FILED
NOT FOR PUBLICATION
NOV 07 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMY MARIE PHELPS, No. 16-16591
Plaintiff-Appellant, DC No. CV 15-00853 SPL
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Submitted October 13, 2017**
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and LEITMAN,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Matthew Frederick Leitman, United States District
Judge for the Eastern District of Michigan, sitting by designation.
Appellant Amy Marie Phelps applied for Social Security disability insurance
benefits. She alleged a disability stemming from back and hip problems, as well as
depression and anxiety. An Administrative Law Judge (“ALJ”) found that her
mental impairments were not severe and that, although her physical impairments
were severe, she could still perform her past relevant work. The ALJ therefore
concluded she was not disabled and denied her application. In reaching this
conclusion, the ALJ discounted certain medical opinions.
The ALJ’s denial of Phelps’ application was affirmed by the district court.
This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
1. Phelps had the burden to demonstrate that her mental impairments
were severe, Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), and
significantly limited her ability to do basic work activities, 20 C.F.R. §
404.1520(c). The ALJ did not err in finding that Phelps failed to meet that burden
and, in doing so, discounting the opinions of Drs. Robert Marselle and Kara Cross
who each examined Phelps once, and two other non-examining physicians who
reviewed Phelps’ medical records. Among these opinions, there were material
conflicts regarding Phelps’ functional limitations.
2
The ALJ is tasked with resolving such conflicts and ambiguities in the
medical evidence. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). To
discount these conflicting opinions, the ALJ was required to “provid[e] specific
and legitimate reasons that are supported by substantial evidence.” Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. The evidence must be more than a mere scintilla but not necessarily a
preponderance.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(internal quotation marks and citations omitted). “The ALJ can meet this burden
by setting out a detailed and thorough summary of the facts and conflicting clinical
evidence, stating [his] interpretation thereof, and making findings.” Id. at 1041
(quoting Magallanes, 881 F.2d at 751). The ALJ’s “findings are upheld if
supported by inferences reasonably drawn from the record, and if evidence exists
to support more than one rational interpretation, we must defer to the [ALJ’s]
decision.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004) (citations omitted).
Here, the ALJ set out in detail the objective findings from the two mental
examinations conducted by Drs. Marselle and Cross, noting Phelps’ descriptions of
the various activities and relationships she was able to sustain and her ability to
3
perform most of the cognitive tasks she was asked to complete. Based on these
results, the ALJ found Phelps had at most mild limitations and no episodes of
decompensation, and therefore concluded Phelps’ mental impairments were not
severe. See 20 C.F.R. §§ 404.1520a(c), (d)(1). The ALJ then discussed the other
evidence regarding Phelps’ mental impairments, none of which detailed
corresponding limitations or specialized treatment. Based on this evidence, the
ALJ gave little weight to Drs. Marselle and Cross’ opinions because they were not
consistent with their own objective findings, and were inconsistent with the record
as a whole. This was sufficient. See Batson, 359 F.3d at 1195 (ALJ may discredit
medical opinions that are unsupported by record as a whole or by objective
medical findings). The ALJ’s similar reason for discounting the opinions of the
two non-examining physicians was likewise sufficient.
2. The ALJ also did not err in discounting the opinion of Phelps’ treating
physician, Dr. Kenneth Lucero, in favor of the opinions of non-examining
physicians. Dr. Lucero’s opinion on Phelps’ physical limitations was contradicted
by the opinions of these non-examining physicians. In order to discount it, the
ALJ was thus required to provide “specific and legitimate reasons that are
supported by substantial evidence.” Bayliss, 427 F.3d at 1216. After detailing
Phelps’ diagnostic results and conservative treatment, and Dr. Lucero’s own notes,
4
the ALJ discounted Dr. Lucero’s opinion because it was brief, conclusory, and
inadequately supported by the clinical findings, as well as inconsistent with both
Dr. Lucero’s own treatment records and the objective medical evidence as a whole.
This was sufficient. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)
(“The 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.”); see also Tommasetti, 533 F.3d at 1041 (“incongruity” between
a treating physician’s opinion on the patient’s limitations and the patient’s medical
records is a “specific and legitimate reason” for discounting that opinion). The
ALJ also discounted Dr. Lucero’s opinion because it was inconsistent with Phelps’
stated ability to sustain certain activities, which is itself a specific and legitimate
reason to discount a treating physician’s opinion. See Ghanim v. Colvin, 763 F.3d
1154, 1162 (9th Cir. 2014). Even if the ALJ erred by discounting Dr. Lucero’s
opinion on this basis, any error was harmless. See Carmickle v. Comm’r, Soc. Sec.
Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008).
The judgment of the district court is AFFIRMED.
5
FILED
Phelps v. Berryhill, No. 16-16591
NOV 07 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LEITMAN, District Judge, concurring in part and dissenting in part.
I agree with the Court that the ALJ did not err in discounting the opinion of
Dr. Kenneth Lucero. However, I respectfully dissent from the Court’s
determination that the ALJ did not err in discounting the opinions of (1) examining
doctors Robert Marselle, Ph.D., and Kara Cross, Ph.D., and (2) reviewing doctors
David Biscardi, Ph.D, and Yanira Olaya, M.D. As the Court fairly notes, there
were conflicts among certain aspects of the opinions offered by these four mental
health professionals. But the opinions were consistent in one important respect:
Drs. Marselle, Cross, and Biscardi opined that Ms. Phelps was moderately limited
in maintaining regular attendance and performing work activities on a consistent
basis. And although Dr. Olaya did not opine on that precise point, he did conclude
that Ms. Phelps was moderately impaired in maintaining concentration,
persistence, and pace. “To reject an uncontradicted opinion of a[n] ... examining
doctor, an ALJ must state clear and convincing reasons that are supported by
substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). I
do not believe that the ALJ satisfied this standard with respect to his rejection of
the opinions of Drs. Marselle and Cross (as largely confirmed by Drs. Biscardi and
Olaya) that Ms. Phelps was moderately limited as described above.