Black v. Commissioner of Social Security Administration

FILED
NOT FOR PUBLICATION MAY 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JUDITH LYNNE BLACK, No. 10-15055
Plaintiff - Appellant, D.C. No. 5:08-cv-00792-JW
v.
MEMORANDUM *
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
James Ware, Chief District Judge, Presiding
Argued and Submitted April 14, 2011
San Francisco, California
Before: THOMAS and RAWLINSON, Circuit Judges, and CARNEY, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Cormac J. Carney, U.S. District Judge for the Central
District of California, sitting by designation.
Judith Lynne Black appeals the district court’s grant of summary judgment
in favor of the Social Security Commissioner in her action challenging the denial
of her application for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401–434 (2006). We review the district court’s grant of
summary judgment de novo. Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219,
1222 (9th Cir. 2009). However, the scope of our review of the Commissioner’s
denial of disability benefits is limited. “We may set aside a denial of benefits only
if the Commissioner’s findings are not supported by substantial evidence or based
on legal error.” Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.
2006)). Where the evidence is susceptible to more than one rational interpretation,
we must uphold the Commissioner’s decision. See id. Black contends that the
Administrative Law Judge (“ALJ”) erred by improperly discounting the opinion of
her treating physician, improperly discounting her statements regarding the
severity of her pain and depression symptoms, and by finding that the
Commissioner carried his burden to show that Black can perform other jobs that
exist in significant numbers in the national economy. We affirm.
The ALJ provided specific and legitimate reasons supported by substantial
evidence in the record for discounting the contradicted March 2006 opinion of Dr.
Jonathan Green, Black’s treating physician. See Lester v. Chater, 81 F.3d 821,
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830–31 (9th Cir. 1995). Dr. Green’s opinion was not supported by objective
medical findings, and Dr. Green appeared to have relied heavily on Ms. Black’s
subjective complaints about her low back pain, which the ALJ found were only
partly credible. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th
Cir. 2004) (affirming ALJ’s decision to discount opinions of treating physicians
because it was in the form of a checklist, did not have supportive objective
evidence, was contradicted by other statements and assessments of claimant’s
medical condition, and was based on claimant’s subjective descriptions of pain).
The ALJ also properly discounted Dr. Green’s opinion because it was inconsistent
with Dr. Gable’s independent findings and opinion about Black’s residual
functional capacity, as well as the opinions of two non-examining physicians who
based their opinions on Dr. Gable’s clinical findings. See Thomas v. Barnhart, 278
F.3d 947, 957 (9th Cir. 2002) (“The opinions of non-treating or non-examining
physicians may also serve as substantial evidence when the opinions are consistent
with independent clinical findings or other evidence in the record.”)
Neither did the ALJ err by finding that some of Black’s statements regarding
the severity of her pain and depression symptoms were not entirely credible. The
ALJ must give specific, clear and convincing reasons supported by substantial
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evidence for finding that Black’s subjective testimony was not credible. See
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
After describing in some detail Black’s medical history and the findings in
the medical record, the ALJ found that Black’s testimony regarding the severity of
her impairments was inconsistent with the objective medical findings in the record
and the level of treatment that Black received. “While subjective pain testimony
cannot be rejected on the sole ground that it is not fully corroborated by objective
medical evidence, the medical evidence is still a relevant factor in determining the
severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261
F.3d 853, 857 (9th Cir. 2001). The inconsistencies between Black’s medical and
treatment history and the severity of symptoms that she described are legally
sufficient to support a negative credibility determination. See Batson, 359 F.3d at
1196; Smolen, 80 F.3d at 1284 n.8.
The Commissioner also met his burden to show that Black could perform
other jobs that exist in significant numbers in the national economy. The ALJ and
the Appeals Council permissibly relied on both testimony from a vocational expert
and occupations coded in the Dictionary of Occupational Titles. Although the ALJ
erred by failing to ask the vocational expert whether her testimony conflicted with
the Dictionary of Occupational Titles, that error was harmless because there was no
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actual conflict. See Massachi v. Astrue, 486 F.3d 1149, 1153, 1154 n.19 (9th Cir.
2007). The occupations that the vocational expert provided in her testimony match
nursing occupations that are coded as light work in the Dictionary of Occupational
Titles, and the Appeals Council explicitly added the Dictionary of Occupational
Titles Codes for those occupations in its review of the ALJ’s decision.
AFFIRMED.
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