FILED
NOT FOR PUBLICATION
JUN 27 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIM WENNET, No. 17-16118
Plaintiff-Appellant, D.C. No. 2:15-cv-02459-SPL
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted May 16, 2019
San Francisco, California
Before: WALLACE, IKUTA, and CHRISTEN, Circuit Judges.
Kim Wennet appeals the denial of her application for Social Security
Disability Insurance Benefits. 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 Ninth Circuit Rule 36-3.
The Administrative Law Judge (ALJ) provided “specific, clear and
convincing reasons” for concluding that Wennet’s symptoms were not as severe as
she alleged. Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017). First, the ALJ
relied on the objective medical findings of the consultative examining physician,
Dr. Jonathan Baugh. The record establishes that Dr. Baugh conducted a systematic
physical examination, recorded detailed notes, and recommended that Wennet had
fewer functional limitations than she alleged.1 Medical reports indicating that the
claimant’s ailments are not as severe as the claimant alleged constitute significant
and substantial reasons to find a claimant’s testimony “less than completely
credible.” Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007).
Second, the ALJ relied on Wennet’s choice of more conservative treatment
options, including her failure to see a neurologist or to try Botox injections despite
multiple recommendations by her treating physician, Dr. Charlene Tobin.
“[E]vidence of conservative treatment is sufficient to discount a claimant’s
1
The record indicates that Dr. Baugh based his opinion on his review of a
Social Security Disability Physical Examination dated January 14, 2010;
information provided by Wennet regarding her medical, social, family, and work
history; and a comprehensive physical examination. Nothing in the record
indicates that the scope of Dr. Baugh’s review was inadequate to render an opinion
on Wennet’s physical condition.
2
testimony regarding severity of an impairment.” Id. at 751 (internal quotation
marks omitted).2
Third, the ALJ concluded that Wennet’s activities of daily living indicated
that her physical impairments were not as severe as she alleged. This conclusion is
supported by substantial evidence in the record, including the following: in April
2012, Wennet traveled to New York City to visit her son and regularly walked up
five floors of stairs to visit his apartment; in June 2012, Wennet took a vacation to
Italy, and on return Dr. Howland, a treating physician, noted her symptoms were
“under relatively good control”; in August 2012, she spent five days packing her
parent’s home preparatory to a move; in October 2012, she reported she had
returned from a vacation to Rocky Point, Mexico, and complained she was now
doing all the work required to get a house ready for her parents’ move; in
November 2012, she reported a sore back from helping her parents move; in March
2013, she took a vacation; in April 2013, she reported walking with her mother
three times a week; in June 2013, she traveled to New York again; in September
2013, she went rafting; and in November 2013, she took another four-day trip to
Rocky Point, Mexico. Although on occasion Wennet reported pain on return from
2
The record does not include any medical evidence or physician warning
indicating that Wennet’s use of Botox for the recommended purpose could have
damaging side effects.
3
these trips (though in many cases, the pain was unrelated to her dystonia), “[e]ven
where [claimant’s] activities suggest some difficulty functioning, they may be
grounds for discrediting the claimant’s testimony to the extent that they contradict
claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104,
1113 (9th Cir. 2012).3
The ALJ also provided “specific and legitimate reasons that are supported by
substantial evidence” for rejecting the opinions of Wennet’s treating physicians.
Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). The ALJ provided specific
and legitimate reasons for discounting the opinion of Dr. Ward, including that Dr.
Ward’s opinion was conclusory and inconsistent with objective medical evidence
and Wennet’s daily activities and conservative treatment history. See Batson v.
Comm’r of SSA, 359 F.3d 1190, 1195 (9th Cir. 2004) (“[A]n ALJ may discredit
treating physicians’ opinions that are conclusory, brief, and unsupported by the
record as a whole.”). Evidence in the record supports the ALJ’s reasons. Dr.
