Sadie Burkett v. Nancy Berryhill ( 2018 )

FILED
NOT FOR PUBLICATION
MAY 01 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SADIE C. BURKETT, No. 17-35180
Plaintiff-Appellant, D.C. No. 3:16-cv-05168-JPD
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue, Magistrate Judge, Presiding
Submitted April 27, 2018**
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
Sadie Burkett appeals the district court’s affirmance of the Commissioner of
Social Security’s denial of her application for supplemental security income under
*
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).
Title XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
I. Dr. Lewis’s Opinion
The ALJ did not err in evaluating the opinion of examining psychologist Dr.
Lewis. The ALJ assigned Dr. Lewis’s opinion “significant weight” and explained
that she incorporated the particulars of Dr. Lewis’s opinion in Burkett’s residual
functional capacity (“RFC”). The ALJ also emphasized that Dr. Lewis concluded
that Burkett’s moderate limitations in responding to workplace pressures did not
preclude her ability to work. Burkett has not demonstrated any conflict between the
RFC and Dr. Lewis’s opinion. See Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,
1222-23 (9th Cir. 2010).
Burkett’s argument that the ALJ violated the law of the case doctrine by
repeating the errors for which the district court reversed and remanded is not valid.
Simply put, Burkett has invoked the incorrect doctrine. “The law of the case
doctrine generally prohibits a court from considering an issue that has already been
decided by that same court or a higher court in the same case.” Stacy v. Colvin, 825
F.3d 563, 567 (9th Cir. 2016) (citation omitted). On the other hand, the rule of
mandate provides any “district court that has received the mandate of an appellate
court cannot vary or examine that mandate for any purpose other than executing
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it.” Id. at 568 (citation and internal quotation marks omitted). Here, the district
court remanded the previous ALJ’s decision in part because the ALJ had not
resolved the ambiguity in Dr. Lewis’s opinion that Burkett had moderate
limitations in certain functional areas, such as areas of interpersonal interaction,
but nonetheless stated Burkett’s psychological issues did not preclude her from
working. On remand, the ALJ explicitly resolved this ambiguity in her explanation
of how she included Dr. Lewis’s opinion in the RFC: by limiting her to simple,
routine tasks and circumscribing her social interactions. Therefore, the ALJ did not
violate either the law of the case or the rule of mandate.
II. Physician Assistant Marsh’s Opinion
The ALJ did not err in assessing the opinion of Physician Assistant Marsh.
Burkett argues that despite the ALJ assignment of significant weight to Ms.
Marsh’s opinion, the ALJ did not incorporate into the RFC Ms. Marsh’s opinion
that Burkett was unable to perform sedentary work and was limited in her ability to
bend. However, Ms. Marsh opined that Burkett would be unable to perform
sedentary work only if she did not receive treatment, and that with treatment,
which she received, she was capable of light work. The ALJ also accounted for Ms.
Marsh’s bending limitation by limiting Burkett to only occasional stooping and
crouching, which are two types of bending. See SSR 83-10, 1983 WL 31251, at *6
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(1983).
III. Nurse Practitioner Ha’s Opinion
The ALJ properly included the limitations from Nurse Practitioner Ha’s
opinion in the RFC. Burkett asserts that the ALJ failed to include in her RFC
Burkett’s limitations regarding her ability to bend and sit, and that her medication
affected her mobility. However, Ms. Ha concluded that Burkett could perform
sedentary work despite her limited ability to sit, which is consistent with the RFC.
As discussed above, the ALJ accounted for Burkett’s limited ability to bend.
Lastly, regarding Ms. Ha’s comment that Burkett’s medication affected her
mobility, Burkett did not state it caused any functional limitations beyond those
she already listed; and Burkett has not shown any significant conflict between the
RFC and Ms. Ha’s opinion.
IV. Nurse Practitioner Nixon’s Opinions
Burkett’s argument that the ALJ did not provide any legitimate reason for
discounting treating Nurse Practitioner Nixon’s opinion concerning Burkett’s
mental functional limitations lacks merit. The ALJ cited the fact that Ms. Nixon’s
opinion was inconsistent with her own treatment notes indicating: (1) that
Burkett’s mental health symptoms responded well to medication, and (2) that Ms.
Nixon had not performed any cognitive testing, which are germane reasons for
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discounting Ms. Nixon’s opinion. See Bayliss v. Barnhart, 427 F.3d 1211, 1216
(9th Cir. 2005); Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1195
(9th Cir. 2004).
The ALJ did not err by declining to discuss Ms. Nixon’s May 2011 opinion.
As the ALJ explained, the May 2011 opinion fell outside the disability period at
issue: May 19, 2009 through April 30, 2011. An ALJ is not required to discuss
evidence that is not significant or probative. See Howard ex rel. Wolff v. Barnhart,
341 F.3d 1006, 1012 (9th Cir. 2003). Evidence concerning Burkett’s symptoms
and limitations outside the alleged period of disability does not qualify as
significant or probative. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d
1155, 1165 (9th Cir. 2008).
V. Other Medical Opinion Evidence
Burkett has not shown that the ALJ erred “by failing to acknowledge that
[Physician Assistant] Reiton’s treatment note” that Burkett’s medication interferes
with her ability to drive “supports Burkett’s testimony about the side effects of her
medications.” However, the ALJ included Burkett’s inability to drive in her RFC.
Thus, Burkett has not shown that the ALJ’s RFC conflicted with her alleged
limitations.
