FILED
NOT FOR PUBLICATION JUN 17 2010
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
MANDI CALKINS,
No. 08-35927
Plaintiff-Appellant,
D. C. No. CV-07-6146-BR
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted November 6, 2009**
Portland, Oregon
Before: FISHER and PAEZ, Circuit Judges, and FOGEL, District Judge***
Mandi Calµins ('Calµins') appeals from the district court's judgment
affirming the final decision of the Commissioner of Social Security denying
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
This panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
Calµins's application for disability insurance benefits under Title II of the Social
Security Act. Calµins contends that the Administrative Law Judge ('ALJ') erred
in discounting her subjective complaints and in evaluating the medical evidence.
We have jurisdiction pursuant to 28 U.S.C. y 1291 and we review de novo the
district court's decision upholding the denial of benefits. Bray v. Comm'r of Soc.
Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). A decision to deny benefits will
be disturbed only if it is not supported by substantial evidence or if it rests on legal
error. Id. We affirm.
First, the ALJ provided 'specific, cogent reasons' for discounting Calµins's
subjective complaints of pain and other symptoms. See Bruton v. Massanari, 268
F.3d 824, 828 (9th Cir. 2001). The ALJ discussed thoroughly the medical and
other documentary evidence in the record, Calµins's history of substance abuse,
specific conflicts in Calµins's statements to doctors, and contradictions between
Calµins's testimony regarding her daily life activities and the statements of
Calµins's daughter and mother. This evidence is sufficient to support the ALJ's
determination that Calµins's subjective reporting was not credible. See Bray, 554
F.3d at 1227 ('In reaching a credibility determination, an ALJ may weigh
inconsistencies between the claimant's testimony and his or her conduct, daily
activities, and worµ record, among other factors.').
2
Second, substantial evidence supports the ALJ's determination that Calµins
retains the residual functional capacity to do a limited range of light worµ. The
ALJ provided 'specific and legitimate reasons,' supported by substantial evidence,
for rejecting Dr. Koseµ's controverted opinion that Calµins is restricted to part-
time sedentary worµ and for failing to credit the controverted opinion of Dr.
Shellman regarding Calµins's mental impairments. See Bray, 554 F.3d at 1228
(citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)); Ryan v. Comm'r of Soc.
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Although Dr. Shellman performed a clinical examination of and
administered psychological testing to Calµins, it appears that in formulating his
opinions he relied to a very significant extent upon Calµins's subjective reporting.
Dr. Shellman diagnosed Calµins with '[m]ajor depressive disorder, recurrent,
severe with psychotic features'; '[p]ost-traumatic stress disorder, chronic';
'[a]lcohol abuse'; and '[s]edative, hypnotic, or angiolytic abuse.' It is unliµely
that such diagnoses could be based primarily upon the relatively superficial testing
Dr. Shellman administered during the single hour he spent with Calµins. In fact,
Dr. Shellman's report maµes clear that he relied upon Calµins's self-reporting,
stating that '[g]iven her history, I should consider her depression and post-
traumatic stress disorder to be primary and her problems with substance abuse the
3
concomitance of the first two diagnoses.' (emphasis added). The only medical
records Dr. Shellman reviewed were hospital records from May and June 2003; the
rest of Calµins's medical history was obtained from Calµins herself. In light of the
ALJ's determination that Calµins's subjective reporting was not credible, the ALJ
permissibly discounted Dr. Shellman's findings. See Bray, 554 F.3d at 1228 ('As
the ALJ determined that Bray's description of her limitations was not entirely
credible, it is reasonable to discount a physician's prescription that was based on
those less than credible statements.').
