Crystal Krampitz v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRYSTAL L. KRAMPITZ, No. 20-35440
Plaintiff-Appellant, D.C. No. 4:18-cv-00141-JTJ
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
John T. Johnston, Magistrate Judge, Presiding
Submitted March 5, 2021**
Pasadena, California
Before: KLEINFELD, CALLAHAN, and HIGGINSON,*** Circuit Judges.
Crystal L. Krampitz timely appeals the district court’s decision affirming the
Commissioner’s denial of her applications for disability insurance benefits under
*
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 Stephen A. Higginson, United States Circuit Judge for
the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
Title II of the Social Security Act and supplemental security income under Title
XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291.
Reviewing the district court’s affirmance de novo to determine whether the
administrative law judge’s (ALJ) decision was supported by substantial evidence
and lacking in legal error, Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012),
we affirm.
1. We decline to consider whether the ALJ erred in omitting Krampitz’s
borderline intellectual functioning (BIF) and post-traumatic stress disorder (PTSD)
diagnoses from his step two analysis because this purported error could not have
prejudiced Krampitz.
Step two of the Commissioner’s disability determination process is “merely
a threshold determination meant to screen out weak claims.” Buck v. Berryhill, 869
F.3d 1040, 1048 (9th Cir. 2017) (citing Bowen v. Yuckert, 482 U.S. 137, 146–47
(1987)). The ALJ resolved step two in Krampitz’s favor by finding that she had
severe impairments. Any alleged error in omitting BIF and PTSD from this
analysis thus could not have prejudiced Krampitz. See id. at 1048–49.
2. Krampitz argues that the ALJ erred by discounting the medical opinions
of her treating physicians in determining her residual functional capacity (RFC).
We find no such error.
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The ALJ gave germane reasons, supported by substantial evidence, for
discounting the co-signed opinion of counselors Melanie Fisher and Elizabeth
Dyrdahl, who are not “acceptable medical source[s].” See 20 C.F.R.
§§ 404.1502(a), 416.902(a); Molina, 674 F.3d at 1111. Substantial evidence
supports the ALJ’s conclusion that Dyrdahl and Fisher’s opinion deeming
Krampitz unable to work was undermined by their notes suggesting less severe
findings. See Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (“If the evidence
‘is susceptible to more than one rational interpretation, it is the ALJ’s conclusion
that must be upheld.’” (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
2005))). Likewise, the record supports the ALJ’s assessment that Dyrdahl and
Fisher did not provide function-by-function limitations. See Morgan v. Comm’r
Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (affirming the denial of
benefits where an ALJ discounted the opinion of a treating physician because the
reports did not show how the claimant’s symptoms translated into “specific
functional deficits which preclude work activity”).
Nor did the ALJ err in discounting the opinion of Dr. Mark Mozer. Krampitz
does not identify any conflict between the ALJ’s RFC determination and Dr.
Mozer’s opinion that is adverse to her. Dr. Rena Popma and Dr. Mark Berkowitz,
whose opinions were credited by the ALJ, each relied on Dr. Mozer’s opinion and
assessed this opinion as being consistent with their findings. Consistent with the
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ALJ’s RFC determination, Dr. Mozer opined that Krampitz was capable of doing
unskilled work. Moreover, the ALJ specified that his RFC determination was more
restrictive than Dr. Mozer’s opinion. Krampitz thus fails to show error on this
basis. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (“Clear and
convincing reasons are not required, however, when there is no conflict.”).
The ALJ did not err by declining to discuss the opinions of Dr. David
Knierim, Dr. Donna Smith, Dr. Kevin Ross, Dr. Summera Qamar, physician
assistant Timothy Forshay, Dr. Jennifer Fowler, Dr. Thomas Gray, nurse Kari
Wiens, vocational counselor Celina Cline, nurse Kathryn Adams, or social worker
B. Tweedy. These evaluations neither identified any specific functional limitations
nor conflicted with the ALJ’s RFC determination and thus did not require
discussion in the ALJ’s opinion. See Turner v. Comm’r Soc. Sec. Admin., 613 F.3d
1217, 1223 (9th Cir. 2010) (concluding that an ALJ did not need to provide clear
and convincing reasons for rejecting a medical opinion that did not identify any
specific limitations or conflict with the ALJ’s RFC determination); Howard ex rel.
Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (reasoning that “the ALJ is
not required to discuss evidence that is neither significant nor probative”).
We do not consider whether the ALJ erred by discounting the Global
Assessment of Functioning (GAF) scores in the record. To the extent that Krampitz
asserts error on this basis, such error could not have been prejudicial because GAF
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scores, standing alone, do not control disability determinations; the GAF scores in
the record varied greatly; and these scores were not accompanied by specific
limitation findings. See Garrison v. Colvin, 759 F.3d 995, 1002 n.4 (9th Cir. 2014)
(noting that “GAF scores, standing alone, do not control determinations of whether
a person’s mental impairments rise to the level of a disability,” but may be a
“useful measurement”); Molina, 674 F.3d at 1115 (providing that an error is
harmless if it is “inconsequential to the ultimate nondisability determination”).
3. Krampitz next asserts that the ALJ erred in discounting mental health
diagnoses that were based upon her subjective complaints. There is no indication in
the record, however, that the ALJ did in fact discount any medical opinions or
diagnoses because they were based upon Krampitz’s self-reported symptoms. We
therefore find no error on this basis.
4. The ALJ properly discredited Krampitz’s testimony regarding the severity
of her symptoms.
Where, as here, an ALJ determines that a claimant has shown that an
impairment could reasonably be expected to produce her alleged symptoms and
there is no evidence of malingering, the ALJ may only reject the claimant’s
testimony about the severity of her symptoms by providing “specific, clear and
convincing reasons for doing so.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “[T]he
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ALJ must specifically identify the testimony she or he finds not to be credible and
must explain what evidence undermines the testimony.” Brown-Hunter v. Colvin,
806 F.3d 487, 493 (9th Cir. 2015) (quoting Holohan v. Massanari, 246 F.3d 1195,
1208 (9th Cir. 2001)).
The ALJ met this bar here. Substantial evidence supports the ALJ’s
conclusion that the medical evidence in the record undermined Krampitz’s
testimony concerning the severity of her symptoms. The record also supports that,
as noted by the ALJ, Krampitz held several part-time positions during the relevant
period.
5. We decline to consider Krampitz’s argument, which she raises for the first
time on appeal, that the ALJ erred by failing to consider the effects of her medical
treatment in assessing her RFC. See Greger v. Barnhart, 464 F.3d 968, 973 (9th
Cir. 2006) (noting that, absent certain exceptional circumstances, this court will not
consider an issue raised for the first time on appeal).
6. Krampitz asserts that the ALJ erred by failing to incorporate the effects of
her medical treatment, as well as her BIF and PTSD diagnoses, into the
hypothetical question posed to the vocational expert. “In order for the testimony of
a [vocational expert] to be considered reliable, the hypothetical posed must include
all of the claimant’s functional limitations, both physical and mental[,] supported
by the record.” Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (internal
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quotation marks omitted) (quoting Flores v. Shalala, 49 F.3d 562, 570–71 (9th Cir.
1995)). Krampitz fails to show that the ALJ’s RFC determination, which was
included in the hypothetical to the vocational expert, did not incorporate all
functional limitations supported by the record. The ALJ did not err on this basis.
AFFIRMED.
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