Burkett’s contention that the “ALJ erred by failing to acknowledge that the
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medical evidence from Dr. Little and Dr. Brichard supports Burkett’s testimony
about knee pain and her limited ability to stand, walk, and sit” also lacks merit.
Burkett does not point to any functional limitations these doctors assessed that the
ALJ did not incorporate into her RFC.
VI. Burkett’s Testimony
The ALJ did not err by discounting Burkett’s testimony. The ALJ applied
the requisite two-step framework and cited specific, clear, and convincing reasons
for discounting Burkett’s claims. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th
Cir. 2017). The ALJ pointed to evidence showing that (1) Burkett exaggerated her
symptoms, (2) her medications effectively treated her symptoms, (3) she received
only conservative treatment, (4) her daily activities indicated her limitations were
not as severe as she alleged, (5) she did not always comply with her prescribed
treatment, and (6) the medical evidence did not support Burkett’s allegations. See
Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); Warre v. Comm’r Soc.
Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); Orn v. Astrue, 495 F.3d 625,
636 (9th Cir. 2007); Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008);
Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
Although Burkett challenges the ALJ’s reliance on objective medical
evidence to question the version of her testimony, the ALJ permissibly considered
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that evidence in addition to other factors when deciding to discount Burkett’s
testimony. See Bray, 554 F.3d at 1227 (explaining an ALJ may not reject a
claimant’s subjective complaints based solely on a lack of objective medical
evidence).
The ALJ’s rationale that Burkett exaggerated her symptoms is amply
supported by evidence in the record. Burkett claims she reported two side effects
from her medications—dizziness and urinary frequency—to Dr. Anuras and “was
not sure why they were not recorded in her treatment record.” Nevertheless, the
ALJ was not required to believe Burkett’s testimony on this point and offered a
reasonable interpretation of the evidence based on the record. See Revels v.
Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Burkett contends that the ALJ erred by relying on her daily activities to
discount her testimony. She claims that her activities are not inconsistent with her
testimony, and that they are not transferable to full-time work skills. This argument
lacks merit. While transferability of skills to a work setting is one way in which an
ALJ may consider a claimant’s daily activities, an ALJ may also discount claimant
testimony where reported daily activities contradict the claimant’s alleged extent of
her limitations. See Orn, 495 F.3d at 639. The ALJ cited examples in the record
illustrating inconsistencies between Burkett’s testimony concerning the limiting
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effects of her symptoms and her activities, such as comparing her testimony that
she could only walk one block to other evidence indicating she “enjoyed good
energy levels and was able to walk a lot and exercise.”
Lastly, the ALJ properly relied upon Burkett’s noncompliance with her
prescribed treatment as a ground for discounting her testimony. Although Social
Security Ruling 96-7, which was in effect at the time of the ALJ’s decision,
provides an ALJ “must not draw any inferences about an individual's symptoms
and their functional effects from a failure to seek or pursue regular medical
treatment without first considering any explanations that the individual may
provide,” Burkett fails to provide any explanation for her treatment
noncompliance.
VII. Lay Witness Testimony
The ALJ did not err by discounting lay witness testimony from Burkett’s
half-brother, Patrick Morrow. The ALJ listed several reasons and gave specific
examples for affording Mr. Morrow’s statements less weight, including that (1) his
testimony was inconsistent with the medical evidence, (2) the symptoms he alleged
Burkett suffered from responded well to medication, and (3) that Burkett’s daily
activities contradicted Mr. Morrow’s statements. While Burkett argues that the
ALJ’s analysis is not supported by substantial evidence, she again fails to argue
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this issue with sufficient specificity. She does not explain how and which portions
of the ALJ’s analysis of Mr. Morrow’s testimony the ALJ did not support with
substantial evidence. See Carmickle, 533 F.3d at 1161 n.2. In addition, despite
Burkett’s assertion that Mr. Morrow’s “observations are reasonably consistent with
the medical evidence and with Burkett’s testimony,” the ALJ proffered a
reasonable interpretation of Morrow’s evidence. See Ryan v. Comm’r Soc. Sec.
Admin., 528 F.3d 1194, 1198 (9th Cir. 2008).
The ALJ did not err by declining to discuss testimony from Burkett’s
daughter, Maudie Olmstead. The ALJ acknowledged Ms. Olmstead’s statement,
but because it “address[ed] the claimant’s functioning outside the period at issue,”
she declined to rely on it. An ALJ is not required to discuss evidence that is not
significant or probative, see Howard, 341 F.3d at 1012, and evidence relating to
Burkett’s symptoms and limitations outside the alleged period of disability does
not qualify as significant or probative. Furthermore, any error in declining to rely
on Ms. Olmstead’s testimony was harmless. Ms. Olmstead’s testimony described
the same limitations as Burkett’s own testimony.
VIII. RFC and Step Five Findings
Lastly, the ALJ did not err in formulating the RFC or making the required
Step Five findings. Burkett’s arguments turn upon her assertions of error
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concerning previous steps in the sequential evaluation. Because Burkett has not
demonstrated that the ALJ erred earlier in the analysis, these arguments lack
support. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008).
Additionally, the ALJ did not err by failing to include in the hypothetical to the
vocational expert restrictions that Burkett’s attorney added to the hypothetical
when questioning the vocational expert. See Magallanes v. Bowen, 881 F.2d 747,
756-57 (9th Cir. 1989).
AFFIRMED.
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