FILED
NOT FOR PUBLICATION JUN 08 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEONARD G. NOLLEN, No. 11-35501
Plaintiff - Appellant, D.C. No. 2:10-cv-00214-JPH
v.
MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
James P. Hutton, Magistrate Judge, Presiding
Argued and Submitted June 5, 2012
Seattle, Washington
Before: SILVERMAN and MURGUIA, Circuit Judges, and HALL, District
Judge.***
Leonard Nollen appeals the district court’s grant of summary judgment in
favor of the Commissioner’s denial of disability benefits. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Janet C. Hall, United States District Judge for the
District of Connecticut, sitting by designation.
pursuant to 28 U.S.C. § 1291 and review the administrative decision for substantial
evidence. Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). We affirm.
The administrative law judge gave specific reasons supported by substantial
evidence in the record to support the residual functional capacity assessment. He
provided a detailed summary of the medical evidence, interpreted the evidence, and
made findings. He explained that he gave more weight to the treating medical
records and examining physician, but gave some weight to the non-examining
opinion because it was supported by the treating medical records. Because the
limitations that Dr. Bagby diagnosed were limited to a twelve-month period and
the ALJ’s decision was made more than twelve months after Dr. Bagby’s opinion,
the ALJ’s residual functional capacity assessment does not conflict with Dr.
Bagby’s recommendation.
Any error the administrative law judge made by not explaining why he
found that Nollen could occasionally lift 20 pounds was harmless because the
vocational expert identified specific sedentary jobs that Nollen could perform with
his sedentary lower extremity limitations and testified that the reduced lifting limit
would not change his opinion. Molina, 674 F.3d 1115 (error is harmless if the
administrative law judge would have reached the same result or substantial
evidence still supports the decision).
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The administrative law judge properly applied the two-step rule for
evaluating Nollen’s testimony about subjective pain. Lingenfelter v. Astrue, 504
F.3d 1028, 1036 (9th Cir. 2007). The administrative law judge also gave clear and
convincing reasons for rejecting Nollen’s testimony that he could not perform any
work, finding that: (1) treatment was routine and conservative; (2) pain was pretty
well controlled with medication; (3) Nollen failed to follow treatment
recommendations; and (4) objective medical evidence did not support the
testimony. The administrative law judge could consider these factors. Id. at 1040.
In addition, Nollen’s treating medical records support these findings.
Contrary to Nollen’s assertion, the administrative law judge did not
disregard Dr. Bailey’s mental health assessment. The administrative law judge
properly relied on Dr. Chandler’s examining opinion and adopted the only mental
health limitation added by Dr. Bailey’s file review opinion, “superficial public
contact.” The administrative law judge also properly considered the checked boxes
on the mental residual functional capacity assessments in context with the
explanations for the checked boxes provided at the end of the form. It was not
error for the ALJ to give more weight to Dr. Bailey’s narrative conclusions in the
functional capacity assessment section of the mental residual functional capacity
assessment form, as opposed to a checked box on the psychiatric review technique
3
form. Cf. Molina, 674 F.3d at 1111-12 (explaining that an administrative law
judge may reject or give less weight to unexplained check-off reports).
AFFIRMED.
4