Monique Williams v. Michael Astrue

FILED
NOT FOR PUBLICATION SEP 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MONIQUE M. WILLIAMS, No. 09-17627
Plaintiff - Appellant, D.C. No. 2:08-cv-01297-FJM
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted August 8, 2012
San Francisco, California
Before: CALLAHAN and WATFORD, Circuit Judges, and SINGLETON,
Senior District Judge.**
Monique M. Williams (“Williams”) appeals the district court’s order and
judgment affirming the Commissioner of the Social Security Administration’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
(“Commissioner’s”) decision denying Williams’ application for Supplemental
Security Income and Disability Insurance Benefits (benefits) under Titles II and
XVI of the Social Security Act.1 We review de novo a district court’s order
affirming the Commissioner’s denial of disability benefits to ensure that the
Commissioner’s decision (1) correctly applied the law and (2) is supported by
substantial evidence. Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d 685, 690
(9th Cir. 2009). We affirm.2
1. Williams claims that the Administrative Law Judge (“ALJ”) erred in
evaluating Dr. Johnson’s statements from a letter he wrote for Williams in 2005.
The ALJ stated that Dr. Johnson’s letter was (1) inconsistent, since it stated
Williams was disabled but also that her tests were in the normal range, (2) unclear,
and (3) unsupported by “objective data.” These are specific and legitimate reasons
supported by substantial evidence in the record for rejecting Dr. Johnson’s brief,
conclusory, and inconsistent statements in his letter from 2005. See Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The ALJ need not accept the
opinion of any physician, including a treating physician, if that opinion is brief,
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The parties are familiar with the facts, and we repeat them here only
as necessary to explain our decision.
2
We do not address the various arguments that Williams failed to raise
before the district court because they have been waived. See Sandgathe v. Chater,
108 F.3d 978, 980 (9th Cir. 1997) (per curiam).
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conclusory, and inadequately supported by clinical findings.”). Accordingly, the
ALJ did not err in evaluating Dr. Johnson’s 2005 letter.
2. Williams argues that the ALJ erred in evaluating Dr. Bryant’s medical
opinion. The ALJ noted that “there were no real issues” with Dr. Bryant’s report,
and Williams’ Residual Functional Capacity (RFC) is consistent with Dr. Bryant’s
ultimate medical conclusions concerning Williams’ ability to work.3 While the
ALJ might have been clearer, it appears the he adopted most of Dr. Bryant’s
medical conclusions. The ALJ did specifically disagree with two of Dr. Bryant’s
conclusions, however, including (1) that Williams had dementia, and (2) that
Williams’ test scores were below average because Dr. Bryant failed to discuss the
standard deviation in Williams’ test results.
In rejecting the dementia diagnosis, the ALJ relied on Dr. Clayton’s opinion
that Williams did not have dementia, as well as Dr. Bryant’s report which stated
that Williams’ cognitive tests showed improvement from 1997 to 2004. The ALJ
also relied on Dr. Bryant’s statements that Williams had “normal intelligence” with
only moderately impaired IQ scores. Moreover, Williams admitted that she
3
At the administrative hearing on August 30, 2007, the ALJ stated that
Dr. Bryant “does apparently a very thorough job it would seem . . . [s]o I am going
to give deference to her and her work,” further suggesting that the ALJ agreed with
Dr. Bryant’s medical opinion.
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thought Dr. Bryant’s diagnosis of dementia was wrong, and nothing in the record
suggests Williams has dementia. Thus, the ALJ gave specific and legitimate
reasons supported by substantial evidence in the record for rejecting Dr. Bryant’s
conclusion that Williams has dementia.
In rejecting Dr. Bryant’s conclusion that Williams scored “below average”
on several specific cognitive tests, the ALJ relied on only the medical opinion of
Dr. Clayton, a nonexamining physician. Under Lester v. Chater, 81 F.3d 821, 831
(9th Cir. 1995), “[t]he opinion of a nonexamining physician cannot by itself
constitute substantial evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician.” We are not certain that rule applies
when the nonexamining physician identifies an apparent mistake on a technical
matter for which an in-person examination would not provide any comparative
advantage. But even assuming the ALJ did err, we would find that because he
incorporated Dr. Bryant’s ultimate conclusions about Williams’ limitations and
ability to work into Williams’ RFC, any error did not affect the ALJ’s decision and
was therefore harmless. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
(noting that an ALJ’s error is harmless where it does not alter the “outcome of the
case”).
