Catherine Orcutt v. Andrew Saul ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 10 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHERINE W. ORCUTT, No. 19-16078
Plaintiff-Appellant, D.C. No.
2:15-cv-02474-JCM-PAL
v.
ANDREW M. SAUL, Commissioner of MEMORANDUM*
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted February 10, 2021
San Francisco, California
Before: CHRISTEN and BADE, Circuit Judges, and FEINERMAN,** District
Judge.
Plaintiff Catherine Orcutt appeals the district court’s order affirming the
Commissioner of Social Security’s denial of her application for Social Security
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
disability benefits. We review de novo and may set aside a denial of benefits only
if it is unsupported by substantial evidence or the administrative law judge (ALJ)
committed legal error. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). We
have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm. Because the parties
are familiar with the facts, we recite only those necessary to resolve the arguments
on appeal.
1. Orcutt argues the ALJ erred by discounting the opinion of her treating
physician, Dr. Robinson. “Although a treating physician’s opinion is generally
afforded the greatest weight in disability cases, it is not binding on an ALJ with
respect to the existence of an impairment or the ultimate determination of
disability.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.
2004) (quoting Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)). “The
ALJ may disregard the treating physician’s opinion whether or not that opinion is
contradicted,” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989), but “must
provide ‘specific and legitimate’ reasons for rejecting the opinion of a treating
physician,” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting
Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995)).
The ALJ found that Dr. Robinson’s opinion was not supported by his own
objective findings, vague, and inconsistent with Orcutt’s daily activities. Dr.
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Robinson’s examination notes from 2007 through 2012 repeatedly reflected that
Orcutt walked well with a normal gait and presented normal station, reflex, motor,
and sensory responses. Although Dr. Robinson consistently noted that Orcutt
experienced pain and tenderness around the T7 vertebra, his examination findings
are not consistent with the degree of disability Orcutt claims. See id. Moreover,
the objective medical evidence in the record shows that Orcutt received significant
relief from her symptoms with interlaminar nerve block injections and the relief
lasted for periods of up to twelve weeks. We conclude the ALJ gave specific and
legitimate reasons for discounting Dr. Robinson’s opinion.
2. In the district court, Orcutt did not challenge the weight given to the
opinions of Dr. Krutulis or Nurse Practitioner Landcastle. Assuming these
arguments are not waived, we conclude the ALJ did not erroneously weigh these
two opinions. As with Dr. Robinson’s opinion, the ALJ permissibly discounted the
opinions because they were inconsistent with other evidence in the record.
3. Orcutt also argues the ALJ erred by discounting her subjective
symptom testimony. An ALJ must complete a two-step analysis to determine
whether a claimant’s symptom testimony is credible. Molina v. Astrue, 674 F.3d
1104, 1112 (9th Cir. 2012). First, the ALJ determines whether the claimant
presented “objective medical evidence of an underlying impairment [that] could
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reasonably be expected to produce the [claimant’s] pain or other symptoms
alleged.” Id. (internal citation omitted). Second, if the ALJ finds no evidence of
malingering, the ALJ may reject the claimant’s symptom testimony by providing
“specific, clear and convincing reasons” for doing so. Id. (internal citation and
quotation marks omitted).
At step two, the ALJ determined Orcutt’s testimony that her limitations
would preclude her from working was inconsistent with objective clinical findings,
internally inconsistent, and exaggerated. As discussed, the objective medical
evidence showed normal motor and sensory functions despite Orcutt’s reports of
pain and tenderness around T7. The evidence also showed that the injections she
received provided significant reduction in pain for up to twelve weeks at a time.
Though she testified her pain precluded her from working, Orcutt testified that she
had looked for other accounting jobs, and was working on a part-time basis at the
time of her 2013 hearing. We conclude the ALJ provided sufficiently specific,
clear and convincing reasons for discounting Orcutt’s testimony. See Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the ALJ’s credibility finding is
supported by substantial evidence in the record, we may not engage in second-
guessing.”).
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4. Orcutt’s argument that the ALJ’s residual functional capacity
determination was unsupported by substantial evidence depends on her arguments
that the ALJ erred by discounting the opinions of Dr. Robinson, Dr. Krutulis, and
Nurse Practitioner Landcastle. Because we conclude the ALJ did not erroneously
weigh those medical opinions, we conclude the ALJ’s residual functional capacity
determination was supported by substantial evidence.
AFFIRMED.
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