Nelson v. Astrue

Filing 22

ORDER that the ALJ's decision is AFFIRMED. The Clerk is directed to enter judgment in this matter. Signed by Judge G Murray Snow on 8/6/13. (LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 No. CV-12-1514-PHX-GMS Lydia S. Nelson, 10 ORDER Plaintiff, 11 vs. 12 Carolyn W. Colvin,1 Acting Commissioner of the Social Security Administration, 13 Defendant. 14 15 Pending before the Court is the appeal of Plaintiff Lydia Nelson, who challenges 16 the Social Security Administration’s (SSA) decision to deny benefits. (Doc. 1.) For the 17 reasons set forth below, the Court affirms the decision of the SSA. 18 BACKGROUND 19 Nelson claims that she has been disabled since August 19, 2008. (R. at 23.) Prior 20 to the onset of her alleged disability, Nelson worked as a copier. (Id. at 27.) She 21 submitted a Title II application for disability and disability benefits on September 18, 22 2008. (Id. at 21.) The SSA denied her claims on October 2, 2008, and again upon 23 reconsideration on July 20, 2009. (Id.) Nelson subsequently requested a hearing, which 24 was held on February 9, 2011, in Phoenix, Arizona. (Id.) On February 24, 2011, the 25 Administrative Law Judge (ALJ) issued a decision finding that Nelson was not disabled 26 1 27 28 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, subsequent to the filing of this suit. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and 42 U.S.C. § 405(g), Carolyn W. Colvin is substituted for Michael J. Astrue as the Defendant in this suit. 1 under sections 216(i) and 223(d) of the Social Security Act. (Id. at 28.) 2 To determine whether Nelson was disabled, the ALJ undertook the five-step 3 analysis detailed at 20 C.F.R. §§ 404.1520(a) and 416.920(a).2 (R. at 22.) He determined 4 at the first step that Nelson had not engaged in substantial gainful activity since August 5 19, 2008, the alleged onset date. (Id. at 23.) The ALJ then found that Nelson had the 6 following severe impairments: bipolar disorder, anxiety, depression, and schizophrenia. 7 (Id.) At step three, the ALJ determined that none of these impairments, either alone or in 8 combination, met or equaled any of the SSA’s listed impairments. (Id. at 23–24.) 9 At that point, the ALJ made a determination of Nelson’s residual functional 10 capacity (RFC),3 concluding that she could “perform a full range of work at all exertional 11 levels with the following nonexertional limitations: only simple, routine, repetitive tasks 12 2 13 A claimant must be found disabled if she proves: (1) that she is not presently engaged in a substantial gainful activity[,] (2) that her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in the regulations. If the impairment does not meet or equal one of the specific impairments described in the regulations, the claimant can still establish a prima facie case of disability by proving at step four that in addition to the first two requirements, she is not able to perform any work that she has done in the past. Once the claimant establishes a prima facie case, the burden of proof shifts to the agency at step five to demonstrate that the claimant can perform a significant number of other jobs in the national economy. This step-five determination is made on the basis of four factors: the claimant’s residual functional capacity, age, work experience and education. 14 15 16 17 18 19 20 21 22 23 Under the test: Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal citations and quotations omitted). 3 24 25 26 27 28 In greater detail, a residual functional capacity (“RFC”) is “an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.” SSR 96–8p. In particular, the RFC assessment must describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. Id. The RFC determination may be based on a wide variety of evidence in the record–the claimant’s medical history, laboratory findings, the effects of treatment, reports of daily activities, lay evidence, recorded observations, medical source statements, effects of symptoms that are reasonably attributable to a medically determinable impairment, evidence from attempts to work, the need for a structured living environment, and work evaluations. Id -2- 1 in a work environment free of fast-pace production requirements and involving only 2 work-related decisions with few, if any workplace changes.” (Id. at 24–25.) Still at step 3 four, the ALJ concluded that Nelson was capable of performing her past work as a copier. 