Michael Hocevar, III v. Kilolo Kijakazi

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL J. HOCEVAR III, No. 20-36069
Plaintiff-Appellant, D.C. No. 6:19-cv-01731-BR
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted December 8, 2021**
San Francisco, California
Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.
Michael J. Hocevar III appeals from the district court’s decision affirming the
Commissioner of Social Security’s denial of his application for supplemental
security income under Title XVI of the Social Security Act. We have jurisdiction
under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We review the district court’s order
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
de novo and may grant relief only if the administrative law judge’s (“ALJ”) decision
was not supported by substantial evidence or is based on legal error. Ghanim v.
Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014). We affirm in part, vacate in part, and
remand for further proceedings.1
1. Substantial evidence supports the ALJ’s “specific, clear and convincing
reasons” for discounting Hocevar’s testimony regarding the intensity and limiting
effects of his symptoms. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)
(simplified). The ALJ noted several contradictions between Hocevar’s testimony
regarding his symptoms on the one hand, and his daily activities and treatment for
his symptoms on the other.
Hocevar testified that “he cannot work because [he] feels that someone ripped
his soul out of his body and [his] joints are really loose like a shell.” Hocevar further
claimed that he lacked friends and that “people annoy me.” The ALJ, however,
found that his daily activities were inconsistent with this testimony, as Hocevar has
sole custody of his 12-year-old son for whom he cares, among other things, by
driving him to and from school, cooking for him, attending his parent/teacher
conferences, and helping him with homework. Further, Hocevar reported in 2018
that he exercises 30 minutes per day seven days a week. Hocevar also admitted he
1
As stated below, Judge Bumatay would affirm the district court’s order in its
entirety.
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plays pool with friends at a bar. These activities militate against Hocevar’s
credibility, allowing the ALJ to conclude that they are inconsistent with Hocevar’s
claimed limitations. See Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007)
(explaining that one factor in assessing a claimant’s credibility is “whether the
claimant engages in daily activities inconsistent with the alleged symptoms”).
Hocevar also testified that he has “uncontrollable pain all over his body.”
But, the ALJ noted, Hocevar treats this pain with only homeopathic remedies and
nonprescription pain medications. “[E]vidence of conservative treatment is
sufficient to discount a claimant’s testimony regarding severity of an impairment.”
Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (simplified).
2. Substantial evidence supports the ALJ’s reasons for discounting Dr.
Alvord’s opinion. The ALJ noted several contradictions between Dr. Alvord’s
opinion and the objective medical evidence, including his own examination. For
example, Dr. Alvord opined that Hocevar had moderate limitations in most areas of
functioning, but his objective testing indicated normal thought processes, normal
thought content, normal speech, normal long-term and short-term memory, good
ability to perform calculations, low average intellectual functioning, and no sign of
brain injury. An incongruity between a doctor’s opinion and the medical record
serves as a “specific and legitimate reason for rejecting” the doctor’s opinion. See
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
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The ALJ also noted that Dr. Alvord’s opinion that Hocevar could not work
full-time appeared to be based on Hocevar’s perceptions of his own physical
limitations. As stated above, however, the ALJ discounted Hocevar’s statements
regarding his limitations. A medical opinion may be disregarded if the “opinion of
disability [is] premised to a large extent upon the claimant’s own accounts of his
symptoms and limitations . . . where those complaints have been properly
discounted.” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (simplified).
3. Hocevar argues that the ALJ failed to provide specific and legitimate
reasons for discounting Dr. Taubenfeld’s opinion. For an ALJ to properly reject a
medical opinion, he must provide “specific and legitimate reasons that are supported
by substantial evidence.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th
Cir. 2008) (quotations omitted). The ALJ gave Dr. Taubenfeld’s opinion little
weight because it relied on Hocevar’s test performances (which the ALJ felt could
be manipulated), and because it was inconsistent with the objective medical evidence
and the observations of others. The ALJ cited no specific reasons to suggest that
Hocevar could control his test results, to show that Dr. Taubenfeld’s opinion was
inconsistent with his medical report, or to demonstrate that Dr. Taubenfeld’s opinion
was contradicted by others’ observations, except for a general citation to a 350-page
exhibit, which is insufficient.
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The lack of specific and legitimate reasons for discounting Dr. Taubenfeld’s
opinion was not harmless error.2 While it is true that Dr. Taubenfeld and Dr.
Alvord’s conclusions were generally consistent, this alone is not enough to find
harmless error. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (quotations
omitted) (“[A] reviewing court cannot consider an error harmless unless it can
confidently conclude that no reasonable ALJ, when fully crediting the testimony,
could have reached a different disability determination.”). Dr. Taubenfeld
performed different evaluations of Hocevar than Dr. Alvord. And Dr. Taubenfeld’s
evaluation raised several limitations and work restrictions that were not discussed
by Dr. Alvord. The differences in the doctors’ opinions show that the discounting
of Dr. Taubenfeld’s opinion without further explanation was not “inconsequential to
the ultimate nondisability determination,” Robbins v. Soc. Sec. Admin., 466 F.3d
880, 885 (9th Cir. 2006). Accordingly, conflicting evidence remains unresolved,
2
Judge Bumatay respectfully dissents on this issue and would find the ALJ’s error
harmless. Given the similarities between Dr. Alvord’s and Dr. Taubenfeld’s
opinions and the reasoning supplied by the ALJ throughout his decision, Judge
Bumatay would conclude that no reasonable ALJ could have reached a different
final disability determination following proper consideration of Dr. Taubenfeld’s
opinion. Cf. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.
2009) (concluding that an ALJ properly rejected a claimant’s wife’s testimony
because “the ALJ provided clear and convincing reasons for rejecting [the
petitioner’s] own subjective complaints, and because [his wife’s] testimony was
similar to such complaints”).
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making a remand for further proceedings necessary. See Treichler v. Comm'r of Soc.
Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014).
AFFIRMED in part, VACATED in part, and REMANDED for further
proceedings. The parties shall bear their own costs on appeal.
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