Fleming v. Commissioner of Social Security Administration

FILED
NOT FOR PUBLICATION NOV 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNA T. FLEMING, No. 11-35997
Plaintiff - Appellant, D.C. No. 3:10-cv-00990-HZ
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted August 24, 2012**
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Anna Fleming appeals the district court’s order affirming the decision of the
administrative law judge (“ALJ”) denying her application for Supplemental
*
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).
Security Income benefits. We review de novo the district court’s order affirming
the ALJ’s denial of benefits. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
2008). We may reverse the Commissioner’s decision only if it is not supported by
substantial evidence or is based on legal error. Robbins v. Soc. Sec. Admin., 466
F.3d 880, 882 (9th Cir. 2006). We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.1
Fleming argues that the ALJ erred by improperly rejecting her testimony
without providing specific reasons for doing so. “In assessing the credibility of a
claimant’s testimony regarding subjective pain or the intensity of symptoms, the
ALJ engages in a two-step analysis.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th
Cir. 2012). First, the ALJ must determine if there is medical evidence of an
impairment which could reasonably be expected to produce the symptoms alleged.
Id. If the claimant is able to provide this evidence, and there is no evidence of
malingering, the ALJ must then give specific, clear and convincing reasons to
reject the claimant’s testimony. Id. The ALJ properly conducted the two-step
analysis and reasoned that Fleming’s testimony was unreliable because it was
inconsistent with medical evidence, lay witness testimony, and the record as a
1
Because the parties are familiar with the facts underlying this appeal, we do
not recount the facts here.
2
whole. Therefore, the ALJ correctly provided specific, clear and convincing
reasons for rejecting Fleming’s testimony. See id. at 1113.
Fleming contends that the ALJ erred by discounting the contradicted
medical opinion of Dr. Rose, an examining physician, without articulating clear
and convincing reasons. The uncontradicted opinion of an examining physician
may only be rejected for clear and convincing reasons, but when that opinion has
been contradicted, the ALJ may reject it by providing “specific and legitimate
reasons that are supported by substantial evidence in the record.” Lester v. Chater,
81 F.3d 821, 830-31 (9th Cir. 1995). “A physician’s opinion of disability premised
to a large extent upon the claimant’s own accounts of his symptoms and limitations
may be disregarded where those complaints have been properly discounted.”
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (internal
quotation marks omitted). The ALJ reasoned that Dr. Rose’s opinion was
internally inconsistent and that it was based on Fleming’s subjective complaints.
Therefore, the ALJ provided specific and legitimate reasons supported by
substantial evidence in the record for discounting Dr. Rose’s medical opinion. See
Morgan, 169 F.3d at 602-03.
Fleming also claims that the ALJ erred by discounting the medical opinion
of Dr. Rawlins, another examining physician, without articulating clear and
3
convincing reasons. Because Dr. Rawlins’ opinion was contradicted, the ALJ must
have provided specific and legitimate reasons supported by substantial evidence in
the record. See Lester, 81 F.3d at 830-31. An ALJ need not accept a physician’s
opinion if it is inadequately supported by clinical findings. Bayliss v. Barnhart,
427 F.3d 1211, 1216 (9th Cir. 2005). The ALJ reasoned that Dr. Rawlins based his
medical opinion on Fleming’s subjective complaints and that there was little
clinical support for those findings. Therefore, the ALJ provided specific and
legitimate reasons supported by substantial evidence in the record for discounting
Dr. Rawlins’ medical opinion. See id.; Morgan, 169 F.3d at 602.
Fleming argues that the ALJ erred in step three of the sequential evaluation
process by finding that Fleming’s mental impairments did not meet or equal a
Listing under 12.04, 12.06, or 12.08. The burden is on the claimant to provide
evidence that her impairments meet or equal a Listing at step three of the
sequential evaluation process. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir.
2005). Fleming based her argument that she meets a Listing entirely on the
properly rejected medical opinion of Dr. Rawlins. Therefore, Fleming failed to
meet her burden at step three of the sequential evaluation process. See id.Fleming claims that the ALJ erred by rejecting lay witness testimony
without giving specific and legitimate reasons germane to each witness. Lay
4
witness testimony is competent evidence which cannot be discounted without
comment. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). In order to
disregard the testimony of a lay witness, the ALJ is required to provide specific
reasons that are germane to each witness. Id. Contrary to Fleming’s argument, the
ALJ did not discount the lay witness’s testimony. The ALJ relied in part on that
testimony to find Fleming’s statements not credible. Therefore, the ALJ was not
required to provide specific and germane reasons for discounting the lay witness
testimony. See id.Fleming argues that the ALJ erred by failing to include relevant symptoms
in the Residual Functional Capacity assessment. The ALJ must consider all
relevant evidence when making a Residual Functional Capacity determination.
Robbins, 466 F.3d at 883. However, “[p]reparing a function-by-function analysis
for medical conditions or impairments that the ALJ found neither credible nor
supported by the record is unnecessary.” Bayliss, 427 F.3d at 1217. The
impairments Fleming claims were omitted from the assessment arose exclusively
from the properly discounted medical opinions of Drs. Rose and Rawlins and from
Fleming herself. It was unnecessary for the ALJ to include these impairments in
his Residual Functional Capacity assessment since he had already found them to be
neither credible nor supported by the record. See id.5
Finally, Fleming argues that the ALJ erred by posing an incomplete
hypothetical question to the Vocational Expert at step five of the sequential
evaluation process. The hypothetical question must be derived from the Residual
Functional Capacity assessment and “must set out all of the limitations and
restrictions of the particular claimant.” Valentine v. Comm’r Soc. Sec. Admin., 574
F.3d 685, 690 (9th Cir. 2009). The ALJ’s question to the Vocational Expert
incorporated the Residual Functional Capacity assessment and took into account all
of the credible limitations which were supported by evidence in the medical record.
See id. at 694.
AFFIRMED.
6