FILED
NOT FOR PUBLICATION
DEC 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY A. LEE, No. 15-35630
Plaintiff-Appellant, D.C. No. 6:13-cv-00809-SB
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted December 22, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Mary Lee appeals the district court’s decision affirming the Commissioner
of Social Security’s denial of Lee’s application for disability insurance benefits and
supplemental security income under Titles II and XVI of the Social Security Act.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ghanim v.
Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and affirm.
Examining physician Dr. Higgins-Lee’s assignment of a Global Assessment
of Functioning (“GAF”) score of 45 to Lee and her ultimate conclusion that Lee’s
psychological conditions make it impossible for her to work are contradicted by
the medical opinions of nonexamining physicians Dr. Lebray, Dr. Boyd, and Dr.
Lundblad. Each of these doctors noted that Lee was still able to work because her
psychological conditions only led to mild and moderate limitations. Consistent
with these findings, Dr. Lebray also assigned Lee a much higher GAF score.
Accordingly, to reject Dr. Higgins-Lee’s medical opinions the administrative law
judge (“ALJ”) had to provide specific and legitimate reasons supported by
substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The
ALJ provided such reasons.
First, the contradictory medical opinions discussed above undermine Dr.
Higgins-Lee’s conclusion. Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995)
(“We have, in some cases, upheld the Commissioner’s decision to reject the
opinion of a treating or examining physician, based in part on the testimony of a
nonexamining medical advisor.” (citations omitted)). Second, the ALJ notes that
Dr. Higgins-Lee conducted her examination at a stressful time in Lee’s life. Lee’s
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house was being foreclosed on, she was having difficulty finding another place to
rent, and her daughter was potentially going to move away from home. Whereas
Lee cried throughout her examination with Dr. Higgins-Lee, Lee’s demeanor
throughout her Social Security hearing testimony was entirely different, leading the
ALJ to conclude that Lee “returned to baseline.” See Rollins v. Massanari, 261
F.3d 853, 856 (9th Cir. 2001) (noting that an improvement in a medical condition
can be a specific and legitimate reason for rejecting a physician’s medical opinion).
Third, Lee’s daily activities are inconsistent with Dr. Higgins-Lee’s conclusion that
Lee cannot work. Ghanim, 763 F.3d at 1162 (noting that a conflict between a
medical opinion and a claimant’s activities can serve as a specific and legitimate
reason for rejecting the medical opinion). Lee stated that she does the dishes,
occasionally does the wash and drying, sometimes cooks dinner and does the
shopping, helps with the garden, watches TV, uses her computer, and volunteers at
the Moose Club on Wednesday nights to call bingo.
Lee’s arguments that the ALJ erred by not specifically discussing both
specific medical test results from Dr. Higgins-Lee’s examination and Dr. Higgins-
Lee’s ultimate conclusion that Lee could not work also fail. The ALJ specifically
rejected the GAF score—a rating of Lee’s overall psychological functioning—that
Dr. Higgins-Lee assigned Lee. See Social Security Disability Law & Procedure in
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Federal Court § 5:30 (Carolyn A. Kubitschek & Jon C. Dubin, eds., 2017). After
rejecting the GAF score, the ALJ did not need to reject each individual
psychological test result that Dr. Higgins-Lee relied on when assigning Lee’s GAF.
See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (noting that an ALJ does
not need to discuss evidence “that is neither significant nor probative”).
Specifically rejecting Dr. Higgins-Lee’s ultimate conclusion that Lee was unable to
work was also unnecessary because this conclusion followed directly from the
ALJ’s rejection of the GAF score. See Social Security Disability Law & Procedure
in Federal Court § 5:30 (noting that a common manifestation of a GAF score of 45
is not being able to keep a job).
Treating physician Dr. Pinsonneault’s conclusion that Lee could not work
because her asthma prevents her from lifting or carrying items and walking more
than thirty minutes, and her mental conditions significantly interfere with her
concentration and social abilities is contradicted. Nonexamining physicians Dr.
Alley, Dr. Pritchard, and Dr. Eder all conclude that Lee can carry or lift objects,
and stand and/or walk about six hours in a workday. Nonexamining physicians Dr.
Lebray and Dr. Boyd conclude that Lee has mild difficulties in maintaining
concentration, persistence, or pace and moderate difficulties in social functioning.
Because Dr. Pinsonneault’s opinions regarding the limitations resulting from Lee’s
4
medical conditions are contradicted, Dr. Pinsonneault’s derivative conclusion that
Lee is unable to work is contradicted. The ALJ provides the required specific and
legitimate reasons supported by substantial evidence to reject Dr. Pinsonneault’s
opinions.
First, the conflicting medical opinions discussed above undermine Dr.
Pinsonneault’s opinions. Lester, 81 F.3d at 831. Second, the ALJ notes that Dr.
Pinsonneault’s conclusions are “unsupported by medically acceptable clinical and
laboratory diagnostic techniques.” Dr. Pinsonneault wrote an initial letter
expressing her opinion that Lee was permanently disabled after a single
appointment that included minimal objective medical testing. Then, barely three
weeks into the patient-physician relationship and after only the second
appointment, which included a discussion of Lee’s blood work, Dr. Pinsonneault
wrote a second letter reaching the same conclusion. The minimal objective
evidence supporting Dr. Pinsonneault’s opinions and the brevity of the patient-
physician relationship justify discounting these opinions. Bayliss v. Barnhart, 427
F.3d 1211, 1216 (9th Cir. 2005) (“[W]hen evaluating conflicting medical opinions,
an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory,
and inadequately supported by clinical findings.”). Finally, the ALJ notes that Dr.
Pinsonneault’s opinion is internally contradictory because she concludes Lee is
5
permanently disabled but notes that Lee’s conditions are well controlled on
medication. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692–93 (9th
Cir. 2009). A finding that symptoms are well controlled on medications is not
necessarily inconsistent with a finding of disability. However, the record here
indicates that when Lee’s conditions are well controlled, she is able to work.
The ALJ provides specific, clear, and convincing reasons for rejecting Lee’s
hearing testimony. First, the ALJ’s extensive discussion of the medical record
reveals that many medical opinions conflict with Lee’s testimony regarding the
severity of her symptoms. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
Second, Lee continued working at substantial gainful employment levels for over a
year after the alleged onset of her disability. Third, Lee’s various daily activities
discussed above undermine her credibility regarding the intensity of her pain and
limitations. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th
Cir. 2009). Finally, the ALJ notes that Lee’s multiple failures to follow a
prescribed course of treatment undermine her credibility. Tommasetti v. Astrue,
533 F.3d 1035, 1039 (9th Cir. 2008) (citing Smolen v. Chater, 80 F.3d 1273, 1284
(9th Cir. 1996)).
6
Because lay witness Margaret Hicks’s testimony is largely consistent with
Lee’s testimony, the same reasons for rejecting Lee’s testimony justify rejection of
Hick’s testimony. See Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012).
Finally, the ALJ did not err at step five. The ALJ was only required to
incorporate the accepted medical evidence into the residual functional capacity,
and he did just that. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197
(9th Cir. 2004). Moreover, the ALJ accounted for his finding that Lee had
moderate difficulties in concentration, persistence, or pace by limiting Lee to
“simple repetitive tasks” because this limitation accorded with the restrictions
discussed in the medical record. See Stubbs-Danielson v. Astrue, 539 F.3d 1169,
1174 (9th Cir. 2008).
AFFIRMED.
7
Mary Lee v. Nancy Berryhill
Combined Opinion