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3. Williams contends that the ALJ erred in silently disregarding Dr. Johnson’s
reports from 1994 and 1998 and Dr. Wicher’s report from 2000. All three of these
reports predate the date of Williams’ alleged onset of disability in 2001. We have
stated that “[m]edical opinions that predate the alleged onset of disability are of
limited relevance.” Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155,
1165 (9th Cir. 2008). However, it is clear from our precedent and the Social
Security Regulations that “[t]he ALJ must consider all medical opinion evidence.”
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Smolen v. Chater, 80
F.3d 1273, 1282 (9th Cir. 1996) (ALJ errs completely ignoring medical evidence);
20 C.F.R. § 404.1527(b) (“In determining whether you are disabled, we will
always consider the medical opinions in your case record together with the rest of
the relevant evidence we receive.”); 20 C.F.R. § 404.1527(c) (“Regardless of its
source, we will evaluate every medical opinion we receive.”). Thus, the ALJ erred
in failing to consider Dr. Johnson’s reports from 1994 and 1998 and Dr. Wicher’s
report from 2000.
We “may not reverse an ALJ’s decision on account of an error that is
harmless.” Molina, 674 F.3d at 1111. In Molina, we stated that “[a]lthough we
have expressed different formulations of the harmless error rule depending on the
facts of the case and the error at issue, we have adhered to the general principle that
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an ALJ’s error is harmless where it is inconsequential to the ultimate nondisability
determination.” Id. at 1115 (internal quotation marks omitted).
Here, the ALJ based his disability determination on the medical opinions of
Dr. Bryant, Dr. Patrick, and Dr. Clayton. Moreover, Williams’ RFC is consistent
with these opinions and other substantial evidence in the record. Accordingly, the
ALJ’s failure to comment on Dr. Johnson’s reports from 1994 and 1998 and Dr.
Wicher’s report from 2000 was harmless.
4. Williams contends that the ALJ erred in discrediting the lay-witness
evidence given by her father, David Williams, and her friend, Jon Tomasi. The
ALJ rejected their lay opinions (1) because neither was medically or vocationally
qualified, and (2) because their statements were unreliable since they generally
repeated Williams’ allegations. The ALJ also rejected some of David Williams’
written statements because they were unsupported by the medical evidence in the
record.
In Bruce, we held that an ALJ may not discredit lay witness testimony “as
not supported by medical evidence in the record.” Bruce v. Astrue, 557 F.3d 1113,
1116 (9th Cir. 2009). Additionally, in Bruce we found the ALJ’s reasons for
rejecting the claimant’s wife’s lay testimony inadequate where the ALJ discredited
her testimony because she was “not knowledgeable in the medical and/or
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vocational fields . . . .” See id. at 1116 & n.1 (“A lay person, Bruce’s wife, though
not a vocational or medical expert, was not disqualified from rendering an opinion
as to how her husband’s condition affects his ability to perform basic work
activities.”). Thus, the ALJ erred in discrediting the lay opinions of David
Williams and Jon Tomasi for not having a medical or vocational background and
also erred by rejecting some of David Williams’ written statements as not
supported by medical evidence in the record.
These errors were harmless in light of our decision in Valentine, where we
held that when an ALJ provides clear and convincing reasons for rejecting the
credibility of a claimant’s own subjective complaints, and the lay-witness
testimony is similar to the claimant’s complaints, it follows that the ALJ gives
“germane reasons for rejecting” the lay testimony. 574 F.3d at 694. The ALJ here
gave clear and convincing reasons supported by substantial evidence in the record
in finding Williams not entirely credible. In addition, the record shows that David
Williams’ and Jon Tomasi’s lay opinions generally repeated Williams’ allegations.
Since the ALJ rejected their opinions specifically because they generally repeated
Williams’ allegations, under Valentine the ALJ properly discredited their
testimony and the other improper reasons cited by the ALJ for discrediting their lay
opinions were harmless. Id. (noting that the ALJ’s rejection of the claimant’s
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spouse’s lay testimony because she was an interested party who never saw the
claimant at work was harmless since the lay testimony repeated the claimant’s
allegations, and the ALJ found that the claimant’s allegations were not credible).
AFFIRMED.
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