Helen Butler v. Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 04 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HELEN M. BUTLER, No. 13-16213
Plaintiff - Appellant, D.C. No. 1:12-cv-00069-SMS
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Sandra M. Snyder, Magistrate Judge, Presiding**
Submitted December 2, 2014***
Before: GOULD, BERZON, and BEA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
** *
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Helen Butler appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. Butler contends that the administrative law judge (“ALJ”)
erred by failing to provide a legally sufficient rationale for rejecting testifying non-
examining medical expert Dr. Gurvey’s residual functional capacity (“RFC”)
assessment that she could stand and walk only four to six hours out of an eight
hour workday. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
We review the district court’s order de novo. Berry v. Astrue, 622 F.3d
1228, 1231 (9th Cir. 2010). We must affirm if substantial evidence supports the
ALJ’s findings and the ALJ applied the correct legal standards. Moncada v.
Chater, 60 F.3d 521, 525 (9th Cir. 1995). The ALJ need not accept the opinion of
a doctor if that opinion is inadequately supported by clinical findings, Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005), and the ALJ must resolve any
conflicts in the medical evidence, Thomas v. Barnhart, 278 F.3d 947, 956–57 (9th
Cir. 2002).
The ALJ properly rejected Dr. Gurvey’s four to six hour stand and walk
RFC assessment because it is not supported by objective evidence and because it
contradicts the six hour stand and walk RFC assessment made by state agency
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consultant Dr. Khong. First, Dr. Gurvey’s assessment was based on his
assumption that Butler was fully credible about her subjective complaints of pain.
But the ALJ found Butler’s complaints about the debilitating effects of her pain not
credible and gave specific, clear and convincing reasons for his negative credibility
finding. Butler does not challenge the ALJ’s credibility finding because she did
not raise this issue in her opening brief. See Avenetti v. Barnhart, 456 F.3d 1122,
1125 (9th Cir. 2006) (stating that issues not raised in the briefs are deemed
waived). Dr. Gurvey conceded that some of the records were “just not supported
by any of the medical data” or were based on Butler’s subjective complaints of
pain.
Also, Dr. Gurvey’s assessment contradicted the opinion of non-examining
state agency physician Dr. Anne Khong, who concluded that Butler had the
residual functional capacity to stand or walk six to eight hours out of an eight-hour
workday. Dr. Khong’s conclusion was based on her review of the treatment
record, progress notes dating back to 2006, and the independent examination
findings and report of consultative examiner Dr. Bhangoo. The six hour stand and
walk RFC assessment was also consistent with the opinions of other state agency
consultants, including examining physician Dr. Sarupinder Bhangoo, who opined
that Butler could stand or walk six to eight hours out of an eight hour day.
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The ALJ thoroughly and reasonably considered the medical evidence in the
record, and the ALJ adequately explained why he was accepting the standing and
walking limitation of the examining and non-examining state agency consultants
over the opinion of medical expert Dr. Gurvey. Based on the six hour standing and
walking limitation, the vocational expert opined that Butler could perform her past
relevant work of cashier/checker. Substantial evidence supports the ALJ’s
determination that Butler is not disabled.
AFFIRMED.
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