Peggi McIntyre v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEGGI SUE MCINTYRE, No. 20-35177
Plaintiff-Appellant, D.C. No. 2:19-cv-00019-BMM
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted March 8, 2021**
San Francisco, California
Before: WALLACE, GOULD, and FRIEDLAND, Circuit Judges.
Peggi Sue McIntyre appeals from the district court judgment affirming the
final judgment of the Commissioner of Social Security to deny her application for
disability benefits and supplemental security income under Titles II and XVI of the
*
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).
Social Security Act. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review
the district court’s order de novo and reverse only if the underlying decision from
the Administrative Law Judge (ALJ) “was not supported by substantial evidence in
the record as a whole or if the ALJ applied the wrong legal standard.” Molina v.
Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on other
grounds. We hold that substantial evidence supports the ALJ’s conclusions. We,
therefore, affirm the judgment of the district court.
McIntyre alleges her disability began on December 29, 2015. Her alleged
disability stems from degenerative disc disease, fibromyalgia, attention deficit
disorder/attention deficit hyperactivity disorder, anxiety disorder, and affective
disorder. However, she continued to work in various jobs until she was fired in May
2016. On June 23, 2016, she injured her back during a horseback riding accident
and required surgery; she has not worked since her accident. The ALJ conducted
the five-step evaluation process, pursuant to 20 C.F.R. §§ 404.1520(a) and
416.920(a), and he determined that McIntyre is not disabled within the meaning of
the Social Security Act. The ALJ found that McIntyre has the residual functional
capacity to perform light work or sedentary work with some limitations, and the ALJ
held that there are a significant number of jobs in the national economy that she can
still perform.
Substantial evidence supports the specific and legitimate reasons given by the
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ALJ to discount, in part, the opinion of McIntyre’s treating physician, Dr. Iuliano,
regarding her recovery period after her lumbar fusion surgery. See 20 C.F.R.
§ 404.1527(c). The ALJ adequately explained that Dr. Iuliano’s letter—which stated
McIntyre would be “unable to work” for an “undetermined amount of time for her
healing process” following her spinal surgery—was vague and was not intended to
express a view on McIntyre’s abilities after the limited healing period immediately
following her surgery. See Ford v. Saul, 950 F.3d 1141, 1154–55 (9th Cir. 2020).
Indeed, McIntyre’s medical records from her follow-up appointments with Dr.
Iuliano after her accident demonstrate that her condition had begun to improve. In
addition, the separate medical opinion from the non-treating physician, Dr. Stevick,
supports the finding that McIntyre could perform light work with limitations after
her gradual recovery from surgery. We hold that the ALJ had discretion to reject
McIntyre’s broad reading of Dr. Iuliano’s letter and of his approval of a 12-month
disabled parking permit, and that the ALJ provided germane reasons for doing so.
The ALJ also offered specific, clear, and convincing reasons to discount
McIntyre’s testimony as to her “subjective pain or the intensity of [her] symptoms.”
Molina, 674 F.3d at 1112. For example, McIntyre’s testimony about her mental
health and physical limitations did not correspond with her demeanor, her statements
to her various treating physicians, nor the medical evidence in the record, including
evidence from non-treating physicians. See Carmickle v. Comm’r Soc. Sec. Admin,
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533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a
sufficient basis for rejecting the claimant’s subjective testimony”).
Moreover, McIntyre had acknowledged in previous discussions with her
physicians that her long-standing, pre-accident physical and mental health
conditions were marginally improved with medication and physical therapy when
she complied with treatment, or at least had not prevented her from working up to
30 hours a week in the period immediately preceding her accident. See Wellington
v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“Such evidence of medical treatment
successfully relieving symptoms can undermine a claim of disability”); see also
Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 1988) (observing that a claimant’s
health condition “had remained constant for a number of years . . . [but] had not
prevented her from working over that time”). Regardless, the ALJ accepted
McIntyre’s symptom testimony, in part, when it corresponded with objective,
documented evidence because he restricted McIntyre to light or sedentary work with
additional restrictions.
Substantial evidence supports the ALJ’s hypotheticals posed to the vocational
expert (VE) as well. Contrary to McIntyre’s argument, the ALJ did not pose an
incomplete hypothetical because he did not include her requested additional
limitations; his hypotheticals included all limitations supported by the properly
weighted medical opinions and objective evidence. The ALJ properly discredited
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the evidence and subjective testimony that supported McIntyre’s further requested
limitations. See Magallanes v. Bowen, 881 F.2d 747, 756–57 (9th Cir. 1989)
(holding that an ALJ’s hypotheticals need not include limitations not supported by
substantial evidence). Nevertheless, the ALJ still received testimony from the
vocational expert regarding the alternative residual functional capacity restriction of
sedentary work, which better aligned with McIntyre’s requested limitations, and held
that there are a substantial number of available jobs in the national economy for
McIntyre under either residual functional capacity finding.1
AFFIRMED.
1
McIntyre requested that we remand her claim to the ALJ with the direction that
payment of benefits be awarded. Even if McIntyre had successfully established that
she is entitled to remand, the appropriate remedy would be further proceedings rather
than payment of benefits due to the inconsistencies between McIntyre’s testimony
and the medical records. See Brown-Hunter v. Colvin, 806 F.3d 487, 495–96 (9th
Cir. 2015); Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1099–1102 (9th
Cir. 2014).
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