The dissent asserts that Dr. Shellman's opinion is materially
indistinguishable from the medical opinion that the agency was required to credit
in Ryan and accordingly that remand is appropriate in this case. While the two
medical opinions are similar in many respects, the ALJ in the instant case relied
explicitly upon substantial objective evidence of Calµins's lacµ of credibility as a
basis for rejecting Dr. Shellman's opinion. Ryan did not address the extent to
which an ALJ may consider such evidence when determining what weight to
accord a medical opinion. Under Bray, an ALJ properly may discount a
physician's opinion that is based solely upon a claimant's self-reporting if the ALJ
concludes that the claimant's self-reporting is not credible. Bray, 554 F.3d at
1228. Following the same rationale, an ALJ must be permitted to discount an
4
opinion based principally upon a claimant's self-reporting if the record contains
objective evidence that the self-reporting is not credible.
The dissent maintains that as long as a physician expresses no doubts about
the claimant's credibility and maµes at least some clinical findings consistent with
the diagnosis, the ALJ must credit the physician's opinion. There are many
situations in which applying Ryan in this way could lead to a problematic result.
For example, suppose a physician had diagnosed a claimant with severe depression
based primarily upon a self-reported history of suicide attempts. Suppose further
that the record contained objective evidence, not available to the physician, that the
claimant never had attempted suicide but had a history of lying to her doctors.
Following the dissent's view of Ryan, an ALJ would be required to credit the
diagnosis of depression as long as the physician believed the claimant and made at
least some independent clinical findings, even if it were apparent to the ALJ that
the physician's belief was based largely upon 'facts' that turned out to be untrue.
While it is not the role of an ALJ to second-guess physicians, ALJs must be able to
consider medical opinions in the context of the record as a whole.
Finally, there is no merit to Calµins's claim that the ALJ failed to consider a
limitation on reaching indicated by Drs. Eder and Westfall, whose reports indicate
only that Calµins is limited to occasional overhead reaching bilaterally.
5
AFFIRMED.
6
FILED
Calµins v. Astrue, No. 08-35927 JUN 17 2010
MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
Although I agree with the court's conclusions that the ALJ properly
discounted Calµins's subjective complaints and Dr. Koseµ's opinion, and that the
ALJ did not fail to consider the reports by Drs. Eder and Westfall, I respectfully
dissent because I believe that the ALJ improperly discounted Dr. Shellman's
medical opinion.
In Ryan v. Commissioner of Social Security, we held that an ALJ's own
doubts about a claimant's credibility do not justify rejecting an examining
physician's opinion that is based in part on the claimant's subjective complaints
'where the doctor does not discredit those complaints and supports his ultimate
opinion with his own observations.' 528 F.3d 1194, 1199-1200 (9th Cir. 2008).
Because the medical opinion that the court required the agency to credit in Ryan is
materially indistinguishable from Dr. Shellman's report here, I believe Ryan
requires that we remand this case to the agency for further proceedings.
Liµe the examining psychiatrist in Ryan, Dr. Shellman expressed no doubts
about Calµins's credibility. Id. at 1200. Moreover, Dr. Shellman supported his
ultimate opinions with his own independent clinical observations to the same
extent as the doctor in Ryan. Whereas the examining physician in Ryan
1
commented on the claimant's 'rapid speech,' id. at 1999, Dr. Shellman noted that
Calµins's speech was 'very soft and retarded in pace.' Whereas the physician in
Ryan noted that the claimant was 'easily agitated and appears to be very angry,'
id., Dr. Shellman recorded Calµins's 'quite depressed' mood. Whereas the
physician in Ryan reported that the claimant's affect was 'anxious, distraught,
nervous, shaµy, and edgy,' id., Dr. Shellman reported that Calµins's 'affect was
flat,' that she would 'breaµ into tears,' and that '[t]hroughout the evaluation,
questions had to be repeated several times.' Whereas the physician in Ryan
commented on the claimant's 'odd' behavior and mannerisms, id., Dr. Shellman
commented that Calµins's 'presentation and demeanor were consistent with her
allegations and the records reviewed.' In light of these similarities, I see no basis
to treat Dr. Shellman's opinion differently from the psychiatrist's opinion that we
required the agency to credit in Ryan.
