Kenneth Cornellier v. Andrew Saul ( 2020 )

FILED
NOT FOR PUBLICATION
NOV 17 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH P. CORNELLIER, No. 19-35903
Plaintiff-Appellant, D.C. No. 3:18-cv-05773-RAJ
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted October 27, 2020
Portland, Oregon
Before: GRABER and IKUTA, Circuit Judges, and BENITEZ,** District Judge.
Dissent by Judge GRABER
Kenneth Cornellier appeals from the district court judgment affirming the
final decision of the Commissioner of Social Security to deny Cornellier’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
protective application for benefits under Title II of the Social Security Act and
Cornellier’s protective application for supplemental security income under Title
XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm the judgment of the district court.
The administrative record includes extensive medical opinions and treatment
notes showing longitudinal variations in Cornellier’s condition. Reviewing the
record as a whole, and fulfilling his obligation to resolve conflicts and ambiguities
in the record, Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), the ALJ
reached conclusions supported by substantial evidence.
First, the ALJ reasonably relied on the treatment notes from treating
physician Dr. Clark-Neitzel (a treating physician working at Valley View
Medical), which frequently reported that Cornellier had “normal mental status
examinations, including normal orientation, insight, and judgment with appropriate
mood and affect,” as well as multiple treatment notes from other treating
physicians that indicated that Cornellier experienced “good therapeutic response to
treatment when he was compliant.” “We must uphold the ALJ’s decision where
the evidence is susceptible to more than one rational interpretation.” Magallanes,
881 F.2d at 750. “[C]onsider[ing] the record as a whole, weighing both the
evidence that supports and detracts” from the ALJ’s conclusion, see Martinez v.
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Heckler, 807 F.2d 771, 772 (9th Cir. 1986), we conclude that the ALJ’s decision
was supported by substantial evidence.
While giving due consideration to Dr. Clark-Neitzel’s treatment notes, the
ALJ gave specific and legitimate reasons for discounting Dr. Clark-Neitzel’s one-
page form entitled “Proof of Disability Statement,” which stated only that “the
person named above became disabled on 10/31/2016 and is unable to engage in
any substantial gainful activity,” and that the “disability is expected to continue
until 12 months.” The ALJ correctly found that this statement was “brief,
conclusory, and inadequately supported by clinical findings,” which is a
permissible basis for rejecting the opinion of any physician. Ford v. Saul, 950
F.3d 1141, 1153–54 (9th Cir. 2020). Moreover, conclusions by physicians on the
ultimate issue of disability “are not medical opinions, . . . but are, instead, opinions
on issues reserved to the Commissioner.” 20 C.F.R. § 404.1527(d).
Second, the ALJ provided specific and legitimate reasons for discounting the
findings by two examining licensed psychologists, Dr. Wingate and Dr.
Kenderdine, that Cornellier had marked limitations in performing scheduled
activities without special supervision, completing a workday without psychological
interruptions, and maintaining appropriate behavior in a work setting. The ALJ’s
explanation for this conclusion, that Cornellier had generally normal mental
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functioning, and improved with treatment, was supported by substantial evidence
in the record, including Clark-Neitzel’s longitudinal treatment notes. See 20
C.F.R. § 404.1527(c)(2)(i); Ford, 950 F.3d at 1154–55. In determining what
weight to give medical opinions, the ALJ considers a range of factors, including
the treatment relationship, the length of the treatment relationship, and
specialization, among others. 20 C.F.R. § 404.1527(c)(2)(i)–(ii). Here, the ALJ
could reasonably give more weight to the mental health findings made by Clark-
Neitzel, given that she was a treating physician (rather than an examining
psychologist), and had a long relationship with Cornellier. § 404.1527(c)(2)(i)
(stating that “the longer a treating source has treated you and the more times you
have been seen by a treating source, the more weight we will give to the source's
medical opinion”). Moreover, Clark-Neitzel was qualified to provide a medical
opinion as to Cornellier’s mental state. See Sprague v. Bowen, 812 F.2d 1226,
1232 (9th Cir. 1987). Although the ALJ did not explicitly address the moderate
limitations identified by Wingate and Kenderdine, the ALJ assessed a residual
functional capacity (RFC) that reflects those moderate limitations. See Turner v.
Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010).
The ALJ’s decision to give weight to the non-examining physician opinions
of Dr. Merrill and Dr. Vestal because they were consistent with the record was
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supported by substantial evidence. The ALJ also reasonably accounted for the
opinions of Dr. Buskirk and Dr. Stephenson regarding Cornellier’s physical and
mental impairments, by reflecting those opinions in the RFC. The ALJ gave a
germane reason, supported by substantial evidence, to discount the check box
opinion of Duane Price, who is not an “acceptable medical source.” See 20 C.F.R.
§§ 404.1502(a), 404.1527(a)(1); Molina v. Astrue, 674 F.3d 1104, 1111–12 (9th
Cir. 2012). The ALJ explained that Price’s opinion had “no accompanying
narrative explanation” and was contrary to the objective medical evidence in the
record.
