to work since
August 30, 2010, due to schizophrenia, bipolar disorder, manic depression, and
being seriously mentally ill. She argues that the Administrative Law Judge
(“ALJ”) erred in discounting the opinions of her treating and examining
physicians, discounting her own testimony regarding her symptoms, and failing to
conduct a function-by-function assessment of her claimed limitations in
determining that her residual functional capacity was the ability to perform simple,
repetitive, unskilled work.
We review de novo the district court’s order affirming the denial of
disability benefits. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). We may set
aside an ALJ’s denial of benefits only if it is based on legal error or not supported
by substantial evidence. Id. An ALJ may reject a physician’s uncontroverted
opinion if he gives “clear and convincing” reasons that are supported by substantial
evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). “Substantial
evidence means more than a mere scintilla but less than a preponderance; it is such
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relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The ALJ gave clear and convincing reasons supported by substantial
evidence for affording “little weight” to the opinion of Dr. Beatriz Mateus, Ms.
Presley-Carrillo’s treating physician. In June 2012, Dr. Mateus opined that Ms.
Presley-Carrillo suffered moderate impairments in her ability to perform complex
or varied tasks, respond to work pressures, and complete a normal workday
without unreasonable interruptions from psychological symptoms, as well as
moderately severe impairments in her ability to respond appropriately to coworkers
and supervisors. The ALJ discounted Dr. Mateus’s opinion because he found that
it conflicted with her own medical treatment notes and there were no other
objective or clinical findings to support the opinion. The record as a whole
supports the ALJ’s finding. The treatment notes reflected consistently mild
symptoms, mental stability, and no further delusions or hallucinations from June
2011 onwards, when Ms. Presley-Carrillo stopped using illicit drugs and was
compliant with her medications. See Valentine v. Comm’r Soc. Sec. Admin., 574
F.3d 685, 693 (9th Cir. 2009) (concluding that inconsistency between physician’s
3
opinion and treatment notes was a proper basis for discrediting opinion); Connett v.
Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (same).
Ms. Presley-Carrillo also argues that the ALJ improperly relied on the
Global Assessment of Function (“GAF”) score recorded in her treatment notes in
discounting Dr. Mateus’s opinion. She argues that this score was suspect because
it remained at 70 (indicating only mild impairments) even when the treatment notes
otherwise demonstrated that her symptoms had significantly worsened. Although
GAF scores in isolation are insufficient to determine a patient’s level of
functioning, the Social Security Administration has indicated that they should be
“considered as medical opinion evidence under 20 C.F.R. §§ 404.1527(a)(2) and
416.927(a)(2) when they are from an acceptable medical source.” Soc. Sec. Disab.
Claims Handbook § 2:15 n.40 (citing SSA Administrative Message 13066). Here,
the ALJ considered the GAF score alongside the remainder of the extensive
treatment notes in concluding that Dr. Mateus’s opinion deserved “little weight;”
that was not an error.
The ALJ likewise gave clear and convincing reasons supported by
substantial evidence for attributing “little weight” to the opinion of Dr. Marcel Van
Eerd, the examining physician. Dr. Van Eerd examined Ms. Presley-Carrillo once
in December 2010 and opined, among other things, that Ms. Presley-Carrillo
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suffered mild to moderate limitations in understanding simple, work-like
instructions and severe limitations in maintaining routine and adapting, and
demonstrated a poor ability to make work decisions on a consistent basis and to
manage stress. He also opined that she would have “severe limitations” in
maintaining a repetitive routine and would likely require “more than routine
supervision.” The ALJ did not simply discredit Dr. Van Eerd’s opinion because
there were more recent medical records available, as Ms. Presley-Carrillo argues.
Rather, the ALJ found that the treatment notes from the year and a half after Dr.
Van Eerd’s assessment showed significant improvement in her condition. Nor did
the ALJ rely on Dr. Mateus’s discredited opinion to discredit that of Dr. Van Eerd,
as Ms. Presley-Carrillo contends. Rather, he relied on Dr. Mateus’s extensive
treatment notes to discount the workplace functionality opinions of both Dr.
Mateus and Dr. Van Eerd.
The ALJ also criticized Dr. Van Eerd’s opinion in part because Dr. Van Eerd
did not define the terms “mild,” “moderate,” or “severe” in his assessment. This
criticism was improper, since the ALJ did not raise such concerns at the hearing.