Ward’s treatment reports were check-the-box forms that provided no reasoning,
and thus are entitled to little weight, see Molina, 674 F.3d at 1111, and Dr. Ward’s
summary letter written to assist Wennet in her claim for benefits provided
3
Thus the dissent errs in asserting that activities of daily living are relevant
only if they establish a claimant’s ability to engage in physical functions
transferable to a work setting.
4
conclusions that were unexplained or on issues that are reserved to the
Commissioner; see 20 C.F.R. § 404.1527(d)(1) (“We are responsible for making
the determination or decision about whether you meet the statutory definition of
disability. . . . A statement by a medical source that you are ‘disabled’ or ‘unable to
work’ does not mean that we will determine that you are disabled.”). Moreover,
the ALJ’s determination that Dr. Ward’s opinion was inconsistent with Wennet’s
reported daily activities and conservative treatment history was supported by the
record, as explained above. Finally, Dr. Ward’s opinion was inconsistent with Dr.
Baugh’s opinion, which constitutes substantial evidence because it was supported
by other evidence in the record. See Morgan v. Comm’r of SSA, 169 F.3d 595, 600
(9th Cir. 1999).
The ALJ also provided specific and legitimate reasons for discounting Dr.
Tobin’s opinion of Wennet’s ability to do work-related activities. Dr. Tobin relied
primarily on Wennet’s subjective reports of her daily living activities, and her
opinion was inconsistent with Dr. Baugh’s opinion, Wennet’s conservative
treatment, and Wennet’s activities of daily living. For the same reasons, the ALJ
properly rejected Dr. Howland’s opinion regarding Wennet’s ability to do work
related activities. Moreover, Dr. Howland’s opinion was inconsistent with Dr.
Howland’s progress notes indicating that Wennet’s condition was under relatively
5
good control. Finally, neither Wennet’s physical therapist nor her acupuncturist is
an “[a]cceptable medical source,” 20 C.F.R. § 404.1502(a), and the ALJ gave
“germane reasons” for discounting those opinions, Molina, 674 F.3d at 1111,
including that the limitations those providers identified would not have precluded
Wennet from working. “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).
AFFIRMED.
6
FILED
Wennet v. Saul, No. 17-16118
JUN 27 2019
CHRISTEN, Circuit Judge, dissenting:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
People seeking social security disability benefits sometimes submit
functional assessments from treating physicians that rest wholly on their own
subjective reports of pain or other disabling symptoms. If an administrative law
judge later decides that the claimant’s testimony lacks credibility, the foundation
for the treating physician’s assessment largely fails. This is not such a case. For
more than ten years, Kim Wennet’s treating providers consistently recorded
objective evidence of the severity of her conditions, and those objective indicators
formed the basis of their functional assessments. The ALJ decided that Wennet’s
treating physicians’ reports were not as persuasive as a report authored by a
consultative examiner. But the consultative examiner met with Wennet just one
time and did not review Wennet’s extensive medical records. By my read, the
ALJ’s decision improperly fails to give controlling weight to Wennet’s treating
physicians’ opinions. For this reason, and others explained below, I respectfully
dissent.
Pursuant to the Social Security Administration’s own regulations, “[t]he
medical opinion of a claimant’s treating physician is given ‘controlling weight’ so
long as it ‘is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
[the claimant’s] case record.’” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir.
2017) (quoting 20 C.F.R. § 404.1527(c)(2)) (alterations in original). The majority
concludes that the ALJ’s decision to disregard three treating physicians’ functional
assessments is supported by substantial evidence.1 Our review of the ALJ’s
decision is de novo, and I conclude that the ALJ did not provide “specific and
legitimate reasons that are supported by substantial evidence” for discounting the
treating physicians’ opinions. Id. at 674–75 (quoting Ryan v. Comm’r of Soc. Sec.,
528 F.3d 1194, 1198 (9th Cir. 2008)).
The ALJ’s written decision does not provide the kind of “specific details”
necessary to credit the opinion of a single consultative examiner over the consistent
opinions Wennet’s treating providers generated throughout her years-long course
of treatment. See id. at 676. Instead, the ALJ’s decision relies on “conclusory
determination[s]” that are, in at least some instances, directly contradicted by the
record evidence. Id.
