Amy Kelly v. Michael Astrue

FILED
NOT FOR PUBLICATION
MAR 12 2012
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMY A KELLY, No. 10-36147
Plaintiff - Appellant, D.C. No. 3:09-cv-05710-RBL
v.
MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted February 8, 2012
Seattle, Washington
Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.
Amy A. Kelly appeals from the district court’s decision affirming the
Commissioner of Social Security’s (“Commissioner”) final decision, which
concluded that Kelly is not entitled to Disability Insurance Benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 401-434. We reverse in part and remand
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to the district court with instructions to remand to the Administrative Law Judge
(“ALJ”) because we conclude that the ALJ failed to provide specific and legitimate
reasons for rejecting the opinions of treating and examining psychiatrists, mental
health counselors, social workers, and an advanced registered nurse practitioner.
We dismiss in part because we lack jurisdiction to review Kelly’s challenge to the
Appeals Council’s decision.
I
Kelly challenges the ALJ’s residual functional capacity determination that
she could perform a limited range of “light work.” We review de novo the district
court’s review of 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.A
First, Kelly contends that the ALJ erred in failing to consider the medical
opinion of her treating psychiatrist, Dr. Manfred Joeres, and her treating physician,
Dr. Cindy Schorzman, and also did not to consider the evidence from her treating
mental health counselors and social workers.
Kelly is correct that the ALJ disregarded entirely the medical opinion of Dr.
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Joeres and Dr. Schorzman. “Because treating physicians are employed to cure and
thus have a greater opportunity to know and observe the patient as an individual,
their opinions are given greater weight than the opinions of other physicians.”
Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). “Therefore, an ALJ may
not reject treating physicians’ opinions unless [s]he ‘makes findings setting forth
specific, legitimate reasons for doing so that are based on substantial evidence in
the record.’” Id. (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.
1989)). “[A]n ALJ cannot avoid these requirements simply by not mentioning the
treating physician’s opinion and making findings contrary to it.” Lingenfelter v.
Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007).
The ALJ erred in silently disregarding the medical opinions of treating
psychiatrist Dr. Joeres related to Kelly’s ability to function in a work setting. Even
though Dr. Schorzman was Kelly’s primary care physician from August 2005 until
July 2006, there was no error in the ALJ’s failure to mention Dr. Schorzman’s
treatment notes because they do not contain any medical opinions that are
significant or probative with respect to the residual functional capacity
determination. See Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394–95
(9th Cir. 1984) (“The Secretary, however, need not discuss all evidence presented
to her. Rather, she must explain why ‘significant probative evidence has been
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rejected.’” (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (emphasis
in original)).
Kelly is also correct that the ALJ disregarded entirely the evidence from her
treating mental health counselors and social workers. Although mental health
counselors and social workers are not “acceptable medical sources,” 20 C.F.R.
§ 404.1513(a), they are “other sources” under 20 C.F.R. § 404.1513(d), and the
ALJ may only disregard their testimony if he or she “gives reasons germane to
each witness for doing so.” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,
1223–24 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.
2001)). The ALJ erred in silently disregarding the treatment notes from these
treating mental health counselors and social workers when determining Kelly’s
residual functional capacity.
B
Second, Kelly contends that the ALJ erred by improperly discrediting part of
the medical opinion of examining psychiatrist, Dr. James Parker, and rejecting
evidence from examining nurse practitioner, Aimee Wagonblast, A.R.N.P. “[L]ike
the opinion of a treating doctor, the opinion of an examining doctor, even if
contradicted by another doctor, can only be rejected for specific and legitimate
reasons that are supported by substantial evidence in the record.” Lester v. Chater,
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81 F.3d 821, 830–31 (9th Cir. 1995). Dr. Parker and Ms. Wagonblast assigned
Global Assessment of Functioning (“GAF”) scores of 52 and 40–45, respectively.
Substantial evidence does not support the ALJ’s reasons for rejecting Dr. Parker or
Ms. Wagonblast’s GAF scores.
C
Third, Kelly contends that the ALJ erred by improperly discrediting her
hearing testimony. “If there is no affirmative evidence that the claimant is
malingering, the ALJ must provide clear and convincing reasons for rejecting the
claimant’s testimony regarding the severity of symptoms.” Rollins v. Massanari,
261 F.3d 853, 857 (9th Cir. 2001). “The ALJ may consider many factors in
weighing a claimant’s credibility, including ‘(1) ordinary techniques of credibility
evaluation, such as the claimant’s reputation for lying, prior inconsistent
statements concerning the symptoms, and other testimony by the claimant that
appears less than candid; (2) unexplained or inadequately explained failure to seek
treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily
activities.’” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting
Smolen, 80 F.3d at 1284).
The ALJ discredited Kelly’s testimony regarding the intensity, persistence,
and limiting effects of her mental impairment based on her failure to seek as much
5
treatment as would be expected in light of her symptoms, inconsistencies between
her hearing testimony and the record evidence, as well as her daily activities.
These reasons for rejecting Kelly’s testimony were clear and convincing, and
substantial evidence supports the ALJ’s adverse credibility determination. See
Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“The ALJ is permitted to
consider lack of treatment in his credibility determination.”). Her hearing
testimony that she left her job because of her anxiety and depression is
contradicted by treatment notes indicating that she did not return to work after
going on medical leave to take care of her husband because she did not like her
job. In addition, Kelly testified that her daily activities include driving, washing
the dishes, shopping, and caring for her two children by getting them ready for
school in the morning, walking them to the bus stop, doing their laundry, feeding
them, and engaging in educational activities with her son to help him learn his
letters and numbers. Although the evidence of Kelly’s daily activities may also
admit of an interpretation more favorable to Kelly, the ALJ’s interpretation was
rational, and “we must uphold the ALJ’s decision where the evidence is susceptible
to more than one rational interpretation.” Id. at 680–81 (quoting Magallanes, 881
F.2d at 750 (alteration in original omitted)).
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D
Because the harmless error doctrine applies in the Social Security context,
McLeod v. Astrue, 640 F.3d 881, 887 n.25 (9th Cir. 2011), we must determine
whether remand is appropriate in light of our determination that some of the ALJ’s
findings were in error. From this record, we cannot determine whether the error
was harmless because the ALJ did not provide a statement of her reasons for
rejecting evidence relevant to the determination of Kelly’s residual functional
capacity. We must therefore reverse and remand to the district court with
instructions to remand to the ALJ to consider all of the evidence and to explain
why she credits some testimony over others.
II
Kelly also challenges the ALJ’s finding that her mental impairment did not
meet or equal the criteria of paragraph C in Listing 12.04.1 She has not pointed to
any evidence in support of her contention that she meets or equals the paragraph C
criteria, and substantial evidence supports the ALJ’s finding that she does not. See
20 C.F.R. pt. 404, subpt. P, app. 1 § 12.04C; Lewis, 236 F.3d at 514.
1
We decline to address Kelly’s contention that the ALJ erred in finding that
her mental impairment did not meet or equal the criteria of paragraph B, because
she “failed to argue this issue with any specificity” in her opening brief. Carmickle
v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008).
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III
Lastly, Kelly contends that the Appeals Council erred in failing to remand
Kelly’s claim for a new hearing in light of the new evidence she submitted on
appeal. We dismiss this contention because we lack jurisdiction to review the
Appeals Council’s decision denying Kelly’s request for review. See Taylor v.
Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011) (“When the
Appeals Council denies a request for review, it is a non-final agency action not
subject to judicial review because the ALJ’s decision becomes the final decision of
the Commissioner.”).
REVERSED in part; DISMISSED in part; REMANDED.
Each party shall bear its own costs.
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