Pamela Back v. Carolyn Colvin

FILED
NOT FOR PUBLICATION
JUN 29 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMELA BACK, No. 14-35013
Plaintiff - Appellant, D.C. No. 3:13-cv-05053-RSL
v.
MEMORANDUM*
CAROLYN W. COLVIN,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted June 9, 2016
Seattle, Washington
Before: EBEL,** PAEZ, and BYBEE, Circuit Judges.
Pamela Back appeals the denial of social security disability benefits. We
review the district court’s decision de novo, Valentine v. Comm’r Soc. Sec. Admin.,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David M. Ebel, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
574 F.3d 685, 690 (9th Cir. 2009), applying the “highly deferential” substantial
evidence standard to the ALJ’s determination that Back is not disabled, id.; see
also 42 U.S.C. § 405(g), and affirm.
1. The ALJ’s adverse credibility determination against Back is supported by
substantial evidence, and the ALJ gave “specific, clear and convincing reasons” for
its finding. Chaudhry v. Astrue, 688 F.3d 661, 670–71 (9th Cir. 2012). Back
claimed to be in constant, debilitating pain that rendered her bedridden “at least
four days” a week. But, substantial evidence in the record showed that Back went
to Yoga “every Thursday,” began going to church and joined the choir, walked her
dogs, did yard work, did laundry, cared for her kids, went “beachcombing” for two
hours, volunteered for Habitat for Humanity, assaulted a woman, completed 134
hours of community service for the assault, and took a 12-week self defense class.
She also sought out employment in housekeeping or companionship services, and
some record evidence suggested that family pressures and concerns about
parenting—as opposed to debilitating pain—motivated Back to leave full-time
employment. Daily activities inconsistent with a claimant’s self-described level of
pain, Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), as well as
inconsistency in a claimant’s reasons for leaving work, Bruton v. Massanari, 268
F.3d 824, 828 (9th Cir. 2001), are valid reasons for an adverse credibility finding,
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and here, they are supported by substantial evidence. Any error the ALJ
committed in saying that Back’s fibromyalgia and chronic pain syndrome
diagnoses lacked an objective basis in the record was harmless in light of this other
evidence.
2. For the same reasons, we affirm the ALJ’s partial adverse credibility
findings against the testimony of Back’s friends and family. Each of these
witnesses provided testimony about the severity of Back’s pain that roughly
matched Back’s own description. Back’s boyfriend, for example, testified that
Back could not “move quickly for any reason without coming to tears from pain.”
This testimony is inconsistent with Back’s claims, noted above, about the severity
of her pain, and the ALJ provided “specific reasons” that were “germane to each
witness” in finding each of them only partially credible. Bruce v. Astrue, 557 F.3d
1113, 1115 (9th Cir. 2009) (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d
1050, 1053–54 (9th Cir. 2006)).
3. We reject each of Back’s arguments concerning the ALJ’s treatment of
the medical evidence in the record. First, Dr. Nejad’s conclusion as to Back’s
mental health is unequivocal: Back had “no significant psychiatric barriers that
would prevent her from working at this time.” Second, the ALJ did not err in
giving “little weight” to Dr. Nejad’s observation that Back’s “most significant
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barrier” to employment was her physical pain. There is no evidence whatsoever
that Dr. Nejad conducted a physical (as opposed to psychological) examination of
Back during her single visit. Thus, the ALJ could properly discount Back’s
“physical symptoms as reported to Dr. Nejad,” based on the adverse credibility
finding against Back.1
Second, the ALJ’s treatment of Dr. Peterson’s evaluation was appropriate
because Peterson simply reviewed Dr. Nejad’s report, as well as Back’s file, and
adopted Dr. Nejad’s conclusion that there was no significant barrier to Back
working.
Third, the ALJ’s conclusion that Back “has an intact psychological capacity
[sufficient] to complete an average work week,” is supported by substantial
evidence. The fact that in 2010 Back was “confused” about an appointment time at
the VA, or that in 2007 Nejad noted Back was unfamiliar with the proverb “a
1
We also reject Back’s reliance on Social Security Rulings 85-15 and 96-8p.
SSR 85-15 applies when there is a “substantial loss of ability” to “understand,
carry out, and remember simple instructions; to respond appropriately to
supervision, coworkers, and usual work situations; and to deal with changes in a
routine work setting.” Nejad expressly concluded that Back could perform even
complex and detailed tasks, as well as “accept instructions from supervisors [and]
interact with coworkers and the public.” SSR 96-8p, in turn, applies when a
claimant’s mental and physical impairments limit the claimant’s ability to work a
regular 40-hour work week. But, again, Back has no such mental limitation, and
any claim of a physical limitation was properly discounted based on Back’s
credibility.
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rolling stone gathers no moss,” and had trouble counting backwards from 100 by
7s, is hardly compelling enough to overcome, for example, Nejad’s conclusion that
Back had no mental health barriers to working (so long as she received outpatient
treatment).
Fourth, contrary to Back’s argument, the ALJ did not ignore Back’s various
low Global Assessment of Functioning (GAF) scores. The ALJ expressly took
note of them but found them unhelpful because such scores take into account
factors unrelated to disability (like current financial situation), and do “not have
direct correlation to the severity requirements in [Social Security Administration]
mental disorders listings” in the relevant federal regulations. Back points to no
authority requiring the ALJ to adopt the GAF scores as 1-to-1 indicators of Back’s
mental health. The ALJ’s finding that Back’s mental health symptoms were
“consistently described as mild to moderate” was supported by substantial
evidence. If the ALJ erred in also rejecting the GAF scores based on a faulty belief
that they were based on Back’s subjective reports to doctors (rather than the
doctors’ own subjective interpretation of Back’s current level of functioning), it
was harmless in light of these other reasons.
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Fifth, Back’s challenge to the ALJ’s treatment of the opinions of Drs.
Hoskins and Turner is waived, as it was raised for the first time on appeal. See
Greger v. Barnhart, 464 F.3d 968, 973–74 (9th Cir. 2006).
4. Finally, even if Back had not similarly waived her challenge to the ALJ’s
residual functional capacity findings, see id., it would make no difference because
her challenge hinges entirely on the above claims of error—none of which is
meritorious.
5. The “key question is not whether there is substantial evidence that could
support a finding of disability, but whether there is substantial evidence to support
the Commissioner’s actual finding that the claimant is not disabled.” Jamerson v.
Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). The ALJ’s finding is supported by
substantial evidence.
AFFIRMED.
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