FILED
NOT FOR PUBLICATION APR 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARET A. FISHER, No. 10-35357
Plaintiff - Appellant, D.C. No. 2:09-cv-00638-BAT
v.
MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Brian Tsuchida, Magistrate Judge, Presiding
Argued and Submitted April 11, 2011
Seattle, Washington
Before: KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.
Margaret Fisher appeals the district court’s decision affirming the
administrative law judge’s denial of Social Security disability benefits. Because
the ALJ offered specific, clear and convincing reasons for discounting the
credibility of Fisher’s testimony; specific and legitimate reasons for discounting
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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the opinions of her treating physician and examining psychologist; and germane
reasons for rejecting the opinion of a mental health counselor; and because
substantial evidence supports the ALJ’s findings, we affirm.
Standard of Review
This court reviews the district court’s judgment de novo to determine
whether the Commissioner supported his decision with substantial evidence and
applied correct legal standards. 42 U.S.C. § 405(g); Batson v. Comm’r of the Soc.
Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Generally, the Commissioner’s
findings must be upheld if they are supported by inferences reasonably drawn from
the record. Id. “Where evidence is susceptible to more than one rational
interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005) (internal citations omitted).
Credibility of Fisher’s Testimony
If a claimant presents objective medical evidence of an underlying
impairment that could reasonably be expected to produce her alleged symptoms,
“and there is no evidence of malingering, ‘the ALJ can reject the claimant’s
testimony about the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36
(9th Cir. 2007) (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
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In making a residual functional capacity determination that limited Fisher to
light work, involving simple, repetitive tasks with little social interaction, the ALJ
discounted Fisher’s testimony regarding the severity of her symptoms because her
testimony was contradicted by evidence of her (1) ability to live independently, (2)
school attendance and performance, and (3) failure diligently to pursue treatment
for hepatitis C and depression.
“[I]f, despite [her] claims of pain, a claimant is able to perform household
chores and other activities that involve many of the same physical tasks as a
particular type of job, it would not be farfetched for an ALJ to conclude that the
claimant’s pain does not prevent the claimant from working.” Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989); see also Burch, 400 F.3d at 681. The evidence
shows that Fisher lives alone, manages her money, maintains her home, and drives
thirty-five miles each way on an almost daily basis to attend community college.
As to his determination that Fisher failed diligently to pursue professional
treatment, the ALJ specifically pointed to (1) a counselor’s March 2007 note
stating that Fisher was “either looking for long-term therapy or ‘a way to strategize
[illegible] SS disability w/her attorneys,” (2) Fisher’s failure to pursue mental
health treatment for several months after stating in an October 2007 that she would
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consider working with a counselor, and (3) a September 2008 report noting that
Fisher has “no real history of outpatient mental health treatment.”
Fisher attributes the gaps in her mental health treatment to financial
difficulties and a “documented fear of authority,” and argues that her poverty and
mental illness do not provide a clear and convincing reason to discount her
testimony on the ground that she did not diligently pursue treatment. Regennitter
v. Comm’r of the Soc. Sec. Admin, 166 F.3d 1294, 1296-97 (9th Cir. 1999). Unlike
the claimant in Regennitter, who had an IQ in the 18th percentile and had only
recently learned to apply for state medical benefits, Fisher has an average IQ, has
been able to attend community college, has been aware of her eligibility for state
Department of Social and Health Services (“DSHS”) coverage for several years,
and has seen multiple doctors who have prepared DSHS evaluations for her.
The ALJ identified “specific, clear and convincing reasons” for discounting
Fisher’s credibility as to the severity of her symptoms, and those reasons are
supported by substantial evidence. Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1282). Although Fisher’s interpretation of the evidence is not
unreasonable, neither is the ALJ’s. His determination that her level of
functionality is consistent with an ability to perform the kind of work described in
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the residual functional capacity assessment is a permissible interpretation of the
evidence. See Burch, 400 F.3d at 679.
Fisher’s Medical Evidence
The opinions of treating physicians are given greater weight than the
opinions of non-treating physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
1996). An ALJ is not bound to accept a treating physician's opinion; however,
“Where the treating doctor’s opinion is not contradicted by another doctor, it may
be rejected only for ‘clear and convincing’ reasons.” Reddick v. Chater, 157 F.3d
715, 725 (9th Cir. 1998). Where there is conflicting medical evidence, the ALJ
must state “specific and legitimate reasons supported by substantial evidence in the
record.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citations and internal
quotation marks omitted).
The ALJ gave substantial consideration but little weight to Dr. Shaw’s
opinions because he found that her conclusions were insufficiently specific;
inconsistent with Fisher’s activities of daily life; and conflicted with the opinion of
an examining physician, Dr. Gaffield. The ALJ also stated that he discounted Dr.
Shaw’s accounts of Fisher's suicidal ideation because of inconsistencies in Dr.
Shaw’s notes and Fisher’s “refus[al] to discuss the issue beyond asserting that she
had attempted suicide on 5 occasions.” The ALJ did not err in discounting the
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weight of Dr. Shaw’s opinion because the lack of evidence in the treatment record
to support Dr. Shaw's opinions regarding Fisher's physical and mental limitations
and inconsistencies in the record regarding Fisher's suicidal ideation are specific
and legitimate reasons supported by substantial evidence.
The ALJ also gave little weight to Dr. Clarke’s opinion because her
assessments of Fisher’s limitations “were based solely on [Fisher’s] subjective
complaints and presentation,” and that assessment conflicts with the evidence of
Fisher’s daily activities and school attendance and performance. The ALJ did not
err in discounting the weight of Dr. Clarke’s opinion because the conflict between
evidence of Fisher’s actual activities and Dr. Clarke’s opinion of her limitations, as
well as Dr. Clarke’s basis of her opinion substantially on Fisher’s subjective
complaints, which the ALJ found not credible, were specific and legitimate reasons
supported by substantial evidence.
The ALJ also considered the Global Assessment of Functioning (“GAF”)
score assigned to Fisher by Sondra LaVerne, a licensed mental health counselor,
but declined to give the score of forty-five much weight because Fisher’s
performance on the mental status examination at the time of that assessment was
essentially normal, aside from the subjective complaints noted. LaVerne is neither
a licensed physician nor licensed or certified psychologist and is therefore not an
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“acceptable medical source,” see 20 C.F.R. § 404.1513(a), and the ALJ need only
provide a germane reason for discounting her opinion. Dodrill v. Shalala, 12 F.3d
915, 919 (9th Cir. 1993). The discrepancy between the results of the mental status
examination and the overall GAF score is a germane reason for rejecting the GAF
score, and that finding is supported by substantial evidence. Therefore, the ALJ did
not err in discounting the weight of LaVerne’s opinion.
AFFIRMED.