Lorna Dorrell v. Carolyn Colvin , 670 F. App'x 480 ( 2016 )

FILED
NOT FOR PUBLICATION
NOV 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORNA R. DORRELL, No. 14-17373
Plaintiff-Appellant, D.C. No. 2:13-cv-01227-CMK
v.
MEMORANDUM *
CAROLYN W. COLVIN, Commissioner
Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Craig Kellison, Magistrate Judge, Presiding
Submitted October 19, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.
Lorna Dorrell appeals the district court’s order granting the Social Security
Commissioner’s cross-motion for summary judgment and denying disability
*
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).
insurance benefits under Title II of the Social Security Act. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We affirm the district court judgment.
First, substantial evidence supported the administrative law judge’s (“ALJ”)
determination that Dorrell’s depression was not medically severe. Although the
record established that Dorrell had a long history of depression, the record also
established that her depression was treatable and responsive to medication.
Second, the ALJ gave specific, clear, and convincing reasons for finding
Dorrell less than credible as to the severity of her migraine headaches. In particular,
the ALJ noted that the migraine symptoms Dorrell described appeared exaggerated
given her daily activities and the significant gaps in treatment for Dorrell’s migraines
as reflected in the record. See Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007)
(listing factors “that an ALJ may consider in weighing a claimant’s credibility” to
include inconsistencies between testimony and conduct, daily activities, and
unexplained, or inadequately explained, failure to seek treatment).
Third, the ALJ fairly represented Dorrell’s sister’s testimony. Taken as a
whole, Dorrell’s sister’s observations corroborated other accounts of Dorrell’s daily
activities and did not necessarily support greater residual functional limitations. See
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (“We must uphold the ALJ’s
decision where the evidence is susceptible to more than one rational interpretation.”).
2
Therefore, substantial evidence supported the ALJ’s decision to exclude
limitations related to depression and migraines in the hypothetical posed to the
vocational expert and when assessing Dorrell’s residual functional capacity. See
Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001) (“An ALJ must propose a
hypothetical that is based on medical assumptions supported by substantial evidence
in the record that reflects each of the claimant’s limitations.”). Because the medical
opinions that described Dorrell’s severe migraines were based on Dorrell’s subjective
reports, no reasonable ALJ would credit the medical opinions after finding Dorrell’s
subjective reports of severity not credible. Any error was harmless. Stout v. Comm’r
of Soc. Sec., 454 F.3d 1050, 1056 (9th Cir. 2006) (explaining that error is harmless if
the reviewing court “can confidently conclude that no reasonable ALJ, when fully
crediting the testimony, could have reached a different disability determination”).
In sum, the district court properly granted the Social Security Commissioner’s
cross-motion for summary judgment.
AFFIRMED.
1
3
FILED
Lorna R. Dorrell v Colvin 14-17373
NOV 02 2016
THOMAS, Chief Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Although the ALJ’s findings that Dorrell’s depression was not severe
enough to prevent her from working was supported by substantial evidence and
free from legal error, the ALJ did not explain the decision to exclude Dorrell’s
migraine headaches from the limitations in the residual functional capacity in spite
of evidence in the medical records indicating that Dorrell had severe migraine
headaches. This failure to provide a reasoned basis for rejecting two treating
physicians’ opinions regarding Dorrell’s headaches constituted legal error. See
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (“[T]he Commissioner must
provide ‘clear and convincing reasons’ for rejecting the uncontradicted opinion of
an examining physician.”). Furthermore, unless a reviewing court can “confidently
conclude that no reasonable ALJ, when fully crediting the testimony, could have
reached a different disability determination,” the error cannot be harmless. Stout v.
Comm’r of Soc. Sec., 454 F.3d 1050, 1056 (9th Cir. 2006). Indeed, the error was
not harmless here.
Therefore, I respectfully dissent.