Heli De Botton v. Carolyn Colvin

+Corrected 1/5/17 FILED
NOT FOR PUBLICATION
JAN 04 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HELI DE BOTTON, No. 15-35599
Plaintiff-Appellant, D.C. No. 2:13-cv-01916-RAJ
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted December 30, 2016**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.+
Heli De Botton appeals pro se the district court’s judgment affirming the
Commissioner of Social Security’s denial of her applications for disability
*
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).
insurance benefits and supplemental security income benefits under Titles II and
XVI of the Social Security Act. De Botton alleged disability due to degenerative
disc disease, arm pain, affective disorder, anxiety disorder, and personality
disorder. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), and we affirm.
First, De Botton contends that the administrative law judge (“ALJ”) erred by
failing to consider that De Botton lost her last job because of her medical treatment
schedule. However, the ALJ’s decision demonstrates that the ALJ did consider
this evidence. Second, De Botton contends that the agency erred by failing to
consider that her health is continuing to decline. However, the record under review
is the record before the Commissioner at the time of the final decision. See 42
U.S.C. § 405(g). Moreover, the agency properly informed De Botton that she
could file another application if her condition declined.
Although De Botton did not raise any additional issues in her pro se brief,
the government’s answering brief addressed issues that were raised by De Botton’s
counsel before the district court, and we briefly consider them. See Koerner v.
Grigas, 328 F.3d 1039, 1048-49 (9th Cir. 2003) (this court has discretion to
consider issues not raised by the appellant when they are raised in the appellee’s
brief).
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In assessing De Botton’s physical impairments, the ALJ reasonably
accorded significant weight to the opinions of state agency consultants Dr. Robert
Fernandez-Fu and Dr. Alnoor Virji, and little weight to the opinions of treating
physician Dr. Abigail Gross and Heather Pullen, P.A. The ALJ reasonably found
that Dr. Gross’s disability conclusion was inadequately supported by clinical
findings, see Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); rejected Dr.
Gross’s opinion as inconsistent with De Botton’s admitted daily activities, see
Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001); and rejected Pullen’s
opinion as inconsistent with her own objective findings and with De Botton’s daily
activities, see id.
In assessing De Botton’s mental impairments, the ALJ reasonably accorded
significant weight to the opinions of state agency consultants Dr. Steven Haney
and Dr. Jan L. Lewis, great weight to the opinion of examining physician Dr.
Makiko Guji, little weight to the opinion of examining physician Dr. Wayne Dees,
and only some weight to the opinion of examining psychologist Dr. Michael
O’Leary. The ALJ properly noted that Dr. Dees’s extreme limitations assessment
was inconsistent with his own findings, see Bayliss, 427 F.3d at 1216; Dr. Dees’s
opinion relied on De Botton’s self-serving statements, see Tommasetti v. Astrue,
533 F.3d 1035, 1041 (9th Cir. 2008) (ALJ may reject a physicians’ opinion that is
3 15-35599
largely based on a claimant’s incredible self-reports); and Dr. O’Leary’s opinion
was made for the purpose of evaluating parental fitness, not for making a disability
evaluation, see 20 C.F.R. §§ 404.1504, 416.904 (disability determinations made by
other agencies are not binding on the Commissioner).
The remaining issues also are without merit. The ALJ reasonably
considered the medical evidence provided by “other source” opinions and provided
germane reasons for rejecting the evidence. See 20 C.F.R. §§ 404.1513, 416.913
(ALJ need only provide germane reasons for rejecting “other source” opinions of
counselors, social workers, therapists and nurse practitioners); Molina, 674 F.3d at
1111-12 (inconsistency with the objective evidence is a germane reason for
rejecting the assessment). Similarly, the ALJ reasonably evaluated the lay witness
statements and provided germane reasons for discrediting the testimony. See id.
Finally, because the ALJ posed a hypothetical question to the vocational expert
that contained all of De Botton’s credible limitations, the vocational expert’s
testimony was substantial evidence for the ALJ’s findings. See Batson v. Comm’r
of the Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ need only
include credible limitations in the residual functional assessment and in the
hypothetical posed to the vocational expert).
AFFIRMED.
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