FILED
NOT FOR PUBLICATION MAR 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN KASSEBAUM, No. 10-35460
Plaintiff - Appellant, D.C. No. 6:08-cv-00433-HO
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted March 9, 2011**
Portland, Oregon
Before: D.W. NELSON, THOMAS, and GRABER, Circuit Judges.
Susan Kassebaum appeals from the district court’s order affirming the
decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying her claim for Social Security disability insurance under
*
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).
Title II of the Social Security Act. Reviewing the district court’s order de novo and
the Commissioner’s decision for substantial evidence, Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009), we affirm in part, reverse in part, and
remand. Because the parties are familiar with the factual and procedural history of
this case, we need not recount it here.
I
Substantial evidence supports the administrative law judge’s (“ALJ”)
determination that Kassebaum’s testimony was not fully credible. The ALJ noted
inconsistencies between Kassebaum’s account of her mental and physical
impairments and her activities. Inconsistencies in a claimant’s testimony, or
between a claimant’s testimony and other evidence in the record, can support an
ALJ’s decision not to credit fully that testimony. See Rollins v. Massanari, 261
F.3d 853, 857 (9th Cir. 2001). “[T]he ALJ’s interpretation of [Kassebaum’s]
testimony may not be the only reasonable one. But it is still a reasonable
interpretation and is supported by substantial evidence; thus, it is not our role to
second-guess it.” Id.
Where the ALJ rejected lay testimony, he gave “reasons germane to each
witness for doing so” and therefore did not err. Lewis v. Apfel, 236 F.3d 503, 511
(9th Cir. 2001).
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II
The ALJ did not err in rejecting certain opinions put forward by examining
psychologist Dr. Shelly Getzlaf. In fact, most of the ALJ’s determinations accord
with Dr. Getzlaf’s findings. Dr. Getzlaf’s evaluation revealed that certain of
Kassebaum’s test results were “not considered in the impaired range” and
otherwise that she had only a fair ability to interact with the general public and to
deal with detailed instructions. The ALJ’s ultimate conclusion was that
Kassebaum was limited to performing simple, routine work, requiring limited
interaction with the public. That conclusion is not directly at odds with most
aspects of Dr. Getzlaf’s evaluation.
The Commissioner concedes, and we agree, that it was improper for the ALJ
to reject certain of Dr. Getzlaf’s findings because the ALJ did not recognize the
tests Dr. Getzlaf used for ADHD. However, substantial evidence supported the
ALJ’s finding that Kassebaum’s ADHD was not severe—for example, the fact that
Dr. Getzlaf only noted that she probably had ADHD.
Finally, much of Dr. Getzlaf’s report is based on Kassebaum’s own
representations. To the extent that Dr. Getzlaf’s “opinion of disability [is]
‘premised . . . upon the [Kassebaum’s] own accounts of [her] symptoms and
limitations,’” it may be “disregarded where those complaints have been ‘properly
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discounted.’” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir.
1999) (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)); see also Bayliss
v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
III
Substantial evidence supports the ALJ’s findings regarding Kassebaum’s
shoulder impairment and COPD. The ALJ properly took Kassebaum’s shoulder
impairment into account in finding that she was capable of working as a Laundry
Worker or Kitchen Helper. Specifically, the ALJ elicited testimony from the
vocational expert confirming that such jobs do not require “more than occasional
overhead reaching . . . [w]ith the right dominant arm.” And Kassebaum did not
cite any evidence that her COPD significantly impaired her ability to work. In fact,
Dr. Colistro stated that deficiencies in concentration and persistence, “by
[Kassebaum’s] telling, were the primary reasons she ceased driving.”
IV
Substantial evidence supports the ALJ’s conclusion at Step Two that
Kassebaum’s sleep apnea, carpal tunnel syndrome, and back pain syndrome were
not severe impairments. At Step Two, an impairment is severe if it significantly
limits an individual’s ability to perform basic work activities. 20 C.F.R. §
404.1521(a). Regarding Kassebaum’s sleep apnea, the ALJ’s finding that it only
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occurred when she slept on her back is sufficient for a determination that it does
not significantly limit her ability to perform basic work tasks. As to her back pain,
the only “objective medical evidence” Kassebaum cites is an x-ray showing an
“old” thoracic fracture. Otherwise, her allegations regard “symptoms” and not
“signs.” Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (citing SSR
96-4p, 1996 WL 374187 (July 2, 1996)). Finally, as to her carpal tunnel syndrome,
substantial, medical evidence in the record shows that the surgery to remove
ganglions on Kassebaum’s wrists was successful, at least as much as necessary to
ensure that the ailment was not so severe as to interfere significantly with
Kassebaum’s ability to work.
