Constance Mccutcheon v. Michael Astrue

FILED
NOT FOR PUBLICATION MAY 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CONSTANCE MCCUTCHEON, No. 09-35548
Plaintiff - Appellant, D.C. No. 1:07-cv-01745-CL
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
**
Submitted March 5, 2010
Portland, Oregon
Before: PAEZ, TALLMAN, and M. SMITH, Circuit Judges.
Constance McCutcheon Thompson (“McCutcheon”) appeals the district
court’s judgment affirming the Commissioner of Social Security’s final decision to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
deny her application for Supplemental Security Income benefits under Title XVI of
the Social Security Act. Because the parties are familiar with the facts and
procedural history of this case, we will discuss them only as necessary to explain
our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in
part and reverse in part.
First, McCutcheon claims that the ALJ erred by rejecting lay witness
testimony. It was error to disregard Ms. Harrington’s testimony on the basis that
she had no medical or vocational training. Bruce v. Astrue, 557 F.3d 1113,
1115–16 (9th Cir. 2009). When an ALJ fails to properly consider—or properly
discount—competent lay witness testimony that is favorable to the claimant, “a
reviewing court cannot consider the error harmless unless it can confidently
conclude that no reasonable ALJ, when fully crediting the testimony, could have
reached a different disability determination.” Stout v. Comm’r, Soc. Sec. Admin.,
454 F.3d 1050, 1056 (9th Cir. 2006) (emphasis added). While there may be
substantial evidence in the record to support the ALJ’s ultimate determination, and
the ALJ might properly reject Ms. Harrington’s testimony on other grounds, we
cannot say that no reasonable ALJ would have reached a different disability
determination. The error was not harmless.
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McCutcheon next argues that the ALJ improperly rejected the opinions of
multiple physicians. This claim lacks merit. First, Dr. Spear’s own evaluations
from 2001 to 2004 conflict with his demarcations on the 2006 form provided by
McCutcheon’s attorney. The ALJ’s decision to reject Dr. Spear’s later opinion was
not error. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“[W]hen
evaluating conflicting medical opinions, an ALJ need not accept the opinion of a
doctor if that opinion is brief, conclusory, and inadequately supported by clinical
findings.”). Second, the ALJ did not err in partially rejecting Dr. Cole’s analysis,
because his evaluation was done at the request of an attorney and was not based on
objective medical evidence. Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir.
1996). Third, there was no error when the ALJ expressly disregarded the opinions
of McCutcheon’s counselor, Mr. MacKendrick, and gave reasons germane to him
for doing so. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). Finally,
contrary to McCutcheon’s argument, the ALJ did not actually reject Dr. Bolgrin’s
pain disorder diagnosis, as it was considered in the step-two analysis.
McCutcheon last argues that the ALJ presented a defective hypothetical to
the vocational expert because the residual functional capacity (“RFC”)
determination did not (1) specify that it was based on a forty-hour work week, and
(2) include all claimed limitations. First, we can draw “specific and legitimate
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inferences from the ALJ’s opinion,” Magallanes v. Bowen, 881 F.2d 747, 755 (9th
Cir. 1989), and the opinion makes a clear distinction between a part-time job and
work on a sustained basis. We find no error in the ALJ’s failure to expressly state
that his RFC analysis was based on a forty-hour work week. Second, because the
ALJ properly rejected the opinions of certain doctors, see supra, he did not err in
removing those limitations from his RFC determination. However, if
reconsideration of Harrington’s testimony changes the ALJ’s determination of
McCutcheon’s RFC, the hypothetical to the VE will need to be revised.
We affirm the ALJ’s rejection of testimony from several physicians, and
affirm the use of the hypothetical. We reverse the ALJ’s discounting of
Harrington’s testimony on the sole basis stated, and remand for further proceedings
consistent with this opinion.
The parties will bear their own costs.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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