Bailey v. Barnhart

MEMORANDUM ^*

Petitioner Jessie Bailey appeals the district court’s affirmance of the Commissioner of Social Security’s denial of her application for Supplemental Security Income payments. Because we conclude that the Administrative Law Judge (ALJ) applied the correct legal standards and because his decision to deny Bailey benefits is supported by substantial evidence, we affirm the judgment. As the parties are familiar with the facts, procedural history, and arguments, we cite them only as necessary.

Bailey asserts that the ALJ erred when he: 1) rejected the medical opinion of examining physician Dr. Truhn, 2) rejected the testimony of treating therapist Kristin Bezdek, 3) found Bailey’s testimony to be not credible, and 4) posed a defective hypothetical to the vocational expert.

Dr. Truhn examined Bailey on a single occasion in May 2000. Almost a year later in April 2001, though he did not examine Bailey again, Dr. Truhn completed a Medical Source Statement concluding that Bailey was “markedly limited” in her ability to carry out simple one or two step tasks, and in her ability to maintain attention and concentration for extended periods. Although the ALJ agreed that Bailey suffered from “severe” mental impairments, he declined to adopt these portions of Dr. Truhn’s diagnosis because it contradicted the reports of Bailey’s treating source providers.

It is well-established that an ALJ may reject an examining physician’s opinion in favor of a treating physician’s whenever inconsistencies and contradictions are present. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995). In contrast to Dr. Truhn’s single examination of Bailey, Dr. Dean treated Bailey for nearly a year and examined her on at least four separate occasions. Throughout his treatment of Bailey, Dr. Dean never reported the severe limitations in concentration and basic functioning that Dr. Truhn diagnosed. Not only does Dr. Truhn’s diagnosis contradict that of Dr. Dean’s but it also contradicts the reports of Dr. Ballew and Dr. Hennings, who reviewed Bailey’s complete record in March and June of 2000, and determined that she was not markedly limited in her ability to focus, or in her ability to carry out short simple tasks.

The record thus reveals that Dr. Truhn’s diagnosis is inconsistent with the reports of three other physicians — including that of a treating physician. Moreover, Dr. Truhn’s diagnosis is neither entitled to the most weight under our case law, nor is it the most recent of the medical reports. Under these circumstances, we hold that the ALJ was entitled to reject Dr. Truhn’s diagnosis in favor of the reports provided by other physicians. See Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992) (holding that in evaluating the evidence, we must review the “record as a whole” and “if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ”); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989) (citations omitted) (“Where medical reports are inconclusive ... resolution of conflicts in the testimony are functions solely of the [Commissioner].”) (internal quotations omitted).

The ALJ also rejected Dr. Truhn’s diagnosis because it was contradicted by Bailey’s daily activities which included providing housekeeping and childcare services in exchange for room and board. The dissent points out that Bailey’s duties cannot be described as “full-fledged child-care responsibilities.” This court’s decision in Morgan v. Apfel, 169 F.3d 595 (9th Cir. 1999), however, upheld a denial of benefits based on a claimant’s comparable level of activity. In Morgan, we stated that an “ability to fix meals, do laundry, work in the yard, and occasionally care for his friend’s child served as evidence of [claimant’s] ability to work.” Id. (emphasis added). Regardless of how we view the quality of the childcare Bailey rendered, the ALJ was entitled to find that her ability to feed and care for children contradicted Dr. Truhn’s assessment that she was “markedly limited” in her ability to perform even one step tasks. For the foregoing reasons, we conclude that the ALJ’s rejection of Dr. Truhn’s diagnosis was not in error.

An ALJ can reject the opinion of a lay witness, such as therapist Kristin Bezdek, for reasons “germane” to the witness. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.2001). In so far as Bezdek opined that Bailey was incapable of working due to her anxiety and bipolar disorders, Bezdek’s opinion was inconsistent with that of other medical professionals. Dr. Dean, Dr. Ballew, and Dr. Hennings never reported that Bailey was so impaired by her anxiety that she would be unable to work; in fact, Dr. Dean noted, without reservation, that Bailey was attempting to find employment.¹ Thus, the ALJ also did not err in rejecting Bezdek’s opinion.

Our case law allows an ALJ to reject a claimant’s testimony regarding the severity of her symptoms if the claimant has made prior inconsistent statements to medical sources concerning her symptoms. See Smolen v. Chafer, 80 F.3d 1273, 1284 (9th Cir.1996). The ALJ correctly noted that Bailey had previously given Dr. Truhn “inaccurate and misleading” information. For instance, when describing the severity of her manic episodes, Bailey told Dr. Truhn that her behavior was once so disrupted that she went 27 days without sleep or food. Moreover, the ALJ properly rejected Bailey’s testimony because her claim that she could not perform even simple tasks was contradicted by the fact that, at the time of her testimony, Bailey was taking care of her daughter’s children and of the house in exchange for room and board. See id.; Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir.1999).

Because the ALJ was not obligated to accept either Dr. Truhn’s opinion, or Bailey’s testimony, his hypothetical to the vocational expert did set out all the relevant limitations and was thus, not in error. See Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir.1989).

The district court properly affirmed the ALJ’s denial of benefits.

AFFIRMED.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . The dissent states that this report does not provide evidence that Bailey would have been able to sustain employment because she lasted less than a month at her "most recent job” due to a manic episode. Citing Bailey’s experience at Albertson's Deli is unconvincing, however. First, the only evidence that Bailey actually suffered a manic episode is her own testimony, and for reasons discussed below, the ALJ was entitled to discredit Bailey’s testimony. Second, this "recent job” occurred in either 1994 or 1995, five years prior to Dr. Dean's report and thus, is about as relevant to our current inquiry as Bailey's four-year tenure as a gas station employee in the late 80’s and early 90’s.