4 (Id. at 27.) The ALJ therefore did not reach step five. The Appeals Council declined to 5 review the decision. (Id. at 1–4.) 6 Nelson filed the Complaint in this action on July 13, 2012, seeking the Court’s 7 review of the ALJ’s denial of benefits. (Doc. 1.) The matter became fully briefed on May 8 24, 2013. (Docs. 13, 14, 20.) DISCUSSION 9 10 I. LEGAL STANDARD 11 A reviewing federal court will address only those issues raised by the claimant in 12 the appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 13 2001). A federal court may set aside a denial of disability benefits when that denial is 14 either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 15 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less 16 than a preponderance.” Id. (quotation omitted). It “is relevant evidence which, 17 considering the record as a whole, a reasonable person might accept as adequate to 18 support a conclusion.” Id. (quotation omitted). 19 The ALJ is responsible for resolving conflicts in testimony, determining 20 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 21 Cir. 1995). “When the evidence before the ALJ is subject to more than one rational 22 interpretation, we must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. 23 Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the 24 reviewing court must resolve conflicts in evidence, and if the evidence can support either 25 outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. 26 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). 27 Harmless errors in the ALJ’s decision do not warrant reversal. Stout v. Comm’r, 28 Soc. Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006). Errors are harmless if they are -3- 1 “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 2 1104, 1115 (9th Cir. 2012). In other words, harmless error occurs when the record shows 3 that “the ALJ would have reached the same result absent the error” or “it was clear [the 4 errors] did not alter the ALJ’s decision.” Id. “[T]he burden of showing that an error is 5 harmful normally falls upon the party attacking the agency’s determination.” Shinseki v. 6 Sanders, 556 U.S. 396, 409 (2009). 7 II. ANALYSIS 8 Nelson argues that the ALJ erred by: (A) accepting certain medical source 9 opinions that actually supported a claim of disability, (B) rejecting the opinions of 10 Nelson’s treating psychiatrist and nurse practitioner that Nelson’s symptoms prevented 11 her from working, (C) discounting Nelson’s own testimony regarding the severity of her 12 symptoms, and (D) failing to discuss a Third Party Report from Nelson’s friend. 13 A. Accepted Medical Source Opinions 14 The ALJ ultimately found that Nelson had the RFC “to perform a full range of 15 work at all exertional levels but with the following nonexertional limitations: only 16 simple, routine, repetitive tasks in a work environment free of fast-pace production 17 requirements and involving only work-related decisions with few, if any workplace 18 changes.” (R. at 25.) The ALJ relied both on the VE’s testimony that an individual with 19 Nelson’s RFC would be able to perform Nelson’s past work as a copier, and apparently 20 on his own judgment that Nelson, given the RFC he assigned, would be able to do her 21 past work as a copier. (Id. at 27.) 22 In his Decision, the ALJ cited as supporting evidence the opinions of three 23 physicians: Drs. Brent Geary, S. Tyutyulkova, and Stephen Fair. (R. at 26–27.) The ALJ 24 claimed that these “[a]ssessments . . . support the conclusion that the claimant’s mental 25 impairments are not disabling.” (Id. at 26.) Nelson argues that the ALJ’s RFC and 26 ultimate non-disability determination are not supported by substantial evidence because 27 the reports of each of the three doctors cited by the ALJ individually point to the opposite 28 conclusion, namely, that she is disabled. -4- 1. 1 Dr. Geary 2 Dr. Geary diagnosed Nelson with a presently moderate form of bipolar disorder in 3 December 2008. (Id. at 294.) After examining and interviewing Nelson, Dr. Geary made 4 the following observations about Nelson’s function capacity: difficulty maintaining 5 focus; weakness in calculation; not limited in her ability to understand and remember 6 information; mild limitations in her capacity to sustain concentration, with difficulties in 7 maintaining sustained attention; moderate limitations in persistence; prone to periods of 8 impulsivity when she gets off track and loses task orientation; not particularly limited in 9 social interaction; moderate limitations in adaptation; experiences mood swings with 10 periods of nonproductivity and unreliability; and experiences lapses in judgment and 11 psychotic symptoms if she is not medicated. (Id. at 294–95.) Dr. Geary did not offer any 12 specific opinion on whether those limitations rendered Nelson disabled. 