Patrick Darden v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK L. DARDEN, No. 19-35696
Plaintiff-Appellant, D.C. No. 3:18-cv-05756-RSM
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Submitted March 4, 2021**
San Francisco, California
Before: BALDOCK,*** WARDLAW, and BERZON, Circuit Judges.
Patrick L. Darden, a former truck driver, appeals the district court’s order
upholding the Social Security Administration’s denial of disability benefits. We
*
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 Bobby R. Baldock, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Panel
have jurisdiction under 28 U.S.C. § 1291. Because the decision of the
administrative law judge (“ALJ”) is supported by substantial evidence and does not
include legal error, we affirm. See, e.g., Carillo-Yeras v. Astrue, 671 F.3d 731,
734 (9th Cir. 2011).
1. The ALJ did not err when he gave no, little, or only partial weight to
the opinions of several treating and examining doctors in assessing Darden’s
residual functional capacity (“RFC”). Because the record contained conflicting
medical opinions, the ALJ was required to provide “specific and legitimate”
reasons supported by substantial evidence for discounting these opinions. Revels v.
Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005)). The ALJ met this burden as to each of the medical
opinions.
a. The ALJ did not err by giving little weight to the opinion of Darden’s
primary care physician, Dr. Cooke. The ALJ discounted Dr. Cooke’s opinion
because it was inconsistent with Darden’s own account of his daily living
activities, his history of conservative treatment, and Dr. Cooke’s own notes.
Inconsistency between the opinion of a treating physician and self-reported daily
activities or the physician’s own records is a specific and legitimate reason for
discounting a treating source opinion. See 20 C.F.R. § 404.1527(b)(4); Ford v.
Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (“A conflict between a treating
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physician’s opinion and a claimant’s activity level is a specific and legitimate
reason for rejecting the opinion.”); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th
Cir. 2008) (holding that “incongruity” between a doctor’s opinion and his own
medical records is a specific and legitimate reason for rejecting that opinion). The
record shows that Darden performed daily activities such as washing dishes,
frequently going outside, driving for up to an hour, and sitting for extended
periods; received no specialist treatment for back pain1; and experienced only
“mild pain” after using a Medrol dosepack. The ALJ also properly discounted Dr.
Cooke’s opinion for being vague. See, e.g., Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 601 (9th Cir. 1999).
b. The ALJ did not err by giving little weight to the opinion of
consultative examiner Dr. Schneider because the opinion did not provide “specific
functional limitations” that could be incorporated into the RFC assessment. Lack
of specificity regarding functional limitations is a specific and legitimate reason to
discount an opinion. See Ford, 950 F.3d at 1156.
c. The ALJ did not err by giving only some weight to the opinion of
consultative examiner Dr. Patterson. The ALJ discounted the opinion because it
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Darden argues that the ALJ erred by failing to consider that Darden could
not afford further treatment for his back pain. However, Darden did not testify that
the cost of medication or seeing a specialist prevented him from pursuing treatment
for his back pain. Rather, he indicated that Dr. Cooke never referred him to a
specialist.
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“appear[ed] to be based primarily on the claimant’s subjective reports rather than
the finding of his mental status examination” and was inconsistent with Dr.
Patterson’s own records. Because psychiatric evaluations always rely in part on
self-reports, “the rule allowing an ALJ to reject opinions based on self-reports does
not apply in the same manner to opinions regarding mental illness.” Buck v.
Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). However, the ALJ here did not
reject Dr. Patterson’s opinion because it was based on a self-report, but instead
reasonably observed that the objective findings on the mental status examination
performed by Dr. Patterson contradicted the limitations in his opinion.
d. The ALJ did not err by giving little weight to the opinions of state
examiners Dr. Kraft and Dr. Haney. Dr. Kraft and Dr. Haney were non-examining
doctors. The ALJ could thus reject their opinions “by reference to specific
evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir.
1998). The ALJ concluded that the limitations indicated in those opinions were
inconsistent with “the overall lack of mental health treatment sought by the
claimant.” Darden argues that the ALJ erred by failing to account for his inability
to afford additional treatment. However, while Darden testified that he did not
seek mental health treatment because “initially there was going to be out of
pocket” costs, he never stated that those costs were prohibitive, and he agreed that
he chose not to prioritize mental health treatment.
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2. The ALJ did not err by discounting Darden’s testimony about the
extent of his limitations. An ALJ must provide “specific, clear and convincing
reasons” for rejecting a claimant’s testimony about the severity of his symptoms.
Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014) (quoting Smolen v.
Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). The ALJ here gave three: Darden’s
testimony was internally inconsistent; Darden’s testimony conflicted with his
activities of daily living; and Darden’s testimony conflicted with his history of
conservative treatment. Although the ALJ’s conclusion that Darden’s daily
activities were consistent with sedentary work lacks evidentiary support because
none of Darden’s stated activities require lifting 10 pounds, see C.F.R. §
404.1567(a); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007), the ALJ provided
other reasons that are supported by substantial evidence and sufficient to discount
Darden’s testimony.
“[I]nconsistencies in testimony” are a permissible reason to discount a
claimant’s testimony. Orn, 495 F.3d at 636. Here, Darden was inconsistent about
whether he would be able to attend school for the equivalent of a 40-hour work
week. An ALJ may also discount a claimant’s testimony when the record shows
the claimant “responded favorably to conservative treatment” or failed to seek
aggressive treatment in a manner that undermines his claims. Tommasetti, 533
F.3d at 1039–40. The record here shows Darden received notably conservative
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treatment for both his mental and physical health disabilities. He never saw a
specialist or had injections or physical therapy for his back pain. He never sought
specialized mental health treatment and responded well to conservative ADD
medication prescribed by Dr. Cooke.
3. The ALJ did not err by discounting the lay testimony of Darden’s
mother. An ALJ may discount lay testimony for any germane reason. Diedrich v.
Berryhill, 874 F.3d 634, 640 (9th Cir. 2017). Here, the ALJ found the testimony of
Darden’s mother inconsistent with the totality of the evidence in the record and
specifically with the findings of Dr. Leinenbach and Dr. Patterson. These germane
reasons are supported by substantial evidence.
AFFIRMED.
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