For example, the ALJ’s entire reasoning for discounting Dr. Ward’s treating
source opinion is contained in a single sentence:
1
I agree with the majority that Wennet’s acupuncturist and physical
therapist are not “acceptable medical sources” for purposes of the regulations’
evidentiary presumption, see 20 C.F.R. § 404.1513(a) (2013), and the ALJ need
only have “germane reasons” for discounting those opinions. See Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
2
Although Dr. Ward is a treating source, the undersigned assigns little
weight to [his] opinions, as they appear inconsistent with the overall
evidence of record, including the consultative examiner’s objective
findings showing no manipulative or postural limitations, the
claimant’s consistent conservative treatment history, and her reports
of daily living activities.
But Dr. Ward’s opinion is entirely consistent with Wennett’s overall medical
history. He treated Wennet for many years and consistently made physical exam
findings that support his assessment of Wennet’s functional capacity, as did her
other care providers. His treatment notes, spanning the period between early 2010
and August 2013, show objective physical examination findings of restricted
motion in Wennet’s head and upper spine, tissue changes, asymmetry, and muscle
tenderness.
These findings mirror Dr. Tobin’s physical examination results, which detail
her observations of Wennet’s vertebrae compression, violent muscle spasms, and
sidebending rotation right of the entire cranial mechanism. The ALJ concluded
that Dr. Tobin based her functional assessment primarily on Wennet’s own
subjective reports of pain, which the ALJ did not credit, but Dr. Tobin’s treatment
notes directly contradict the the ALJ’s premise.
Dr. Tobin’s and Dr. Ward’s assessments match Dr. Howland’s later
functional analysis. The sum total of the ALJ’s reasoning for discounting Dr.
3
Howland’s report was that Dr. Howland opined on the ultimate issue of disability.
This was error. The mere fact that Dr. Howland may have provided an opinion on
a legal issue reserved to the agency does not render the rest of her functional
assessment invalid. See, e.g., Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008). The ALJ also noted that Dr. Howland found Wennet’s dystonia under
relatively good control in 2012, but did not consider Dr. Howland’s subsequent
2013 observation that Wennet’s symptoms had progressively worsened, nor did the
ALJ account for the fact that Dr. Howland wrote her functional assessment in
2014, nearly two years after the progress note the ALJ cited.2
Taken together, the record does not substantially support the ALJ’s
conclusion that Wennet’s treating physicians’ functional assessments were
inconsistent with the medical evidence—indeed, apart from Dr. Baugh’s
consultative examination, Wennet’s treating physician notes were the medical
evidence.
The ALJ’s other reasons for discounting Wennet’s treating physicians’
assessments are similarly inadequate. With respect to activities of daily living,
2
Wennet worked full-time with her condition through 2006, then
reduced her hours to a part-time schedule. She stopped teaching completely in
2009 to focus on treatment, and Dr. Ward explained in an August 2013 letter that
“not working” in combination with treatment had led to mild improvement in
Wennet’s symptoms.
4
Wennet has never claimed that she is totally disabled, only that her dystonia
symptoms prevent her from working at a competitive pace. Activities of daily
living can serve as valid reasons to discount contrary medical opinion “if a
claimant is able to spend a substantial part of his day engaged in pursuits involving
the performance of physical functions that are transferable to a work setting.” Orn
v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Fair v. Bowen, 885 F.2d 597,
603 (9th Cir. 1989)). Here, the ALJ did not persuasively explain how or why the
odd airplane ride to New York or a few days spent on the beach in Mexico
undermined Wennet’s doctors’ assessments that she cannot sit at a keyboard and
type for hours on end, or stand for between six and eight hours in a single
workday.3
The ALJ’s “conservative course of treatment” rationale is certainly not
substantial evidentiary support. It is uncontested that Wennet wore a HALO type
brace for many years in an effort to continue working. This brace caused
headaches and “frequent rib dislocations.” Her care providers’ records show that,
despite her reluctance to use any medications due to concerns about chemical
3
Wennet was able to do some traveling after she began suffering from
dystonia, but “[o]ne does not need to be ‘utterly incapacitated’ in order to be
disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). And the ALJ
does not acknowledge that Wennet’s travel often exacerbated her symptoms.