13 The ALJ recited these observations in his decision as evidence supporting his 14 determination of Nelson’s RFC. (Id. at 26.) But when Nelson presented the vocational 15 expert who testified at the hearing with a hypothetical person with the limitations 16 identified by Dr. Geary alone, the expert opined that there would be no work for such an 17 individual. (Id. at 69–70.) Nelson claims that the ALJ cannot cite the opinion of an 18 examining physician to “support the conclusion that the claimant’s mental impairments 19 are not disabling,” (id. at 26), when those same limitations preclude the availability of 20 work. 21 Dr. Geary’s opinion, however, was not the RFC that the ALJ determined for 22 Nelson. It was only one of several factors that the ALJ considered in arriving at the RFC. 23 As discussed below, other doctors found slightly different limitations, and the ALJ came 24 up with Nelson’s RFC based on the collective medical evidence. Thus, the ALJ 25 reasonably synthesized the limitations Dr. Geary observed (limitations in sustaining 26 attention, persistence, and staying on task) along with the limitations observed by the 27 other cited doctors into Nelson’s RFC by limiting her to “only simple, routine, repetitive 28 tasks in a work environment free of fast-pace production requirements and involving only -5- 1 work-related decisions with few, if any workplace changes.” (Id. at 24–25.) After 2 comparing the ALJ’s RFC, Dr. Geary’s opinion, and the vocational expert’s testimony, it 3 is apparent that the ALJ did not adopt all of the restrictions observed by Dr. Geary. Nor 4 was he required to. He reasonably incorporated Dr. Geary’s opinion as part of the overall 5 medical evidence and adjusted the RFC to reflect the general tenor the limitations Dr. 6 Geary observed. And the vocational expert opined that Nelson could return to her 7 previous work, given the RFC the ALJ assigned to her. Nelson would have Dr. Geary’s 8 opinion play an outsized role in the RFC determination by highlighting potential conflicts 9 with the ALJ’s ultimate RFC. Yet the ALJ’s interpretation of Dr. Geary’s opinion is a 10 reasonable one, and that ends this Court’s review of the ALJ’s determination. See, e.g., 11 Matney, 981 F.2d at 1019. 12 The existence of a contrasting interpretation of Dr. Geary’s opinion from the 13 vocational expert does not make the ALJ’s interpretation unreasonable or lacking 14 substantial evidence. First, the ALJ was not bound by the vocational expert’s 15 interpretation of the limitations identified by Dr. Geary. By law, that determination is left 16 to the ALJ alone. See, e.g., 20 C.F.R. § 404.1527(d); Gomez v. Chater, 74 F.3d 967, 972 17 (9th Cir. 1996) (“Thus, while the ALJ called a vocational expert to testify at the hearing, 18 he ultimately and properly relied solely on the medical-vocational guidelines in Part 404, 19 Subpart P, Appendix 2, in finding that Gomez could perform other work in the national 20 economy.”). Second, the hypothetical Nelson presented to the vocational expert reflected 21 the opinion of just one doctor. The Ninth Circuit has long held that the testimony of a 22 vocational expert loses its evidentiary value when the hypothetical presented was 23 incomplete. See, e.g., Delorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). If the ALJ 24 cannot rely on the vocational expert’s response to an incomplete hypothetical, neither can 25 Nelson. An ALJ is “free to accept or reject restrictions in a hypothetical question that are 26 not supported by substantial evidence.” Osenbrock v. Apfel, 240 F.3d 1157, 1164–65 (9th 27 Cir. 2001) (holding that the ALJ did not err in asking hypotheticals to the VE that did not 28 reflect all of the claimant’s alleged limitations when those omitted limitations were not -6- 1 supported by substantial evidence). The ALJ could reasonably accept the general 2 contours of the limitations identified by Dr. Geary and yet find those limitations to be less 3 severe. Either way, the ALJ was not bound by the expert’s interpretation of Dr. Geary’s 4 opinion. The ALJ was permitted to consider Dr. Geary’s opinion in conjunction with the 5 other medical evidence to arrive at an RFC for Nelson. Because there is substantial 6 evidence to support the ALJ’s interpretation of Dr. Geary’s testimony, there was no error. 