See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (explaining that
ALJ has an independent “duty to fully and fairly develop the record and to assure
that the claimant’s interests are considered,” and “[a]mbiguous evidence, or the
5
ALJ’s own finding that the record is inadequate to allow for proper evaluation of
the evidence, triggers the ALJ’s duty to ‘conduct an appropriate inquiry.’” (quoting
Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996))). However, this error was
harmless because the ALJ gave a reason supported by the record for not giving
much weight to Dr. Van Eerd’s opinion—specifically, that it conflicted with more
recent treatment notes from Dr. Mateus. Carmickle v. Comm’r, Soc. Sec. Admin.,
533 F.3d 1155, 1162 (9th Cir. 2008) (concluding that ALJ’s error was harmless in
light of other valid reason given for adverse credibility determination).
The ALJ also provided clear and convincing reasons supported by
substantial evidence for discounting Ms. Presley-Carrillo’s testimony regarding her
symptoms of confusion and being unable to concentrate. The ALJ reasonably
concluded that this testimony was not credible because it conflicted with the
medical evidence showing mild impairments and stable condition when Ms.
Presley-Carrillo was not taking illicit drugs and was taking her prescribed
medications. Moreover, as the ALJ reasonably found, Ms. Presley-Carrillo’s
typical daily activities were inconsistent with her symptom testimony—particularly
given that she already worked part-time and regularly handled money at home by
paying bills, managing a savings account, counting change, and using a checkbook.
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Molina v. Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012) (“While a claimant need
not ‘vegetate in a dark room’ in order to be eligible for benefits . . . the ALJ may
discredit a claimant’s testimony when the claimant reports participation in
everyday activities indicating capacities that are transferable to a work setting.”
(quoting Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987))). The ALJ did not
discredit Ms. Presley-Carrillo’s testimony due to a lack of supporting evidence, as
Ms. Presley-Carrillo contends, but rather, because her testimony conflicted with
evidence of her daily activities and, more importantly, with the extensive treatment
notes indicating that she consistently exhibited mild symptoms and mental stability
when she stopped using illicit drugs and took her prescribed medications. See, e.g.,
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599–600 (9th Cir. 1999)
(concluding that ALJ’s rejection of claimant’s testimony was supported by clear
and convincing reasons in light of inconsistencies between claimant’s testimony
and objective medical evidence in the record).
Ms. Presley-Carrillo also argues that the ALJ failed to view her
noncompliance in taking prescribed medications as part of her overall mental
illness when discounting her testimony. However, Ms. Presley-Carrillo does not
point to any evidence in the record demonstrating that her mental health
impairments caused that noncompliance. Cf. Garrison v. Colvin, 759 F.3d 995,
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1018 n.24 (9th Cir. 2014) (“[W]e do not punish the mentally ill for occasionally
going off their medication when the record affords compelling reason to view such
departures from prescribed treatment as part of claimants’ underlying mental
afflictions.”). The record demonstrates that in the year leading up to the hearing
before the ALJ, Ms. Presley-Carrillo was capable of consistently taking her
prescribed medications.1
Finally, the ALJ did not err in finding that Ms. Presley-Carrillo’s residual
functional capacity was the ability to perform simple, repetitive, unskilled work or
in concluding that she could perform her past relevant work as a cashier. Contrary
to Ms. Presley-Carrillo’s assertion, it was not necessary for the ALJ to list the
requirements of a cashier job and then compare those requirements to Ms. Presley-
Carrillo’s capabilities on a function-by-function basis. Bayliss, 427 F.3d at 1217(“Preparing a function-by-function analysis for medical conditions or impairments
that the ALJ found neither credible nor supported by the record is unnecessary.”).
The ALJ had already discredited Ms. Presley-Carrillo’s symptom testimony and
1
Ms. Presley-Carrillo also contends that the ALJ erred in discounting
her testimony on the ground that she made inconsistent statements about her
sobriety. We need not reach this issue, however, because the ALJ provided
sufficient other reasons for discounting her testimony—namely, that her testimony
conflicted with evidence of her typical daily activities and the information
contained in Dr. Mateus’s treatment notes.
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the opinions of Dr. Van Eerd and Dr. Mateus; accordingly, there was no remaining,
credible evidence that supported Ms. Presley-Carrillo’s claimed limitations. The
ALJ found, and the record adequately supports, that Ms. Presley-Carrillo’s
episodes of psychiatric difficulties were directly related to her use of illicit drugs
and her failure to take prescribed medications. Substantial evidence supported the
ALJ’s conclusion that when Ms. Presley-Carrillo did not take illicit drugs and was
compliant with her prescribed medications, the impairments that she suffered were
not severe enough to impact her ability to engage in simple, repetitive, unskilled
work.2
AFFIRMED.
2
Ms. Presley-Carrillo also argues that the ALJ improperly relied on
the Medical-Vocational Guidelines in determining that she could perform other
jobs which exist in the national economy. We need not reach this issue because the
ALJ’s conclusion that she could perform other existing jobs was an alternative
basis for denying benefits, and we have affirmed another basis—the ALJ’s finding
that she could perform her past relevant work as a cashier.
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