5
dependency, by December of 2014 Wennet had finally resorted to daily
hydrocodone to control her pain. The ALJ overlooked this, and his remark that
Wennet “has never had any surgery” is both illustrative and concerning; in the
same sentence, the ALJ acknowledges that no physician has ever recommended
surgery and there is no indication that a surgical fix exists for Wennet’s disabling
condition. Wennet’s decision not to pursue botox injections out of concerns for
potentially damaging side effects is not, on its own, a reason to discredit her
treating physicians’ functional assessments. See generally Smolen v. Chater, 80
F.3d 1273, 1284 (9th Cir. 1996) (“Where a claimant provides evidence of a good
reason for not taking medication for her symptoms, her symptom testimony cannot
be rejected for not doing so.”). Unlike the majority, I find Wennet’s concerns
about the possibility of damaging side effects from Botox adequately explain her
decision not to pursue that course of treatment.4
The ALJ relied on Dr. Baugh’s consultative examination report to discount
the entirety of Wennet’s ten-plus-year medical history, but Dr. Baugh’s report is a
flimsy counterweight. Dr. Baugh formed his opinion based on a single, brief
4
“Botox injections use a toxin called onobotulinumtoxinA to
temporarily prevent a muscle from moving. This toxin is produced by the microbe
that causes botulism, a type of food poisoning.” Mayo Clinic,
https://www.mayoclinic.org/tests-procedures/botox/about/pac-20384658 (last
visited Jun. 4, 2019).
6
examination and, remarkably, without reviewing Wennet’s medical history.
Instead, Dr. Baugh reviewed just one other consulting examiner’s outdated report
from a period that predates the onset of Wennet’s disability. If Dr. Baugh had
consulted Wennet’s treating providers’ records from the relevant period, he could
not have missed repeated objective physical examination results supporting their
functional assessments. Notably, Dr. Baugh’s opinion agreed with Wennet’s
treating providers on her dystonia diagnosis, and he did not rely on “objective
clinical tests that [Wennet’s treating providers] had not considered.” Orn, 495
F.3d at 633. Given these circumstances, Dr. Baugh’s wildly divergent functional
assessment is difficult to credit and does not amount to sufficient justification for
disregarding the opinions of the physicians who have been treating Wennet for
years on end: Dr. Tobin, Dr. Ward, and Dr. Howland. See Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (“a reviewing court must consider the
entire record as a whole and may not affirm simply by isolating a ‘specific
quantum of supporting evidence.’” (quoting Hammock v. Bowen, 879 F.2d 498,
501 (9th Cir.1989)).
Finally, the majority discredits some of Wennet’s medical sources because
their “treatment reports were check-the-box forms that provided no reasoning.”
Maj. Op. at 4. “A reviewing court may only consider the reasons provided by the
7
ALJ in the disability determination and ‘may not affirm the ALJ on a ground upon
which he did not rely.’” Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018)
(quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)). We have
affirmed an ALJ’s decision to disregard treating physicians’ assessments that
consist only of summary checkbox forms, see Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012), but the record in Wennet’s case is replete with objective
examination results and narrative descriptions that support her treating providers’
functional assessments. The majority overlooks that the ALJ himself
acknowledged that Dr. Tobin provided a narrative report along with a check-box
form. Wennet’s case is thus easily distinguishable from one like Molina, where a
non-medical treating source completed a single functional assessment by checking
boxes without providing narrative descriptions even though the form called for that
kind of explanation. See id. at 1111–12.
We have said in similar cases that “[t]he ALJ must do more than offer his
conclusions” when discounting a treating source’s functional assessment. Orn,
495 F.3d at 632 (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)).
Here, the ALJ’s written decision did not meet that standard. For these reasons, I
respectfully dissent.
8