7 See Gomez, 74 F.3d at 972 (noting that Magallanes “requires that there be substantial 8 evidence for rejecting the opinion of a vocational expert resulting from a hypothetical 9 question propounded by claimant’s counsel”); Magallanes, 881 F.2d at 756–57 10 (observing that “[t]he ALJ is not bound to accept as true the restrictions presented in a 11 hypothetical question propounded by a claimant’s counsel. . . . Rather, the ALJ is free to 12 accept or reject these restrictions . . . as long as they are supported by substantial 13 evidence. . . . This is true even where there is conflicting medical evidence” (internal 14 quotation marks and citations omitted)). 15 Moreover, even if the ALJ was required to explicitly address the contrary expert 16 testimony, any error was harmless. It is clear the ALJ would reach the same decision if 17 this Court were to reverse solely on the basis that the ALJ did not address the contrary 18 vocational expert testimony. See Molina, 674 F.3d at 1115 (recognizing harmless error 19 where “the ALJ would have reached the same result absent the error” or “it was clear [the 20 errors] did not alter the ALJ’s decision”). As discussed below, Nelson has shown no other 21 error in the ALJ’s handling of the medical evidence. Consequently, there was no material 22 error in the ALJ’s treatment of Dr. Geary’s opinion. 23 2. Drs. Tyutyulkova and Fair 24 Like Dr. Geary, Dr. Tyutyulkova assessed Nelson in December 2008, though it 25 does not appear Dr. Tyutyulkova examined Nelson. Dr. Tyutyulkova filled out the SSA’s 26 standard Mental Residual Function Capacity Assessment (“MRFCA”). This form has 27 several parts, but only Sections I and III are relevant here. Section I asked Dr. 28 Tyutyulkova to check boxes regarding Nelson’s limitations, while Part III asked Dr. -7- 1 Tyutyulkova to provide a narrative evaluation of Nelson’s functional capacity. (R. at 2 314–19.)4 In the functional capacity assessment, Dr. Tyutyulkova opined that Nelson had 3 no limitation in memory; the ability to engage in day-to-day activities independently; less 4 than substantial limitation in the ability to sustain concentration and pace; the ability to 5 complete a normal workday/workweek with minimal interruption from symptoms; 6 minimal limitation in the ability for appropriate social interactions; no evidence of 7 paranoia; and less than substantial limitation in the ability to adjust appropriately to 8 changes in routine. (Id. at 319.) 9 Dr. Fair followed a similar procedure. (Id. at 443–49.) He observed that 15 The claimant is earning B’s and C’s in her EEG training program and is able to understand and remember detailed tasks. She is successfully working on a training program and attending rehab program 3 days a week. So, she would be able to persevere and concentrate on at least simple, routine work over an extended period of time. She is able to interact appropriately with her case manager and TNP and would be able to interact with others in a work situation. The claimant has been able to adjust to a class schedule while also attending a rehab program. So, she is able to adapt to changes in a simple work environment. 16 (Id. at 449.) Like he did with Dr. Geary, the ALJ repeated and relied on the conclusions 17 of Drs. Tyutyulkova and Fair in his decision. (Id. at 26–27.) 10 11 12 13 14 18 The opinions of Drs. Tyutyulkova and Fair as to Nelson’s functional capacity are 19 not inconsistent with the ALJ’s RFC and ultimate disability determination. The opinions 20 reflect symptoms that are not so severe as to prevent Nelson from employment. 21 Nelson, however, did not present the doctors’ functional capacity assessments to 22 the vocational expert; instead, Nelson offered the checkbox notations the doctors had 23 made in Section I of the MRFCA. (Id. at 314–15, 447–48, 67–69.) There, Drs. 24 Tyutyulkova and Fair checked the box “moderate limitation” for several activities. (Id. at 25 314–15, 447–48.) The ALJ did not, however, rely on these notations for his conclusion— 26 he relied on the written opinion of the physicians that appeared at the end of their report. 