Williams v. Barnhart

O’SCANNLAIN, Circuit Judge,

dissenting.

I must respectfully dissent from the decision to reverse the district court and to award disability benefits. The Commissioner’s decision to deny benefits may be overturned “only if it is not supported by substantial evidence.” Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir.1999). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a decision.” Id. Where the evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld. *777Id.; Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995).

In this case, the ALJ rejected the recommendation of an examining physician that the claimant should refrain from repetitive upward and downward gazing or holding his head in a fixed position for a prolonged period of time. The ALJ may reject the uncontradicted opinion of an examining physician for “specific and legitimate reasons that are supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995). However, where a treating physician’s opinion is contradicted by a nontreating source, “the opinion of the nontreating source may itself be substantial evidence; it is then solely the province of the ALJ to resolve the conflict.” Andrews, 53 F.3d at 1041.

Dr. Watkins’ recommendation is inconsistent with those of a nontreating physician, Dr. Kent, who recommended that the claimant “should be prophylactically precluded from very heavy lifting to prevent reinjury and/or aggravation of his current complaints.” The recommendations of Dr. Watkins and Dr. Kent conflict, hence it is solely the province of the ALJ to resolve the conflict. See id. In addition, with one notable exception,1 no other examining physician-even those associated with the claimant’s workers compensation claim-imposed the restriction suggested by Dr. Watkins. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982) (“questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary”); Saelee, 94 F.3d at 522 (“The ALJ is responsible for determining credibility and resolving conflicts in the medical testimony”). It was reasonable for the ALJ to resolve the disputed recommendation.

Two other reasons also serve to support the ALJ’s conclusion. First, the ALJ determined that Dr. Watkins’ recommendation was inconsistent with the documentary medical evidence. Ample evidence on the record exists to support that conclusion. Second, the ALJ found that Williams was an incredible witness. At the original hearing, the claimant refused to give his date of birth, refused to give any details of his treatment at the Veterans’ Hospital, refused to discuss his current use of medication, refused to say what he could lift and endorsed 10 pounds only after much prompting and cajoling by his attorney.2 At its most intense, the pain he testified to “appear[s] to be minimal, remediable with current minimal treatment, and generously considered in reducing his residual functional capacity to any extent.” In making his recommendation, Dr. Watkins specifically relied on the claimant’s *778subjective complaints of pain, and noted that the claimant “did not appear to put his full effort” into grip and strength tests. Because Dr. Watkins’ recommendation was based on the self-serving complaints of an unreliable claimant, the ALJ could legitimately discount that recommendation. Andrews, 53 F.3d at 1043 (“[A]n opinion of disability premised to a large extent upon the claimant’s own accounts of his symptoms and limitations may be disregarded, once those complaints have themselves been properly discounted.”).

I respectfully dissent.

. Dr. Dombrowski, a physician hired by the claimant’s workers’ compensation attorneys to provide a litigation report, provided an assessment of the claimant’s functional capacity that the ALJ found was "ridiculous, completely out of the mainstream of evidence is unsupported by his own report, is polemical in nature, and has no persuasive value.” To the extent the majority suggests otherwise, the ALJ provided sufficient reasons-nay compelling ones-for rejecting Dombrowski's self-serving and unsupported assessment. See Saetee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996) (where a physician’s opinion is solicited by claimant’s counsel, that fact may be used in conjunction with other evidence in the record to question the physician’s credibility and disregard his opinions).

. The district court found other aspects of Williams’ claim for disability benefits were decidedly suspect. For example, Williams submitted two separate versions of a psychiatric evaluation to the ALJ-one long and one short. The "short” version "deleted sections containing specific findings and opinions that could, on balance, be construed as more harmful than helpful to Plaintiff’s Workers Compensation case.” Clearly, the ALJ was never meant to see the "long” version of this report.