Lisa Healy v. Michael Astrue

FILED
NOT FOR PUBLICATION MAY 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LISA M. HEALY, No. 08-56561
Plaintiff - Appellant, D.C. No. 2:07-cv-02593-CJC-CT
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted February 3, 2010
Pasadena, California
Before: B. FLETCHER, PREGERSON, and GRABER, Circuit Judges.
Lisa Healy appeals the denial of her claim for Social Security Disability
Insurance and Supplemental Security Income benefits. The parties are familiar
with the facts of this case, which we repeat here only to the extent necessary to
explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review the Commissioner of Social Security’s denial of benefits de
novo. Gillett-Netting v. Barnhart, 371 F.3d 593, 595 (9th Cir. 2004). We must
affirm the Commissioner’s decision if it is supported by substantial evidence and
applies the correct legal standards. Batson v. Comm’r of Soc. Sec. Admin., 359
F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is “more than a mere
scintilla but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Sandgathe v. Chater, 108
F.3d 978, 980 (9th Cir. 1997) (per curiam) (internal quotation marks).
To establish disability due to a disorder of the spine, Listing 1.04 requires
nerve root compromise, as well as limitation of spine motion and, in the case of
lower back impairments such as Healy’s, a positive straight-leg raising test. 20
C.F.R. Pt. 404, subpt. P, app. 1A1.04. Here, Dr. Boeck explicitly found no nerve
root compromise at any level, and straight-leg raising tests were negative. Dr.
Flannery found that Healy had a normal range of motion. Dr. Zaki also found that
Healy exhibited a full range of motion in the cervical spine. Substantial evidence
supports the administrative law judge’s (“ALJ”) finding that Healy’s impairments
do not meet or medically equal the spine-related impairments described in Listing
1.04.
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Chronic fatigue may be a disabling impairment “when it is accompanied by
medical signs or laboratory findings.” SSR 99-2p. A diagnosis of chronic fatigue
requires:
clinically evaluated, persistent or relapsing chronic fatigue that is of new
or definite onset (i.e., has not been lifelong), cannot be explained by
another physical or mental disorder, is not the result of ongoing exertion,
is not substantially alleviated by rest, and results in substantial reduction
in previous levels of occupational, educational, social, or personal
activities.
Id. Here, Healy’s impairments do not meet the requirements of Social Security
Ruling 99-2p. Healy reported that she had “always” felt fatigued, and Dr.
Tempesti reported that Healy had a “longstanding history” of fatigue. Thus,
Healy’s fatigue did not meet the “new or definite onset” condition necessary to a
chronic fatigue diagnosis. Dr. Ritvo found that Healy had no impairment in her
memory or concentration. [SER 251-2] Furthermore, Drs. Tempesti and Gunnell
found several possible alternative sources of Healy’s fatigue, including anemia,
vitamin deficiency, and excessive tobacco use. [SER 342, 364] Though Dr. Alpern
expressed disagreement with SSR 99-2p, both he and the ALJ correctly applied the
ruling to determine that Healy was not disabled due to chronic fatigue syndrome.
Substantial evidence supported that determination. See Andrews v. Shalala, 53
F.3d 1035, 1041 (9th Cir. 1995) (holding that eports of non-examining expert
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“may serve as substantial evidence when they are supported by other evidence in
the record ”).
Lastly, Healy argues that the ALJ erred by failing to consider the opinion of
treating physician Dr. Joey Brett. Dr. Brett’s opinion was presented only to the
Appeals Council, and was never submitted to the ALJ for consideration. On
appeal, however, we may consider both the ALJ’s decision and additional material
submitted to the Appeals Council. Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th
Cir. 1993).
“When confronted with conflicting medical opinions, an ALJ need not
accept a treating physician’s opinion that is conclusory and brief and unsupported
by clinical findings.” Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
Dr. Brett treated Healy for only about one month. His report consists of a “check
the box” style questionnaire and includes no objective clinical findings. As the
Appeals Council stated, Dr. Brett’s opinion does not merit great weight or affect
the determination that Healy is not disabled.
AFFIRMED. Each side to bear its own costs.
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