Brad Belknap v. Michael Astrue , 364 F. App'x 353 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRAD BELKNAP, No. 09-35223
Plaintiff - Appellant, D.C. No. 3:07-cv-01219-PK
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted February 1, 2010 **
Seattle, Washington
Before: RYMER, GOULD and BYBEE, Circuit Judges.
Brad Belknap appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Belknap’s application for Social
Security Disability insurance benefits under Title II of the Social Security Act. In
*
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).
his application, Belknap alleged disability beginning in 2002 due to degenerative
disc disease, depression, anxiety, and post-traumatic stress disorder (“PTSD”). We
have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Belknap argues that the ALJ erred by not concluding at step two that he was
severely impaired by PTSD and migraines. If there was error in this respect, it was
at most harmless error because the ALJ extensively discussed the medical evidence
when determining Belknap’s residual functional capacity (“RFC”).1 See Burch v.
Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). In determining the RFC, the ALJ
properly considered functional limitations and restrictions arising from all of
Belknap’s medically determinable impairments. See Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 883 (9th Cir. 2006). Belknap’s purported migraines were not a
medically determinable impairment because there was no medical diagnosis and
the only assessment of migraines came from nurse practitioner David Lampert,
who the ALJ noted was not an acceptable medical source. See 20 C.F.R.
§ 404.1513(a). Belknap’s purported PTSD was not a medically determinable
impairment because, as the ALJ noted, there was no medical diagnosis of PTSD in
the record other than Belknap’s self-reports. The only assessment of PTSD, as
1
The ALJ’s conclusion that Belknap was not severely impaired by
anxiety is supported by substantial evidence in the record.
2
Belknap’s representative admitted at the hearing, came from social worker Linda
Spangler, who was not an acceptable medical source. See id. The ALJ also gave
clear and convincing reasons for rejecting Dr. Bates’s assertion that Belknap had
PTSD, stating that Dr. Bates’s PTSD assertion was based not on a diagnosis of
PTSD but on Belknap’s self-reporting, did not describe Belknap’s symptoms, and
was not supported by Dr. Bates’s treatment notes. See Bayliss v. Barnhart, 427
F.3d 1211, 1216 (9th Cir. 2005). Finally, Dr. Bates’s post-decision letter asserting
that Belknap had PTSD was conclusory and immaterial so no remand is required.
See Burton v. Heckler, 724 F.2d 1415, 1417 (9th Cir. 1984).
Belknap next argues that the ALJ improperly rejected Dr. Bates’s opinion to
the effect that Belknap could not work primarily because of his PTSD and was
disabled once his PTSD and anxiety were accounted for. This opinion was
permissibly rejected within the ALJ’s proper authority to weigh conflicting
medical evidence. See Thomas v. Barnhart, 278 F.3d 947, 956–57 (9th Cir. 2002).
Dr. Bates’s disability opinion was controverted by Dr. Turner’s assessments, based
on the “GAF” scores, indicating that Belknap had only transient or mild symptoms.
See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). The ALJ rejected Dr.
Bates’s opinion for specific and legitimate reasons supported by substantial
evidence. See id. The ALJ reasoned that Dr. Bates’s disability opinion lacked
3
foundation because it was predicated on Belknap’s purported PTSD, and was
entitled to less weight than Dr. Turner’s assessments because, unlike Dr. Turner,
Dr. Bates was not a mental health specialist.2
Belknap next argues that the ALJ erred by discrediting to some extent the
testimony of Belknap, his wife, and Spangler. We disagree. The ALJ provided
clear and convincing reasons supported by substantial evidence for rejecting
Belknap’s testimony. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,
599 (9th Cir. 1999). The ALJ noted that Belknap’s activities, including building
his house and traveling cross-country by Greyhound bus to Louisiana, were
inconsistent with the scope of his claimed limitations. The ALJ also noted that
Belknap provided inconsistent accounts concerning his level of incapacitation after
a car accident. The ALJ also provided germane reasons for rejecting the lay
witness testimony of Spangler and Belknap’s wife. See Lewis v. Apfel, 236 F.3d
503, 511 (9th Cir. 2001). Spangler’s testimony was inconsistent with Dr. Turner’s
medical assessments and was internally inconsistent. Belknap’s wife’s accounts of
Belknap’s limitations did not acknowledge Belknap’s house-building activity, and
2
The Commissioner “generally give[s] more weight to the opinion of a
specialist about medical issues related to his or her area of specialty than to the
opinion of a source who is not a specialist.” 20 C.F.R. § 404.1527(d)(5).
4
her testimony that Belknap did not use public transportation was contradicted by
his travel to Louisiana by bus.
Based on the foregoing, the hypothetical that the ALJ posed to the
vocational expert included “all the limitations and restrictions of [Belknap]” that
the ALJ found, and was therefore proper.3 Valentine v. Comm’r Soc. Sec. Admin.,
574 F.3d 685, 690 (9th Cir. 2009) (emphasis omitted).
AFFIRMED.
3
The limitation Dr. Bates noted concerning Belknap’s inability to
stoop, bend, or lift was properly excluded from the hypothetical because the ALJ
concluded that the MRI showed that Belknap’s spine was not fractured and the
MRI did not support the degree of impairment alleged by Belknap.
5