Jason Putman v. Carolyn W. Colvin

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JASON PUTMAN, No. 13-35075
Plaintiff - Appellant, D.C. No. 1:12-cv-00007-CSO
v.
MEMORANDUM*
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Carolyn S. Ostby, Magistrate Judge, Presiding
Submitted June 2, 2014**
Seattle, Washington
Before: McKEOWN and WATFORD, Circuit Judges, and WHYTE, Senior
District Judge.***
*
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).
***
The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
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Jason Putman (“Putman”) filed for disability insurance benefits in June
2009, alleging a disability beginning October 1, 2008. The Administrative Law
Judge (“ALJ”) found Putman not disabled because he could perform unskilled,
medium work. The district court affirmed. We affirm the district court’s decision
because substantial evidence in the record supports the ALJ’s finding that Putman
is not disabled.
This court reviews a district court’s decision upholding the denial of social
security benefits de novo. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1172 (9th
Cir. 2008). “The Social Security Administration’s disability determination should
be upheld unless it is based on legal error or is not supported by substantial
evidence.” Ryan v. Comm’r of Social Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Putman argues that the ALJ’s decision is not supported by substantial
evidence based on five asserted errors the ALJ allegedly committed in evaluating
Putman’s back and mental health impairments.
Putman argues that the ALJ ignored objective medical evidence of a severe
back impairment, improperly disregarded Putman’s testimony on back pain, and
relied on a vocational consultant’s assessment that did not include physical
limitations due to back pain. The ALJ did note a November 9, 2009 radiology
report which revealed “[e]vidence of early degenerative disc disease at the L2-L3
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level.” However, the ALJ found that Putman infrequently reported back pain to his
doctors, was never prescribed any medication for back pain, and no doctor placed
restrictions on his physical activity. The ALJ therefore provided “ clear and
convincing” reasons for determining that Putman’s own back pain testimony
lacked credibility. See Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en
banc). Because Putman’s subjective account of his back pain and physical
limitations were not adequately supported, the ALJ was entitled to rely on the
vocational consultant’s assessment which did not include those limitations. See
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006). The ALJ’s finding
that Putman could do a range of unskilled medium work was supported by
substantial evidence.
Putman also argues that the ALJ erred in discounting counselor Debbie
Webber-Dereszynski’s opinion that Putman had mental impairments that preluded
him from working. Substantial evidence supports the ALJ’s decision to discount
Webber-Dereszynski’s opinion. First, her opinion was inconsistent with the
findings of other medical sources. Drs. Malloy, Nicholson, Bateen, and McFarland
all determined that Putman’s mental impairments were not severe. Second,
Webber-Dereszynski is not an acceptable medical source under 20 C.F.R.
§ 404.1513(a). “The fact that a medical opinion is from an ‘acceptable medical
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source’ is a factor that may justify giving that opinion greater weight than an
opinion from a medical source who is not an ‘acceptable medical source’ because
. . . ‘acceptable medical sources’ ‘are the most qualified health care
professionals.’” SSR 06-03p, 2006 WL 2329939. The ALJ adequately explained
that he gave less weight to Webber-Dereszynski’s opinion because of these two
factors.
The ALJ also properly discounted a conclusion drawn by Dr. Martin, which
was based on Webber-Dereszynski’s records. Dr. Martin testified that Putman
“probably” met the criteria for disability if she relied only on Webber-
Dereszynski’s records, but Putman would not have a disability based on “most” of
the records. The ALJ properly gave more weight to the latter conclusion of Dr.
Martin because that conclusion considered all of the evidence, rather than just
selected portions. See 20 C.F.R. § 404.1527(c)(4) (“Generally, the more consistent
an opinion is with the record as a whole, the more weight we will give to that
opinion.”).
AFFIRMED.