NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LESLIE A. SCHMITZ, No. 20-35723
Plaintiff-Appellant, D.C. No. 1:19-cv-03283-TOR
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Submitted May 4, 2021**
Seattle, Washington
Before: BOGGS,*** BERZON, and MURGUIA, Circuit Judges.
Plaintiff Leslie Schmitz appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of her application for disability insurance
*
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).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
benefits under the Social Security Act. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
We review the district court’s decision de novo and reverse only if the
Administrative Law Judge’s (“ALJ”) “decision was not supported by substantial
evidence in the record as a whole or if the ALJ applied the wrong legal standard.”
Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (citation omitted), superseded
by regulation on other grounds. “[W]hen the evidence is susceptible to more than
one rational interpretation, we must uphold the ALJ’s findings if they are supported
by inferences reasonably drawn from the record.” Id. at 1111.
1. The ALJ did not err in determining that Schmitz’s impairments did not
meet or equal Listing 1.04 for disorders of the spine resulting in compromise of a
nerve root, 20 C.F.R. § 404, subpt. P, app. 1, Listing 1.04 (2019). The ALJ based
her determination on evidence in the record reflecting unremarkable neurological
findings. Schmitz argues that the ALJ erred by relying on an absence of imaging
that documented compromise of a nerve root and by misstating the record. Schmitz,
however, does not establish that the ALJ erred in finding Schmitz’s impairments do
not fulfill the listing criteria. Rather, Schmitz advocates for an alternative
interpretation of the evidence. Because the ALJ’s conclusion is supported by a
rational interpretation of the record, we must uphold it. See Molina, 674 F.3d at
1111.
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2. Schmitz contends that the ALJ erred by improperly evaluating the
medical-opinion evidence from six different sources.
First, the ALJ did not err by failing to consider Dr. Kim’s treatment note. In
general, an ALJ is tasked with evaluating every medical opinion in the record. 20
C.F.R. § 404.1527(c). But an ALJ is not required to discuss every treatment note.
See Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 1984) (per curiam)
(explaining that the Secretary does not err in ignoring evidence that is neither
significant nor probative). Dr. Kim’s “suggestion” that Schmitz limit her activities
does not constitute a medical opinion the ALJ was required to consider. See 20
C.F.R. § 404.1527(a)(1). Dr. Kim’s suggestion was not significant or probative to
Schmitz’s disability determination because it addressed Schmitz’s impairments the
week before her scheduled back surgery and noted that her postoperative
recommendations would be determined by her surgeon.
Second, the ALJ did not err by giving the medical opinion of Dr. Pellicer, an
examining physician, “limited weight.” When an examining physician’s “opinion
is contradicted by another doctor’s opinion, an ALJ may only reject it by providing
specific and legitimate reasons that are supported by substantial evidence.” Bayliss
v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Here, Dr. Pellicer’s opinion that
Schmitz could lift less than ten pounds only occasionally, could not bend, crawl, or
kneel, and needed “more frequent breaks” when sitting, walking, or standing for
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extended periods, was contradicted by other medical opinions in the record. The
ALJ explained that Dr. Pellicer’s noted limitations were inconsistent with Schmitz’s
reported ability to do extensive yardwork and were contradicted by the “lack of
neurological findings in treatment settings, in which she has displayed a lack of
weakness in her upper and lower extremities.” A lack of support in the record as a
whole is a “specific and legitimate” reason for discounting a physician’s opinion.
See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
Third, the ALJ did not err by giving the medical opinion of Dr. Burkett, a non-
examining physician, “minimal weight.” Dr. Burkett opined that Schmitz’s
impairments met or equaled Listing 1.04. The ALJ rejected this opinion for the same
reasons it concluded Schmitz’s impairments did not meet or equal Listing 1.04—the
evidence demonstrated “unremarkable neurological findings in treatment settings.”
Schmitz again advocates for a different interpretation of the record, but we may not
reweigh the evidence and substitute our judgment for that of the ALJ’s where the
ALJ’s decision is supported by substantial evidence. See Molina, 674 F.3d at 1111.
Fourth, the ALJ did not err by giving Advanced Nurse Practitioner Jones’s
opinion “minimal weight.” Because nurse practitioners were not “acceptable
medical sources” for claims filed prior to March 27, 2017, see 20 C.F.R. §
404.1502(a)(7), the ALJ was required only to provide germane reasons to discredit
Ms. Jones’s opinion. Molina, 674 F.3d at 1111. Ms. Jones opined that Schmitz
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could not “meet the demands of full time sedentary work,” and the ALJ reasoned
that Ms. Jones’s “check-box form . . . did not refer to any objective basis besides
abnormal gait, decreased range of motion, and diminished reflexes” which were
“insufficient for the wide array of severe limitations opined by Ms. Jones.”
Inconsistency with objective medical evidence is a germane reason for rejecting Ms.
Jones’s opinion. See Bayliss, 427 F.3d at 1218; see also Bray v. Comm’r of Soc.
Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (“[T]he ALJ need not accept the
opinion of any physician, including a treating physician, if that opinion is brief,
conclusory, and inadequately supported by clinical findings.”) (citation omitted).