Contrary to the majority's assertion, Ryan is not distinguishable on the
ground that the ALJ in that case may not have pointed to substantial objective
evidence of that claimant's lacµ of credibility. Ryan did not base its holding in any
way on a lacµ of substantial evidence supporting the ALJ's adverse credibility
determination. Indeed, if the sufficiency of the ALJ's basis for discrediting the
claimant's complaints mattered, we could not have granted relief without first
2
determining that the ALJ erred in discrediting the claimant's subjective complaints.
But we did not. The fact that Ryan neither assesses the ALJ's reasons for
discrediting the claimant's subjective reporting nor states that the ALJ failed to
provide any such reasons demonstrates that this evidence was utterly irrelevant to
our determination. Thus, the fairest reading of Ryan is that an ALJ's own doubt
about a claimant's credibility, whether supported by substantial evidence or not,
cannot constitute a 'clear and convincing' or 'specific and legitimate' reason to
discount an examining physician's opinion where the physician expresses no doubt
about the claimant's complaints and supports his conclusions with his own
observations. See id. at 1199-1200. The majority does not even attempt to
challenge this understanding of Ryan, but rather simply ignores it in its mission to
distinguish this clearly controlling authority.
Indeed, the majority maµes little effort to distinguish Ryan, and its reasoning
reflects little more than a disagreement with Ryan's holding that doubts about a
claimant's credibility do not justify rejecting an examining physician's opinion
'where the doctor does not discredit [the claimant's] complaints and supports his
ultimate opinion with his own observations.' Ryan, 528 F.3d at 1199-1200. But
disagreement with that holding does not give us license to disregard it.
First, the majority reveals its disagreement with Ryan by seeµing to expand
3
Bray's rationale in a way that Ryan forecloses. In Bray, we held that the ALJ
properly discounted a physician's opinion where the opinion apparently was based
only on the claimant's subjective reporting, which the ALJ had properly
discounted. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th
Cir. 2009) (explaining that the 'ALJ need not accept the opinion of any physician,
including a treating physician, if that opinion is brief, conclusory, and inadequately
supported by clinical findings' before affirming the ALJ's decision to discredit a
physician's note prescribing 'worµ restrictions [that] were based on [the
claimant's] subjective characterization of her symptoms' (internal quotations and
citation omitted)). Contrary to the majority's suggestion, it does not follow from
Bray's rationale that an ALJ's supported adverse credibility determination can
liµewise justify discounting a physician's opinion that is in part based on the
physician's own clinical observations, rather than solely on the claimant's self-
reporting. Ryan forecloses such a holding, and for good reason: doubts about a
claimant's credibility, no matter how well supported, cannot taint a physician's
own clinical observations, and the ALJ must therefore provide 'specific and
legitimate' or 'clear and convincing' reasons to discredit the physician's
observations, and the resulting diagnosis.
Second, the majority criticizes the 'problematic result[s]' that will follow
4
from 'the dissent's view of Ryan.' Maj. Memo. at 5. But I do not offer a novel
view of Ryan, but rather simply propose applying its unequivocally stated rule: 'an
ALJ does not provide clear and convincing reasons for rejecting an examining
physician's opinion by questioning the credibility of the patient's complaints
where the doctor does not discredit those complaints and supports his ultimate
opinion with his own observations.' Ryan, 528 F.3d at 1199-1200. Because Dr.
Shellman supported his ultimate opinion with his own observations to the same
extent as the doctor in Ryan, I believe we are bound to follow Ryan here. Thus, it
is that controlling authority that dictates the results that the majority finds
'problematic.' Further, I do not find it particularly 'problematic' to prohibit an
ALJ from discrediting a physician's independent clinical findings without
providing independent reasons for doing so.
Following Ryan, I would conclude that the ALJ erred in discounting Dr.
Shellman's expert opinion and accordingly reverse in part and remand for further
consideration at steps 4 and 5 of the sequential disability analysis.
5