Franklin Lee v. Cssa

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 21 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FRANKLIN R. LEE, No. 11-35244
Plaintiff - Appellant, D.C. No. 1:09-cv-06220-CL
v.
MEMORANDUM*
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted March 5, 2012
Portland, Oregon
Before: W. FLETCHER, FISHER, and BYBEE, Circuit Judges.
Franklin Lee appeals the decision of the district court affirming the final
determination of the Social Security Commissioner denying his claim for disability
benefits and supplemental security income under Titles II and XVI of the Social
Security Act. Because we find that the Administrative Law Judge’s (“ALJ”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decision was not based on legal error and was supported by substantial evidence,
Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009), we
affirm.
Lee argues that “the ALJ failed to give clear and convincing reasons for
rejecting [his] testimony.” Where, as here, objective medical evidence establishes
that the claimant suffers from an impairment that could reasonably produce the
complained of symptoms, “an adverse credibility finding must be based on clear
and convincing reasons.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,
1160 (9th Cir. 2008) (internal quotation marks omitted). In making the credibility
determination, an ALJ may consider the course of treatment to determine whether
allegations of a disability are credible, see Fair v. Bowen, 885 F.2d 597, 603 (9th
Cir. 1989) (finding that an “unexplained, or inadequately explained, failure to seek
treatment or follow a prescribed course of treatment” is a valid basis to reject
claimant testimony), as well as the testimony’s compatibility with the medical
evidence, see Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (holding that
an ALJ may consider “testimony from physicians and third parties concerning the
nature, severity, and effect of the symptoms of which [a] claimant complains” to
evaluate a claimant’s subjective complaints (internal quotation marks omitted)).
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Finding that Lee’s allegations about “the extent of his limitations . . . are not
supported by the objective evidence to the degree alleged,” the ALJ noted
inconsistencies between Lee’s complaints and medical evidence, as well as the lack
of any ongoing treatment. Because the ALJ cited to several clear and convincing
reasons for finding Lee’s testimony not entirely credible, the ALJ did not err in
discrediting Lee’s subjective complaints.
Lee next argues that the ALJ erred in failing to include Lee’s personality
disorder as a “severe” impairment at Steps Two and Four of the sequential
analysis. The record demonstrates, however, that the ALJ’s failure to include
Lee’s personality disorder at Step Two—if error at all—was harmless, because the
ALJ discussed Lee’s personality disorder in the context of his residual functional
capacity analysis after finding that Lee’s other mental disabilities were severe.
Where an ALJ fails to consider a disorder at Step Two, but nonetheless accounts
for that disorder at Step Four in the residual functioning capacity analysis, any
alleged error in failing to find the disorder “severe” at Step Two is harmless. See
Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Lee has therefore failed to
show reversible error in the consideration of his personality disorder.
Lee next contends that the ALJ improperly discounted the opinion of his
examining psychologist, Dr. Prescott, and instead credited the opinions of Dr.
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Balsamo and Dr. Redner, both of whom also examined Lee. “The ALJ is
responsible for determining credibility and resolving conflicts in medical
testimony.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If a
contradicted medical opinion is rejected, the ALJ must provide “specific and
legitimate reasons supported by substantial evidence in the record” for that
rejection. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (internal quotation
marks omitted).
The ALJ noted that unlike other examining sources, Dr. Prescott “did not
have the benefit of reviewing the claimant’s record with [sic] history of learning
disorder and cognitive disorder.” Finding that the opinions of Dr. Balsamo and Dr.
Redner exhibited “more comprehensive testing and evaluation of his overall
history and record,” the ALJ relied on their opinions attributing Lee’s impairments
to cognitive disorders, not to the depression cited by Dr. Prescott. The ALJ thus
provided specific and legitimate reasons for discounting the contradicted opinion
of Dr. Prescott.
Lee also contends that the ALJ erred by failing to acknowledge treating
physician Dr. Phillips’s observation that Lee may suffer from cognitive defects or
mental retardation, and that Lee appeared to have memory problems. The ALJ,
however, did consider Dr. Phillips’s report regarding Lee’s poor memory and gave
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that report little weight, noting that Dr. Phillips “did not record any medical
findings and noted [that Lee] would require a psychological evaluation for possible
cognitive deficits.” The ALJ’s decision to afford the report of Dr. Phillips little
weight is supported by substantial evidence as even Dr. Phillips was hesitant to
make any medical findings about Lee.
Lee next argues that the ALJ improperly discounted the lay witness
statements of Darlene Reasoner, Lee’s mother-in-law. The ALJ discounted
Reasoner’s statement (identified by the ALJ as “reports provided by . . . third
parties”) because her characterization of Lee’s limitations “is not supported by the
objective evidence,” including the medical evidence. Because the ALJ articulated
a valid reason for rejecting Reasoner’s statement, and that reason is supported by
substantial evidence, the ALJ did not err in discounting Reasoner’s report.
Finally, Lee argues that if his testimony and medical evidence were credited,
and therefore incorporated into the hypothetical posed to the vocational expert, the
expert would have found that Lee would have been unable to perform work in the
national economy. Because we affirm the ALJ’s consideration of the evidence, we
likewise reject Lee’s challenge to the conclusion provided by the vocational expert.
In sum, we do not find any legal error or that the evidence was insufficient
to support the ALJ’s determination. Bray, 554 F.3d at 1222. We note, however,
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that Lee has a history of losing jobs after holding them for only a short period of
time. If that pattern continues, and if he were to then file a subsequent application
for benefits, that continued pattern would present a new issue related to Lee’s
claim for disability and would preclude the application of res judicata based on the
present adjudication. See Vasquez v. Astrue, 572 F.3d 586, 597 n.9 (9th Cir. 2009)
(“[A]ll an applicant has to do to preclude the application of res judicata is raise a
new issue in the later proceeding.”).
AFFIRMED.
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