27 4 28 That Dr. Tyutyulkova wrote her functional capacity assessment in a separate document and not in the provided form does not alter this analysis. -8- 1 Indeed, there is good reason for the ALJ to place greater weight on the final 2 conclusions in Part III over the checkboxes in Part I. SSA’s Program Operations Manual 3 System (“POMS”), § DI 24510.060,, 4 describes how the MRFCA form functions. POMS designates Section I as “merely a 5 worksheet to aid in deciding the presence and degree of functional limitations and the 6 adequacy of documentation” and notes that it “does not constitute the RFC assessment.” 7 Id. In contrast, Section III “is for recording the mental RFC determination. It is in this 8 section that the actual mental RFC assessment is recorded, explaining the conclusions 9 indicated in section I, in terms of the extent to which these mental capacities or functions 10 could or could not be performed in work settings.” Id. Section III, in other words, is not 11 direct evidence of the existence of disability. While the POMS does not carry the force of 12 law, it has persuasive authority and sheds light on how the SSA intends the MRFCA to 13 function. See Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of 14 Keffeler, 537 U.S. 371, 385 (2003) (stating that POMS “warrant[s] respect”); Warre v. 15 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1005 (9th Cir. 2006) (stating that POMS “is 16 persuasive authority”). 17 The ALJ did not err by relying on the conclusions of Drs. Tyutyulkova and Fair in 18 Section III over the checkbox notations in Section I. See Molina, 674 F.3d at 1111 19 (stating that the ALJ may “reject[ ] . . . check-off reports that [do] not contain any 20 explanation of the bases of their conclusions”). The conclusions in Section III represent 21 the most accurate picture of the physicians’ opinions and those entitled to the greatest 22 weight. 23 B. The Treating Physician and Nurse Practitioner 24 Nelson claimed that the ALJ improperly discounted the opinions of her treating 25 psychiatrist and nurse practitioner on the effect of her symptoms. The regulations impose 26 a hierarchy for medical opinions offered by licensed doctors. The opinion of a treating 27 physician is given more weight than non-treating and non-examining medical sources. 28 See Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 -9- 1 (9th Cir. 1995); 20 C.F.R. § 404.1527. When the treating doctor’s opinion is 2 uncontradicted, the ALJ can reject those conclusions only for “‘clear and convincing’ 3 reasons.” Lester, 81 F.3d at 830 (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th 4 Cir. 1991)). Even when another doctor disagrees with the treating doctor’s opinion, as is 5 the case here with Drs. Tyutyulkova and Fair, the ALJ can reject the treating doctor’s 6 conclusions only when he provides “‘specific and legitimate reasons’ supported by 7 substantial evidence in the record for so doing.” Id. (quoting Murray v. Heckler, 722 F.2d 8 499, 502 (9th Cir. 1983)). 9 Opinions on the ultimate issue of disability, however, are not considered medical 10 opinions, and do not receive the same level of deference according to the SSA 11 regulations. 20 C.F.R. § 404.1527(d). That issue is reserved for the ALJ. Id. Although the 12 ALJ is not “bound” by a controverted opinion of the treating physician on disability, he 13 can reject that opinion only by citing “specific and legitimate reasons supported by 14 substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); 15 Lester, 81 F.3d at 830. In reality, then, the “reasons for rejecting a treating doctor’s 16 credible opinion on disability are comparable to those required for rejecting a treating 17 doctor’s medical opinion.” Reddick, 157 F.3d at 725. 1. 