Melton v. Commissioner of Social Security Administration

FILED
NOT FOR PUBLICATION JUL 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KELLY G. MELTON, No. 10-35953
Plaintiff - Appellant, D.C. No. 3:09-cv-01000-BR
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted July 12, 2011 **
Portland, Oregon
Before: GOODWIN, PREGERSON, and M. SMITH, Circuit Judges.
Plaintiff-Appellant Kelly Melton appeals the district court’s order remanding
her claim for disability and supplemental social security benefits for further
administrative proceedings. The district court found that the Administrative Law
*
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).
Judge (ALJ) had committed three errors and remanded Melton’s case for further
administrative proceedings. Melton argues that the district court erred when it
upheld the part of the ALJ’s decision that gave little weight to the opinions of three
treating physicians regarding Melton’s limitations,1 and that the district court
should have remanded the case for an immediate award of benefits.
The parties are familiar with the facts, which we repeat here only to the
extent necessary to explain our decision. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm the district court’s decision to remand this case for
further proceedings.
The opinions of treating physicians are given greater weight than those of
non-treating physicians. Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th
Cir. 2010). Where there is conflicting medical evidence, the ALJ must state
“specific and legitimate reasons that are supported by substantial evidence” in the
record for rejecting a treating physician’s opinion. Ryan v. Comm’r of Soc. Sec.,
528 F.3d 1194, 1198 (9th Cir. 2008).
1
Melton did not “specifically and distinctly” argue in her opening brief that
the ALJ improperly rejected Dr. Anderson’s opinion. Thus, this issue is waived.
See Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003)
(noting that we “ordinarily will not consider matters on appeal that are not
specifically and distinctly argued in an appellant’s opening brief”).
2
Two of the ALJ’s reasons for discrediting Dr. Gibby-Smith’s opinion
regarding Melton’s “marked” limitations in a work environment are “specific and
legitimate reasons that are supported by substantial evidence” in the record. Id.
First, the ALJ correctly found that Gibby-Smith’s opinion was based almost
entirely on Melton’s self-reporting, which the ALJ found not fully credible, a
finding Melton does not challenge on appeal. See Tommasetti v. Astrue, 533 F.3d
1035, 1041 (9th Cir. 2008) (“An ALJ may reject a treating physician’s opinion if it
is based to a large extent on a claimant’s self-reports that have been properly
discounted as incredible.” (quotation marks and citation omitted) (emphasis
added)). Second, Dr. Gibby-Smith provided inconsistent answers on her
evaluation form. She gave Melton a GAF score of 55, which indicates “moderate”
difficulty in social, occupational, or school functioning. Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000). On the
same form, Dr. Gibby-Smith indicated Melton had “marked” limitations in daily
activities and in maintaining social functioning, meaning more than moderate, but
less than extreme. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00C; 20 C.F.R. §
404.1520a. The ALJ reasonably relied upon this internal inconsistency for
discrediting Dr. Gibby-Smith’s opinion. See Bayliss v. Barnhart, 427 F.3d 1211,
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1216 (9th Cir. 2005) (finding that an ALJ may cite internal inconsistencies in
evaluating a physician’s opinion).
The ALJ also correctly pointed to specific examples of contradictions in Dr.
Sultany’s own answers on an assessment form, and provided additional legitimate
reasons for questioning the reliability of Dr. Sultany’s responses on this form.
Accordingly, the ALJ properly rejected Dr. Sultany’s responses after stating
“specific and legitimate reasons that are supported by substantial evidence” in the
record. Ryan, 528 F.3d at 1198; see also Bayliss, 427 F.3d at 1216.
Finally, the ALJ properly discredited Dr. Simon’s answers on the “Medical
Opinion Regarding Ability to Work” form because the form was unsigned and
contradicted Dr. Simon’s own treatment records. See id.
Remand for further administrative proceedings is appropriate where there
are outstanding issues that must be resolved before a disability determination can
be made, and it is not clear from the record that the ALJ would be required to find
the claimant disabled if all the evidence were properly evaluated. See Vasquez v.
Astrue, 572 F.3d 586, 593 (9th Cir. 2009).
Here, there are outstanding issues the ALJ must consider on remand before a
finding of disability can be made, including (1) determining what weight to afford
the lay witness testimony; (2) incorporating in Melton’s residual functional
4
capacity her limitations in maintaining concentration, persistence, or pace; and (3)
posing an accurate hypothetical to the vocational expert. Because there are
“sufficient unanswered questions in the record,” the district court’s decision to
remand the case for further administrative proceedings was not an abuse of
discretion. Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000).
AFFIRMED.
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