Leilanie Thune v. Michael Astrue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 29 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
LEILANIE D. THUNE, No. 11-35866
Plaintiff - Appellant, D.C. No. 4:10-cv-00067-SEH
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted November 7, 2012 **
Portland, Oregon
Before: ALARCÓN, McKEOWN, and PAEZ, Circuit Judges.
Leilanie D. Thune appeals from the district court’s decision granting
summary judgment in favor of the Commissioner of Social Security
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“Commissioner”) and affirming the Commissioner’s final decision, which
concluded that Thune was not entitled to Disability Insurance Benefits under Title
II of the Social Security Act, 42 U.S.C. §§ 401-434. We have jurisdiction under
28 U.S.C. § 1291. We review de novo the district court’s order upholding the
Commissioner’s decision. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,
1193 (9th Cir. 2004). We affirm the decision of the Commissioner if it is
supported by substantial evidence, and the Commissioner applied the correct legal
standards. Id. The “Commissioner’s findings are upheld if supported by
inferences reasonably drawn from the record.” Id. If evidence exists to support
more than one rational interpretation, we must defer to the Commissioner’s
decision. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.
1999). We affirm in part, reverse in part, and remand.
I
Substantial evidence supports the Administrative Law Judge’s (“ALJ”)
determination that Thune’s depression was not severe because it caused her no
more than a minimal limitation in her ability to function. See Smolen v. Chater, 80
F.3d 1273, 1290 (9th Cir. 1996) (“An impairment or combination of impairments
can be found ‘not severe’ only if the evidence establishes a slight abnormality that
has ‘no more than a minimal effect on an individual[’]s ability to work.’”) (quoting
2
SSR 85-28, 1985 WL 56856 (1985)). Thune twice testified that she was not
depressed, and examining psychologist Mark Johnson did not diagnose Thune with
depression. Although her treating physician, Dr. James Hinde, stated in his
treatment notes that he believed Thune was depressed and prescribed her anti-
depressants, he did not identify any functional limitations resulting from his
diagnosis.
II
Substantial evidence supports the ALJ’s decision to accord lesser weight to
Dr. Hinde’s May 1, 2008, medical opinion. “Where the treating doctor’s opinion is
not contradicted by another doctor, it may be rejected only for ‘clear and
convincing’ reasons supported by substantial evidence in the record.” Orn v.
Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation omitted). Dr. Hinde’s May 1,
2008, medical opinion was contradicted by his prior opinions and by the
observations he recorded in his treatment notes that same day. See Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (explaining that the discrepancy
between a treating doctor’s assessment that the claimant could not stand or walk
and his recorded observations was a “clear and convincing reason for not relying
on the doctor’s opinion”). Nor is Dr. Hinde’s May 1, 2008, opinion supported by
the treatment notes of other treating and examining physicians in the record.
3
III
Substantial evidence supports the ALJ’s adverse credibility determination
because he gave “‘specific, clear and convincing reasons’” for rejecting Thune’s
testimony regarding the severity of her symptoms. Chaudhry v. Astrue, 688 F.3d
661, 671 (9th Cir. 2012) (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
2009)). The ALJ properly discredited Thune’s allegations of pain because they
contradicted her testimony regarding her daily activities, which included
gardening, cleaning, cooking with cast-iron cookware, and running errands. See
Morgan, 169 F.3d at 600 (affirming the ALJ’s adverse credibility determination
where the claimant’s claim of disability was contradicted by his “ability to fix
meals, do laundry, work in the yard, and occasionally care for his friend’s child”).
The ALJ’s adverse credibility determination is also supported by Thune’s
falsehood concerning the loss of her medicine and a discrepancy in the record
regarding why she left her last position of employment. See Chaudhry, 688 F.3d at
672 (holding that an ALJ may consider “ordinary techniques of credibility
evaluation, such as . . . testimony by the claimant that appears less than candid”
(quoting Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)).
IV
4
However, substantial evidence does not support the ALJ’s residual
functional capacity assessment because he erred in determining that Thune could
perform an eight-hour work day with normal breaks. In making this determination,
the ALJ failed to include limitations based on certain of Dr. Hinde’s opinions or to
give “‘specific and legitimate reasons’ supported by substantial evidence in the
record” for rejecting those opinions. Orn, 495 F.3d at 632 (quoting Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1995)). In his December 28, 2004, treatment
notes, Dr. Hinde opined that Thune could work only six and a half hours per day.
In his May 6, 2004, and February 5, 2004, treatment notes, Dr. Hinde
recommended, among other things, that Thune take a break every half hour for five
to ten minutes and a 15-minute break every two hours. These opinions were
contradicted by the opinion of the State Disability Determination Services
evaluator, Dr. David Jordan, who opined that Thune could perform an eight-hour
work day “(with normal breaks).” Even though the ALJ accorded “great weight”
to Dr. Jordan’s opinion, he failed to address Dr. Hinde’s December, May, and
February 2004 opinions, let alone provide specific and legitimate reasons
supported by substantial evidence in the record for rejecting them. Because we
“may not affirm the ALJ on a ground upon which he did not rely,” id. at 630, we
remand for the ALJ to address Dr. Hinde’s opinions and either to accept them or to
5
provide specific and legitimate reasons supported by substantial evidence in the
record for rejecting them.
Each party shall bear its own costs for this appeal.
AFFIRMED in part; REVERSED in part; REMANDED.
6