18 Dr. Krolik 19 The ALJ addressed an opinion offered by Nelson’s treating psychiatrist, Dr. Mary 20 Krolik. (R. at 27.) Dr. Krolik filed a letter in which she diagnosed Nelson as seriously 21 mentally ill and claimed Nelson “is not able to work at this time for at least a year due to 22 her symptoms and the clinical team recommends more intensive case management and 23 clinical treatment and medication management.” (Id. at 321.) The ALJ gave two reasons 24 for giving “little weight” to the statement: (1) “[t]he assertion that the claimant is unable 25 to work is a finding reserved to the Commissioner”; and (2) “these statements are not 26 consistent with the mild to moderate assessments contained within the treatment record.”5 27 5 28 Nelson claims that the ALJ did not cite specific contradictory evidence in the paragraph devoted to analyzing Dr. Krolik’s opinion. (R. at 27.) While this is true, the - 10 - 1 (Id. at 27.) While the ALJ is correct that the law and regulations vest the ultimate 2 disability determination in him, that principle cannot serve as an independent reason to 3 reject the opinion of a treating physician because the ALJ is required to weigh that 4 opinion on disability. See Reddick, 157 F.3d at 725. 5 Nevertheless, contradiction with other medical evidence can be a specific and 6 legitimate reason for rejection. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 7 Cir. 2005) (“[W]hen evaluating conflicting medical opinions, an ALJ need not accept the 8 opinion of a doctor if that opinion is brief, conclusory, and inadequately supported by 9 clinical findings.”); Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 602 (9th Cir. 10 1999). The ALJ relies chiefly on Nelson’s Global Assessment of Functioning (“GAF”) 11 scores as contradictory evidence. GAF scores serve as “a rough estimate of an 12 individual’s psychological, social, and occupational functioning used to reflect the 13 individual’s need for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 14 1998). A GAF score of 51–60 indicates moderate symptoms or moderate difficulty in 15 social, occupational, or school functioning, while a score of 61–70 reflects mild 16 symptoms or some difficulty in social, occupational, or school functioning, but generally 17 functioning pretty well. See Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of 18 Mental Disorders 34 (4th ed. 2000). During the relevant period of alleged disability, 19 Nelson’s scores ranged from 55 to 65. (R. at 337, 523, 542, 545, 550, 552, 555, 557, 560, 20 566, 571, 574, 582, 588.) Those scores reflect moderate to mild symptoms. 21 The Ninth Circuit has countenanced an ALJ’s reliance on GAF scores as evidence 22 that contradicts a physician’s opinion of severe limitation. See Melton v. Comm’r of Soc. 23 Sec. Admin., 442 F. App’x 339, 341 (9th Cir. 2011). And Nelson’s GAF scores could 24 reasonably be perceived as inconsistent with Dr. Krolik’s brief opinion that Nelson was 25 unable to perform any work. Those scores show moderate to mild symptoms, but nothing 26 that would be disabling. 27 ALJ appears to reference his earlier discussion of the GAF scores and opinions of Drs. Tyutyulkova and Fair. (Id. (referring to the “mild to moderate assessments contained in the treatment record”). 28 - 11 - 1 Furthermore, the ALJ contrasted Dr. Krolik’s opinion on the limiting effects of 2 Nelson’s symptoms with those of Drs. Tyutyulkova and Fair. (R. at 26–27.) While “[t]he 3 opinion of a nonexamining physician cannot by itself constitute substantial evidence that 4 justifies the rejection of the opinion of either an examining physician or a treating 5 physician,” it can play a role in determining whether the treating physician’s opinion is 6 supported by the complete medical record. Lester, 81 F.3d at 831–32. As discussed 7 above, the opinions of Drs. Tyutyulkova and Fair contradict Dr. Krolik’s claim that 8 Nelson was unable to work. When combined with the moderate to mild symptoms that 9 appear through Nelson’s GAF scores, there is substantial evidence to support the ALJ’s 10 conclusion that Dr. Krolik’s opinion is out of line with the record evidence. 2. 11 Nurse Practitioner White 12 The ALJ also addressed an opinion offered by Nelson’s Nurse Practitioner, Pat 13 White. (R. at 27.) White offered an opinion that mirrored Dr. Krolik, (id. at 20), and the 14 ALJ rejected White’s opinion for identical reasons. Because those reasons were sufficient 15 to reject the opinion of a treating physician, they are sufficient to reject the opinion of a 16 nurse practitioner. See, e.g., SSR 06-03p (classifying nurse practitioners as non- 17 acceptable medical sources); Molina, 674 F.3d at 1111 (recognizing that the reasons for 18 discounting an opinion from a non-acceptable medical source need only be “germane” to 19 the source). 20 21 Thus there was no error in how the ALJ handled the opinions of Dr. Krolik and Nurse Practitioner White. 