John Ross, IV v. Commissioner Social Security ( 2023 )


Menu:
  •                                                                               FILED
    NOT FOR PUBLICATION
    MAR 3 2023
    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JOHN DAVID ROSS IV,                              No. 21-36043
    Plaintiff-Appellant,               D.C. No. 3:20-cv-06176-MLP
    v.
    MEMORANDUM*
    COMMISSIONER OF SOCIAL
    SECURITY ADMINISTRATION,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Western District of Washington
    Michelle L. Peterson, Magistrate Judge, Presiding
    Submitted February 13, 2023**
    Seattle, Washington
    Before: W. FLETCHER, PAEZ, and VANDYKE, Circuit Judges.
    Claimant John Ross IV (“Ross”) appeals from the district court’s ruling
    affirming the Commissioner of Social Security’s denial of his application for
    disability benefits. Ross contends that the Administrative Law Judge (“ALJ”)
    *
    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).
    improperly discounted both (1) his subjective testimony about the severity of his
    symptoms and (2) the opinions of Dr. Kim Wheeler and APRN Joe Kohn.
    We have jurisdiction pursuant to 
    28 U.S.C. § 1291
    . “We ‘review the district
    court’s order affirming the ALJ’s denial of social security benefits de novo and
    will disturb the denial of benefits only if the decision contains legal error or is not
    supported by substantial evidence.’” Lambert v. Saul, 
    980 F.3d 1266
    , 1270 (9th
    Cir. 2020) (quoting Tommasetti v. Astrue, 
    533 F.3d 1035
    , 1038 (9th Cir. 2008)
    (superseded by statute on other grounds)).
    1. In his application for benefits and his testimony before the ALJ, Ross
    stated that he could stand for only five to ten minutes and walk for only fifty to one
    hundred feet; that he experienced numbness and lack of strength in his hands; that
    his back pain caused him to lie down once or twice a day for five to thirty minutes;
    and that his depression prevented him from getting off the couch and from sleeping
    standard hours.
    Substantial evidence supports the ALJ’s finding discounting Ross’s
    statements about his symptoms. To evaluate a claimant’s testimony about their
    symptoms, the ALJ determines “whether the claimant has presented objective
    medical evidence of an underlying impairment ‘which could reasonably be
    expected to produce the pain or other symptoms alleged.’” Lingenfelter v. Astrue,
    2
    
    504 F.3d 1028
    , 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 
    947 F.2d 341
    ,
    344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). The ALJ found
    that Ross’s “medically determinable impairments could reasonably be expected to
    cause some of the alleged symptoms to some degree.” “[T]he ALJ can reject the
    claimant’s testimony about the severity of her symptoms only by offering specific,
    clear and convincing reasons for doing so.” 
    Id.
     (quoting Smolen v. Chater, 
    80 F.3d 1273
    , 1281 (9th Cir. 1996)). The ALJ offered such reasons here. He explained
    that Ross’s testimony about the severity of his pain and other symptoms was
    inconsistent with medical evidence; that Ross received conservative treatment; that
    Ross made inconsistent statements about his symptoms; and that Ross participated
    in activities inconsistent with his alleged limitations.
    The ALJ identified specific reasons why the medical records did not support
    Ross’s alleged degree of his limitations. See Burch v. Barnhart, 
    400 F.3d 676
    , 681
    (9th Cir. 2005). Medical tests and treatment notes showed “normal” results for
    Ross’s back, and his pain improved with physical adjustments and ice, heat, and
    ibruprofen. A claimant’s conservative course of medical treatment and
    unexplained failures to seek treatment can undermine subjective symptom
    reporting. E.g., Tommasetti, 
    533 F.3d at
    1039–41; Molina v. Astrue, 
    674 F.3d 1104
    , 1112 (9th Cir. 2012), superseded on other grounds by 
    20 C.F.R. §
                                              3
    404.1502(a); Burch, 
    400 F.3d at 681
    . Ross sometimes forgot to take pain
    medication for his back. A mental health treatment program discharged him
    multiple times because he stopped attending sessions. Further, medication
    significantly mitigated Ross’s concentration issues. An “ALJ may discredit a
    claimant’s testimony when the claimant reports participation in everyday activities
    indicating capacities that are transferable to a work setting.” Molina, 
    674 F.3d at 1113
    . Ross reported participating in activities inconsistent with his self-described
    degree of limitations. For example, he assisted his girlfriend with daily chores,
    prepared meals, cared for pets, rode a bike, and used public transportation.
    2. To support his claim of disability, Ross relies on the opinions of
    psychologist Dr. Kim Wheeler and APRN Joe Kohn. Dr. Wheeler opined that
    Ross would have marked limitations in his ability to “[p]erform activities within a
    schedule, maintain regular attendance,” “[c]omplete a normal workday and work
    week without interruptions from psychologically based symptoms,” and more.
    APRN Kohn concluded that Ross was limited to sedentary work.
    An ALJ’s decision on how to credit a medical opinion “must simply be
    supported by substantial evidence.” Woods v. Kijakazi, 
    32 F.4th 785
    , 787 (9th Cir.
    2022). The ALJ must “articulate . . . how persuasive” it finds “‘all of the medical
    opinions’ from each doctor” and look at supportability and consistency in the
    4
    record. 
    Id. at 792
     (quoting 
    20 C.F.R. § 404
    .1520c(b)). Substantial evidence
    supports the ALJ’s decision to discount Dr. Wheeler and APRN Kohn’s opinions.
    The ALJ discounted Dr. Wheeler’s opinion because the marked limitations
    that she identified were inconsistent with Ross’s reports about his work history,
    were unsupported by Dr. Wheeler’s finding that Ross’s mental status exam was
    mostly normal, and were inconsistent with other normal psychiatric findings in
    Ross’s medical history. For instance, Ross was employed at a car wash for six
    months prior to Dr. Wheeler’s evaluation. Ross’s mental status was consistently
    evaluated as “grossly normal,” and he experienced significant improvement in his
    concentration and ability to complete tasks on ADHD medication.
    The ALJ reasoned that APRN Kohn’s opinion was inconsistent with his own
    exam findings, other objective exam findings, and Ross’s daily activities. Despite
    finding that Ross was limited to sedentary work, APRN Kohn noted that the
    severity of Ross’s lower back pain was only mild. APRN Kohn did not reconcile
    this inconsistency. An ALJ can reasonably reject a medical opinion when there are
    inconsistencies with the medical records. See Tommasetti, 
    533 F.3d at 1041
    . A
    2019 x-ray conducted in response to his thoracic spine pain was negative for
    abnormal findings, although it did show mild thoracic spondylosis. In May 2019,
    Ross sought medical care for his back after he fell while pushing a car. Prior to
    5
    this visit, he had occasionally mentioned back pain but had not sought care for it.
    Further, Ross reported participating in activities that were not entirely consistent
    with APRN Kohn’s conclusion about sedentary work. As the ALJ noted, Ross
    reported riding a bike and completing “lots of projects” around the house. At best,
    Ross’s medical evidence is “susceptible to more than one rational interpretation,”
    so under the substantial evidence standard, we must uphold the ALJ’s conclusion.
    
    Id. at 1038
    .
    AFFIRMED.
    6