NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LINDA BUSTAMANTE, No. 13-15152
Plaintiff - Appellant, D.C. No. 2:12-cv-00075-NVW
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted March 12, 2015
San Francisco, California
Before: BERZON, BYBEE, and OWENS, Circuit Judges.
Linda Bustamante appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for disability
insurance benefits under Title II of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Bustamante’s main contention is that the ALJ erred by rejecting the opinion
of a state agency examining psychiatrist in favor of the opinion of a nonexamining
state agency reviewer. In particular, Bustamante argues that the ALJ improperly
relied on her failure to seek treatment and her noncompliance with the treatment
she did receive to reject the examining psychiatrist’s opinion that she has disabling
depression. Though Bustamante is correct that failure to seek or comply with
treatment is an impermissible ground for rejecting a doctor’s diagnosis of mental
illness when the failure is attributable to the mental illness, see Regennitter v.
Comm’r of the Soc. Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir. 1999), there is
“no medical evidence that [Bustamante’s] resistance was attributable to her mental
impairment rather than her own personal preference,” Molina v. Astrue, 674 F.3d
1104, 1114 (9th Cir. 2012). As a result, the ALJ did not err and provided “specific
and legitimate reasons that are supported by substantial evidence” for rejecting the
opinion of the examining psychiatrist. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th
Cir. 2012). Any reliance on other, potentially improper reasons was harmless. See
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008).
Bustamante also contends that the ALJ erred by rejecting her symptom
testimony. The ALJ, however, provided at least two reasons supported by
substantial evidence for rejecting her testimony: (1) her shifting designation of her
2
primary disability; and (2) her inconsistent explanations of why she left her job.
See Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (“Factors that an ALJ may
consider in weighing a claimant’s credibility include . . . inconsistencies in
testimony . . . .”). Together these constitute “clear and convincing reasons” for
rejecting Bustamante’s symptom testimony. See id. at 635 (internal quotation
mark omitted). Again, any reliance on other, potentially impermissible reasons
was harmless. See Carmickle, 533 F.3d at 1162-63.
Bustamante’s final contention is that the ALJ exhibited improper bias
against her. She bases this argument exclusively on a comment the ALJ made at
the beginning of her hearing concerning her fibromyalgia claim. Although this
comment may have been ill advised, “the ALJ’s behavior, in the context of the
whole case,” was not “so extreme as to display clear inability to render fair
judgment.” Rollins v. Massanari, 261 F.3d 853, 858 (9th Cir. 2001) (quoting
Liteky v. United States, 510 U.S. 540, 551 (1994)) (internal quotation marks
omitted); see also Bayliss v. Barnhart, 427 F.3d 1211, 1215-16 (9th Cir. 2005)
(“[We] have rejected allegations that due process was violated when isolated parts
of an ALJ’s conduct were challenged but the record as a whole showed
fundamental fairness for the litigants.”). Her claim of bias thus fails.
AFFIRMED.
3
FILED
Bustamante v. Colvin, No. 13-15152 APR 10 2015
MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent.
It is sometimes “reasonable for [an Administrative Law Judge (“ALJ”)] to
conclude that the level or frequency of treatment [is] inconsistent with the level of
complaints” a claimant asserts or a medical expert finds. Molina v. Astrue, 674
F.3d 1104, 1114 (9th Cir. 2012) (internal quotation marks omitted). But no
reasonable factfinder could doubt that Bustamante is severely depressed, as
evidenced by (1) her recent suicide attempt; (2) her multiple reported prior
attempts; (3) her persistent suicidal ideation; and (4) her post-suicide-attempt
diagnosis, by her treating psychiatric clinic, of “major depressive disorder,
recurrent episode, severe.” Indeed, Bustamante’s recent suicide attempt and major
depression diagnosis occurred after both mental health opinions discussed by the
ALJ were rendered, serving strongly to corroborate the examining doctor’s opinion
the ALJ rejected, and severely to undermine the paper-review opinion the ALJ
credited.
Furthermore, “an adjudicator must not draw any inferences about an
individual’s symptoms and their functional effects from a failure to seek or pursue
regular medical treatment without first considering any explanations that the
individual may provide, or other information in the case record, that may explain
infrequent or irregular medical visits or failure to seek medical treatment.” Orn v.
Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (internal quotation marks omitted).
Here, Bustamante testified that her medication was not “really working” and that
she was unable to return to mental health treatment because of “a long waiting
list.” There is no indication the ALJ considered her explanations. And the record
as a whole, despite the absence of a doctor’s explicit statement, suggests that
Bustamante did not pursue treatment more actively because she was depressed.
Given all of these reasons to credit, rather than discredit, Doctor Steingard’s
evaluation of Bustamante’s likely vocational impairment on account of her
depression, it is clear to me that Bustamante’s failure to pursue treatment for her
depression could support the ALJ’s decision only on the separate policy ground
that “[i]mpairments that can be controlled effectively with medication are not
disabling for the purpose of determining eligibility for SSI benefits.” Warre v.
Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). But the ALJ
made no finding that Bustamante’s depression could be controlled effectively, nor
was there evidence in the record to support such a finding. Cf. Orn, 495 F.3d at
637; Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). Thus, Bustamante’s
failure to pursue treatment for her depression was not a legitimate reason to reject
the psychiatrist’s opinion. The ALJ’s only other specific reason for rejecting that
2
opinion, that Bustamante demonstrated no cognitive deficits, was off-point as
depression is at issue, for reasons we recently surveyed. See Ghanim v. Colvin,
763 F.3d 1154, 1164 (9th Cir. 2014).
Finally, the ALJ offered no clear and convincing reason for rejecting
Bustamante’s symptom testimony, at least as to her depression. That her own
designation of her primary disability shifted also does nothing to cast doubt on the
well-documented fact that she was severely depressed for at least a large part of the
pertinent period. As for her supposedly inconsistent testimony regarding her
reason for leaving her job, her various statements, while sometimes incomplete, are
all consistent with her fullest explanation of the end of her employment: “I missed
a lot of work due to the pain, and I was unable to perform my duties. . . . I was
released due to my poor attendance.” Absent clear and convincing reasons, I
would hold that the ALJ erred in discrediting Bustamante’s testimony, at least as to
her depression.
Because the ALJ “failed to provide legally sufficient reasons for rejecting”
the psychiatrist’s opinion and Bustamante’s testimony, Garrison v. Colvin, 759
F.3d 995, 1020 (9th Cir. 2014), I would remand for a calculation of benefits.1
1
I note, however, that there is pending en banc activity in two cases
involving our credit-as-true doctrine. See Burrell v. Colvin, 775 F.3d 1133 (9th
Cir. 2014); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090 (9th Cir.
3
2014).
4