22 C. Nelson’s Testimony 23 Nelson claims the ALJ improperly discounted her testimony regarding the severity 24 and impact of her symptoms. The legal standard governing claimant credibility is a 25 matter of dispute between the parties. The Commissioner relies on Bunnell v. Sullivan, 26 947 F.2d 341 (9th Cir. 1991) (en banc), where the Ninth Circuit set out to “determine the 27 appropriate standard for evaluating subjective complaints of pain in Social Security 28 disability cases.” Id. at 342. Bunnell stated that once there has been objective medical - 12 - 1 evidence of an underlying impairment, the ALJ must make specific findings, supported 2 by the record, for why he rejected the claimant’s testimony on the severity of the pain. Id. 3 at 345–46. This is to ensure that the ALJ “did not ‘arbitrarily discredit a claimant’s 4 testimony regarding pain.’” Id. (quoting Elam v. R.R. Retirement Bd., 921 F.2d 1210, 5 1215 (9th Cir. 1991)). Thus the Commissioner asserts that the standard governing 6 claimant credibility is a specific finding standard, which it claims is more in line with the 7 overall “substantial evidence” standard that governs these cases. 8 Subsequent panels of the Ninth Circuit, however, have universally held that if 9 there is objective medical evidence of an underlying impairment, “and there is no 10 evidence of malingering, then the ALJ must give ‘specific, clear and convincing reasons’ 11 in order to reject the claimant’s testimony about the severity of the symptoms.” Molina, 12 674 F.3d at 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)); see 13 also, e.g., Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The Commissioner 14 claims that these cases have overruled the standard articulated in Bunnell in violation of 15 the Ninth Circuit rule that only en banc panels can overrule existing precedent. See 16 United States v. Camper, 66 F.3d 229, 232 (9th Cir. 1995). That is not the case. Bunnell 17 articulated a general standard for dealing with claimant testimony. The many subsequent 18 cases have addressed a subset of cases where there is also no evidence of claimant 19 malingering. They have articulated a “clear and convincing” standard for those situations. 20 This Court does not judge the propriety of that standard, which is clearly the standard that 21 governs claimant credibility in this circuit. Accordingly, the ALJ’s reasons for finding 22 Nelson’s testimony incredible must be “clear and convincing.” 23 The ALJ did not find Nelson’s testimony regarding the extent and severity of her 24 symptoms credible for several reasons. First, the ALJ noted that Nelson and her friend 25 “[d]escribed daily activities that are not limited to the extent one would expect, given the 26 complaints of disabling symptoms and limitations.” (R. at 25.) The record reflects that 27 Nelson frequently cooks, shops, does chores around the house, socializes, takes her dog 28 on walks, swims, attends yard sales, uses public transportation, goes to the gym, and gets - 13 - 1 along well with family, friends and neighbors. (Id. at 175–83.) While there are 2 indications that she sometimes experiences difficulty with these activities, the record 3 largely reflects that Nelson lives an active life. Of course disability claimants do not need 4 to lock themselves indoors and remain sedentary to ensure receipt of disability benefits. 5 Reddick, 157 F.3d at 722; Satterwaite v. Astrue, 781 F. Supp. 3d 898, 911 (D. Ariz. 6 2011). Yet an ALJ can rely on a claimant’s participation in such activities when their 7 description contradicts claims of a totally debilitating impairment. Molina, 674 F.3d at 8 1112–13 (citing cases); Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir. 2010) (finding that 9 “the inconsistencies in Berry’s reported symptoms and activities adequately support the 10 ALJ’s adverse credibility finding and justify his decision to discount some of Berry’s 11 subjective complaints”); Batson, 359 F.3d at 1196 (upholding ALJ’s rejection of 12 claimant’s assertion that he could not return to work when he “tends to animals, walks 13 outdoors, goes out for coffee, and visits with neighbors”). The ALJ properly did so here. 14 Nelson’s fairly active lifestyle could be seen as inconsistent with her claims of disability. 