The ALJ provided specific, clear, and convincing reasons to reject
Cornellier’s testimony as to the claimed severity of his symptoms. Molina, 674
F.3d at 1112–13. The ALJ rejected Cornellier’s claim that he is unable to perform
past work or other employment due to his symptoms of anxiety and depression
based on Cornellier’s normal mental status examinations and adaptive behavior, as
well as evidence that Cornellier experienced a good therapeutic response to
treatment when he is compliant. See id. Further, the ALJ relied on evidence that
Cornellier did not seek disability benefits until after he had exhausted his
unemployment benefits. Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155,
1161–62 (9th Cir. 2008). Given that claimants seeking unemployment benefits in
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Washington must aver that they are willing and able to work, Wash. Rev. Code
§ 50.20.010, the ALJ could reasonably conclude that Cornellier’s efforts to obtain
unemployment benefits cast doubt on his claims of total disability. Accordingly,
the ALJ’s reasons are supported by substantial evidence in the record.
The ALJ also gave sufficient reasons to discount the functional limitations
caused by Cornellier’s claimed physical symptoms. The ALJ determined that there
was little evidence that Cornellier received any treatment for his spine, and there
was no evidence that his back pain had deteriorated over time. This meant that
Cornellier had worked for decades with the same condition without worsening and
without any functional limitations. The ALJ also relied on objective medical
evidence that Cornellier did not have any significant hearing impairment.
The ALJ erred in disregarding lay and non-acceptable medical source
testimony, including the opinions of Dawn Lantz, Kristyn Abbott, and Walter Scott
Dilk, without comment, but this error was harmless because the testimony did not
describe any limitations beyond those described by Cornellier and other evidence
discounted by the ALJ. See Molina, 674 F.3d at 1114–17; 20 C.F.R.
§ 404.1527(f).
The ALJ’s determination of Cornellier’s limitations was supported by
substantial evidence, and the ALJ properly incorporated these limitations into an
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RFC that accounted for all such functional limitations. Stubbs-Danielson v.
Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008); see also 20 C.F.R. § 404.1545(a)(3).
The ALJ presented an appropriate hypothetical to the vocational expert based on
the proper RFC, and appropriately relied on the vocational expert’s testimony as to
Cornellier’s ability to perform past relevant work. Ghanim v. Colvin, 763 F.3d
1154, 1166 (9th Cir. 2014). Cornellier fails to carry his burden at step four to
demonstrate that he cannot perform past relevant work as actually performed and
failed to demonstrate that he stopped work “because of” his impairments. Cf. 20
C.F.R. § 404.1574(c); Pinto v. Massanari, 249 F.3d 840, 844–45 (9th Cir. 2001)
(“The claimant has the burden of proving an inability to return to his former type
of work and not just to his former job.” (cleaned up)).
AFFIRMED.
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FILED
Cornellier v. Saul, No. 19-35903
NOV 17 2020
GRABER, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent.
The ALJ found that Claimant has severe impairments: major depressive
disorder, generalized anxiety, and alcohol dependence. The ALJ failed, however,
to give appropriate weight to the examining specialists’ (Drs. Wingate and
Kenderdine) opinions, that Claimant has marked limitations, in favor of non-
examining non-specialists’ (Drs. Merrill and Vestal) opinions. The former are to
be given greater weight. 20 C.F.R. § 404.1527(c). Additionally, the ALJ gave
"little weight" to the opinion of treating physician Dr. Clark-Neitzel (a family
medicine doctor), even though a treating physician’s opinion is to be given greater
weight. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).
The ALJ also relied heavily on several normal mental status examinations
and on Claimant’s good responses to treatment. But those perfunctory notations
regarding Claimant’s "appropriate mood and affect" come from Dr. Clark-Neitzel,
who is not a mental health specialist, and, regardless, the notes are intermittent and
are consistent with the symptoms and limitations that Claimant still experiences.
See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) ("That a person
who suffers from severe panic attacks, anxiety, and depression makes some
improvement does not mean that the person’s impairments no longer seriously
affect her ability to function in a workplace."); Garrison, 759 F.3d at 1017 ("Cycles
of improvement and debilitating symptoms are a common occurrence, and in such
circumstances it is error for an ALJ to pick out a few isolated instances of
improvement over a period of months or years and to treat them as a basis for
concluding a claimant is capable of working.").
Because the ALJ weighed the medical evidence improperly, the ALJ also
failed to give clear and convincing reasons to discredit Claimant’s own testimony.
Finally, the majority opinion concedes that the ALJ erred in failing to
acknowledge the lay-witness testimony. The error was not harmless, because the
lay witnesses described limitations that were not identical to the limitations
Claimant described. Additionally, the lay-witness testimony was consistent with
Claimant’s testimony. 20 C.F.R. § 404.1529(c)(3).
For all these reasons, I would reverse and remand for a new hearing.
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