Salvatore Scianna v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SALVATORE SCIANNA, No. 20-15902
Plaintiff-Appellant, D.C. No. 2:18-cv-00830-SMB
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Susan Brnovich, District Judge, Presiding
Submitted March 3, 2021**
Phoenix, Arizona
Before: HAWKINS and BUMATAY, Circuit Judges, and CARDONE, *** District
Judge.
*
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).
***
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
Salvatore Scianna appeals the district court’s decision affirming the
Commissioner of Social Security’s finding that he is no longer entitled to Disability
Insurance Benefits under the Social Security Act. We have jurisdiction under 42
U.S.C. § 405(g) and 28 U.S.C. § 1291. We review the district court’s order affirming
the denial of social security benefits by the administrative law judge (“ALJ”) de
novo and reverse only if the ALJ’s decision was not supported by substantial
evidence or is based on legal error. Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir.
2014). Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th
Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). We
affirm.
1. Substantial evidence supports the ALJ’s weighing of the medical opinion
evidence. The ALJ found that Dr. Purcell’s opinion was inconsistent with the
medical evidence on record. The ALJ noted that Dr. Purcell’s opinion was
discordant with the observations of Dr. Gomez, Dr. Purcell’s own observations, and
the results of an electrodiagnostic (“EMG”) study. For example, Dr. Purcell opined
that Scianna was “totally disabled,” but Dr. Gomez’s examination revealed no spinal
deformity and a full and painless range of motion in all but one extremity.
Additionally, the EMG demonstrated no evidence of nerve damage to his injured
leg. Dr. Purcell himself diagnosed no instability in Scianna’s knee, ankle, or patella,
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and only mild pain associated with his right patella. See Tommasetti v. Astrue, 533
F.3d 1035, 1041 (9th Cir. 2008) (holding that incongruity between a doctor’s opinion
and the medical record provides a “specific and legitimate reason[] for rejecting” the
doctor’s opinion).
The ALJ also had ample reason to credit the opinions of Drs. Goodrich and
Gomez. “Although the contrary opinion of a non-examining medical expert does
not alone constitute a specific, legitimate reason for rejecting a treating or examining
physician’s opinion, it may constitute substantial evidence when it is consistent with
other independent evidence in the record.” Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9th Cir. 2001). For example, the ALJ found the opinion of Dr. Goodrich, who
concluded that Scianna could perform light work, was more consistent with the
medical record, including his minimal treatment history and daily activities. See 20
C.F.R. § 404.1527(c)(4)1 (“Generally, the more consistent a medical opinion is with
the record as a whole, the more weight we will give to that medical opinion.”).
2. Substantial evidence supports the ALJ’s “specific, clear and convincing
reasons” for discounting Scianna’s own testimony on his limitations. See Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Vasquez v. Astrue, 572 F.3d
1
The Commissioner published final rules titled “Revisions to Rules
Regarding the Evaluation of Medical Evidence” on January 18, 2017. 82 Fed. Reg.
5844. These rules became effective on March 27, 2017 and do not apply to the
present case, the decision in which was issued by the ALJ on January 25, 2017.
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586, 591 (9th Cir. 2009). The ALJ noted the contradictions between Scianna’s
testimony and the objective medical evidence in the record. For example, while
Scianna claimed limited mobility in both legs, Dr. Gomez’s findings showed a
normal range of motion in the left leg and normal strength in all but the right leg
which showed “only 4/5 strength to the right knee flexion and only 4/5 strength to
right ankle dorsiflexion and plantar flexion.” See Carmickle v. Comm’r, SSA, 533
F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a
sufficient basis for rejecting the claimant’s subjective testimony.”). Additionally,
the ALJ noted Scianna’s scant treatment record included no treatment history
between 2014 and 2017. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007)
(“[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony
regarding severity of an impairment.” (quoting Johnson v. Shalala, 60 F.3d 1428, 1434
(9th Cir. 1995)). Despite Scianna’s claims to limited daily activity, the evidence
showed that he is able to attend to his personal care needs, drive a car, keep medical
appointments, swim, and exercise by walking thirty to forty-five minutes at a time.
Molina, 674 F.3d at 1112 (In evaluating the disability claimant’s testimony, an ALJ
may consider “whether the claimant engages in daily activities inconsistent with the
alleged symptoms.” (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir.
2007)).
AFFIRMED.
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