15 Nelson disputes that her activities are inconsistent with disability. “Although the 16 evidence of [Nelson’s] daily activities may also admit of an interpretation more favorable 17 to [Nelson], the ALJ’s interpretation was rational, and ‘[the Court] must uphold the 18 ALJ’s decision where the evidence is susceptible to more than one rational 19 interpretation.’” Burch v. Barnhart, 400 F.3d 676, 680–81 (9th Cir. 2005) (quoting 20 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)); see also Rollins v. Massanari, 21 261 F.3d 853, 857 (9th Cir. 2001) (“It is true that Rollins’ testimony was somewhat 22 equivocal about how regularly she was able to keep up with all of these activities, and the 23 ALJ’s interpretation of her testimony may not be the only reasonable one. But it is still a 24 reasonable interpretation and is supported by substantial evidence; thus, it is not our role 25 to second-guess it.”). This Court is not the designated forum to examine and reweigh 26 possible interpretations of the evidence. The ALJ reasonably construed the evidence of 27 Nelson’s daily activities to contradict her claims of a disabling illness. This was a clear 28 and convincing ground supported by substantial evidence for rejecting Nelson’s symptom - 14 - 1 testimony. 2 The second reason the ALJ did not credit Nelson’s claims of severe symptoms is 3 related to the first: Nelson attends school regularly. (R. at 26.) She was a full-time student 4 in 2008 and 2009 and had decent grades, although there was some evidence that she was 5 failing a class. (Id. at 328, 336, 572, 579–80.) A reasonable person could perceive 6 regular, full-time school attendance as inconsistent with a claim of total disability. While 7 Nelson expressed feelings of struggle during school, the ALJ never claimed Nelson was 8 symptom-free during that time—merely that Nelson could perform regular school 9 activities despite her symptoms. On that evidence, the ALJ could properly conclude that 10 regular, full-time school participation contradicts a claim of disabling impairment. 11 The ALJ’s third reason is that Nelson collected unemployment benefits for two 12 years after she lost her last job in 2008. (Id. at 26.) ALJ reliance on the receipt of 13 unemployment is not impermissible. See Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 14 1988) (upholding ALJ’s rejection of claimant testimony on this basis). Nelson cites an 15 SSA policy letter that instructs ALJs on how they should consider receipt of 16 unemployment benefits. The letter states that “[r]eceipt of unemployment benefits does 17 not preclude the receipt of Social Security benefits. . . . However, application for 18 unemployment benefits is evidence that the ALJ must consider together with all of the 19 medical and other evidence. Often, the underlying circumstances will be of greater 20 relevance than the mere application for and receipt of benefits.” (Doc. 13-1, Ex. B.) The 21 ALJ did not violate this policy by relying, in part, on Nelson’s receipt of unemployment 22 benefits as evidence that her symptoms did not preclude her from work. Whether simply 23 receiving unemployment benefits is a clear and convincing reason for rejecting a 24 claimant’s testimony is a question left for another day—the ALJ has promulgated other 25 clear and convincing reasons for finding Nelson’s symptom testimony incredible. 26 Finally, the ALJ cited the contradictions between Nelson’s testimony and the 27 record evidence, including her GAF scores and the effectiveness of her medication. (R. at 28 26.) Nelson has not contested the ALJ’s reliance on these factors, which also serve as - 15 - 1 clear and convincing reasons for discounting Nelson’s symptom testimony. The ALJ 2 therefore did not err in his handling of Nelson’s testimony. 3 D. 4 Nelson claims that the ALJ erred by failing to consider the Third Party Report 5 submitted by her friend, Penny Alvarez. While the ALJ did not expressly consider 6 Alvarez’s report, he cited the Third Party Report when he reviewed Nelson’s activities of 7 daily living. (Id. at 25.) He accepted and relied upon Alvarez’s descriptions of Nelson’s 8 daily activities. (Id.) The ALJ was not required to cite Alvarez by name, and his decision 9 reflects consideration of the Report. No error occurred. 10 Third Party Report CONCLUSION 11 There was no material error in the ALJ’s decision. 12 IT IS THEREFORE ORDERED that the ALJ’s decision is AFFIRMED. The 13 14 Clerk of Court is directed to enter judgment in this matter. Dated this 6th day of August, 2013. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 -

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