V
Substantial evidence does not support the ALJ’s rejection of opinions put
forward by examining psychologist Dr. Frank Colistro and by treating physician
Dr. Sadie Arrington. The ALJ stated two reasons for rejecting Dr. Colistro’s
opinion; neither are “clear and convincing.” Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995) (internal quotation marks omitted). First, it was Dr. Jendritza’s
concurrent diagnosis that Kassebaum’s depression was in “full remission” that is
out-of-step with the overwhelming medical evidence in the record. Furthermore,
that diagnosis was seemingly made based only on Kassebaum’s own
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representations, and regardless Dr. Jendritza later amended it to state “partial
remission.” Second, the ALJ’s reliance on Dr. Colistro’s description of
Kassebaum’s avid engagement in Alcoholics Anonymous is misplaced where Dr.
Colistro’s report also stated that, “other than attending AA meetings and other
functions, [Kassebaum] is a virtual social isolate. She experiences moderate
restrictions of daily living in that, particularly when her panic disorder is most
intense, the only safe place she perceives is her home.”
The ALJ’s reasons for rejecting the extensive opinions of Dr. Arrington are
equally unpersuasive. “The weight accorded a treating physician’s opinion
depends on the length of the treatment relationship, the frequency of visits, and the
nature and extent of treatment received.” Batson v. Comm’r of Soc. Sec. Admin.,
359 F.3d 1190, 1199 (9th Cir. 2004) (Graber, J., dissenting) (citing 20 C.F.R.
§ 404.1527(d)(2)(i), (ii)). “‘A treating physician’s medical opinion as to the nature
and severity of an individual’s impairment must be given controlling weight if that
opinion is well-supported and not inconsistent with the other substantial evidence
in the case record.’” Id. (Graber, J., dissenting) (quoting Edlund v. Massanari, 253
F.3d 1152, 1157 (9th Cir. 2001)). The ALJ did not provide “clear and convincing”
reasons for rejecting the reports of Dr. Arrington, Kassebaum’s treating physician
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since June 2000 who provided sustained and substantial accounts of Kassebaum’s
mental illness.
The ALJ first questioned Dr. Arrington’s findings because Dr. Arrington
noted that Kassebaum “had not been diagnosed with depression and anxiety
disorder ‘until April 2004,’ almost 7-months after her alleged disability onset
date.” However, that isolated statement is insignificant in the context of the
extensive record, and was perhaps made in error: Dr. Arrington’s case notes report
that Kassebaum sought care for depression in October 2003, and her notes from an
October 22, 2003, visit—less than a month after Kassebaum’s alleged onset
date—state, “Diagnosis: DEPRESSION.”
Second, the ALJ rejected Dr. Arrington’s findings because, in 2004 after
Kassebaum had not been working for “almost a year,” Dr. Arrington noted that
Kassebaum’s “‘very severe’ depression and anxiety ‘limits her ability to
concentrate on the functions of her job.’” That Dr. Arrington twice spoke of
Kassebaum as having a job a year after Kassebaum went on disability is not a
proper basis for refuting all of Dr. Arrington’s opinions. Elsewhere, Dr. Arrington
described Kassebaum’s condition more accurately: “HER DEPRESSION AND
ANXIETY ARE STILL HER LIMITING FACTORS AND NOT ABLE TO
RETURN TO WORK. . . . Diagnosis: DEPRESSION 311, ANXIETY 300.00.”
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Finally, the ALJ rejected Dr. Arrington’s opinions because Dr. Arrington
once wrote Kassebaum’s insurer asking it to cover breast enhancement surgery, to
aid Kassebaum’s self-image. This is not a relevant, much less a “clear and
convincing,” reason for rejecting the medical opinions of Kassebaum’s long-time
treating physician. Furthermore, contrary to the Commissioner’s representations,
Dr. Arrington’s findings were not “brief, conclusory, or unsupported by the record
as a whole.” Rather, they constitute a significant percentage of the record, and
consistently speak to Kassebaum’s significant mental illnesses and their impairing
effects. The ALJ’s decision to discard Dr. Arrington’s diagnoses is not supported
by substantial evidence.
VI
Because the ALJ did not properly credit substantial evidence of
Kassebaum’s mental impairments, he did not meet his burden at Step 5 of showing
that Kassebaum was able to perform other work existing in the national economy.
This matter is remanded to the district court, with instructions to remand to the
agency for a proper determination, based on the extensive medical evidence in the
record, including that put forward by Drs. Colistro and Arrington, of how
Kassebaum’s mental health affects her ability to work.
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AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
COSTS ON APPEAL AWARDED TO THE PLAINTIFF-APPELLANT.
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