Fifth, the ALJ did not err by giving Dr. Schmitter’s medical opinion
“significant weight.” Dr. Schmitter testified at Schmitz’s hearing that Schmitz “had
subjective back symptoms without neurologic findings” and that her impairments
did not meet or equal Listing 1.04. Schmitz asserts that the ALJ erred in evaluating
Dr. Schmitter’s testimony because Dr. Schmitter appeared at times confused about
the relevant time period, mischaracterized some relevant evidence, and
demonstrated a lack of basic medical knowledge in one instance. Schmitz’s
objections, however, again ask us to reweigh the evidence. The ALJ was permitted
to credit Dr. Schmitter’s relevant testimony despite the flaws in his testimony on
peripheral issues. Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995)
(explaining that an ALJ “could legitimately credit” the testimony of a non-
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examining physician who “was subject to cross-examination”). And it is the ALJ’s
responsibility to determine credibility and resolve conflicts in the medical evidence.
Batson, 359 F.3d at 1195. Here, the ALJ discussed Dr. Schmitter’s opinion and
identified evidence in the record that supported his opinion over others. The ALJ’s
evaluation is supported by substantial evidence, and we may not reweigh the
evidence even if we would have reached a different conclusion. Garrison v. Colvin,
759 F.3d 995, 1010 (9th Cir. 2014) (“Where the evidence can reasonably support
either affirming or reversing a decision, we may not substitute our judgment for that
of the ALJ.” (internal quotation marks and citation omitted)).
Sixth, the ALJ did not err by giving the medical opinion of Dr. Billings, an
examining physician, only “some weight.” Schmitz contends that the ALJ failed to
list specific reasons for discrediting Dr. Billings’s opinion regarding Schmitz’s
ability to work in a stressful environment and failed to discuss the global assessment
of function (“GAF”) score that Dr. Billings attributed to Schmitz. But the ALJ
determined that Schmitz’s combination of impairments “likely prevented work with
frequent work setting changes or more than incidental public contact, but does not
appear to have materially altered her understanding, memory, concentration, or
persistence.” Schmitz has not demonstrated how this conclusion is inconsistent with
Dr. Billings’s opinion or how Schmitz’s residual functional capacity, does not
incorporate the limitations that Dr. Billings noted. See Turner v. Comm’r of Soc.
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Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (explaining that an ALJ need not provide
reasons for rejecting a physician’s observations that are incorporated into the
residual functional capacity). Additionally, while a GAF score may help guide an
ALJ’s decision, an ALJ is not bound to consider a GAF score. Indeed, the
Commissioner has explicitly disavowed use of GAF scores as indicators of
disability. 65 Fed. Reg. 50,746, 50,764-65 (Aug. 21, 2000) (“The GAF
scale . . . does not have a direct correlation to the severity requirements in our mental
disorder listings.”). Therefore, Schmitz has not identified any error in the ALJ’s
evaluation of Dr. Billings’s opinion.
3. The ALJ did not harmfully err in discrediting Schmitz’s symptom
testimony. If a claimant has presented medical evidence of an impairment that could
reasonably be expected to cause her symptoms and “there is no evidence of
malingering,” the ALJ can reject the claimant’s symptom testimony “only by
offering specific, clear and convincing reasons for doing so.” Garrison, 759 F.3d at
1015 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). Here, the ALJ
gave sufficient clear and convincing reasons to reject Schmitz’s symptom testimony,
even though not all the ALJ’s reasons were proper. See Batson, 359 F.3d at 1197.
The ALJ discredited Schmitz’s symptom testimony in part because of
Schmitz’s inconsistent reports of her physical symptoms to different providers and
Schmitz’s failure to report her struggle with substance abuse during the relevant
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period. These are proper bases for discrediting a claimant’s symptom testimony.
See Smolen, 80 F.3d at 1284 (explaining the ALJ may consider “ordinary techniques
of credibility evaluation, such as . . . prior inconsistent statements concerning the
symptoms, and other testimony by the claimant that appears less than candid” to
determine whether the claimant’s testimony is credible); see also Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (relying in part on the claimant’s
inconsistent statements about alcohol use to reject claimant’s testimony). And the
record here supports the ALJ’s noted inconsistencies. The ALJ also relied on the
lack of objective medical evidence supporting the alleged severity of Schmitz’s
physical symptoms in reaching its adverse credibility determination. And although
never sufficient on its own, a lack of corroborating objective medical evidence is
also a relevant factor when assessing the severity of a claimant’s pain. See Rollins
v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
Because these bases are sufficient to support the ALJ’s overall adverse
credibility determination, we need not address the ALJ’s additional improper
reasons for discrediting Schmitz’s symptom testimony. See Carmickle v. Comm’r
of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (“So long as there remains
‘substantial evidence supporting the ALJ’s conclusions on . . . credibility’ and the
error ‘does not negate the validity of the ALJ’s ultimate [credibility] conclusion,’
such is deemed harmless and does not warrant reversal.” (alterations in original)
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(quoting Batson, 359 F.3d at 1197)). Therefore, we conclude any errors in the ALJ’s
assessment of Schmitz’s symptom testimony were harmless.
AFFIRMED.
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