Jessica Kelly v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2018
• Docket: 15-35391
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 21 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JESSICA KELLY, No. 15-35391

Plaintiff-Appellant, D.C. No. 6:13-cv-02317-BR

v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding

Submitted March 19, 2018 **

Before: FARRIS, CANBY, and LEAVY, Circuit Judges.

Jessica Kelly appeals the district court’s affirmance of the Commissioner of

Social Security’s denial of her application for disability insurance benefits under

Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291

* 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). and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875

(9th Cir. 2016), and we affirm.

The administrative law judge (“ALJ”) did not err by discounting the opinion

of examining psychologist Dr. Eckstein and affording more weight to that of

examining psychologist Dr. McGrath. The doctors’ opinions diverged regarding

Kelly’s Global Assessment of Functioning (“GAF”) score, with Dr. McGrath

assigning Kelly a score of 57, indicating moderate symptoms or functional

limitations, and Dr. Eckstein concluding Kelly had a GAF score of 45, suggesting

serious symptoms or limitations. Because Dr. Eckstein’s opinion was contradicted,

the ALJ was required to proffer specific and legitimate reasons supported by

substantial evidence for discounting it. See Trevizo v. Berryhill, 871 F.3d 664, 675

(9th Cir. 2017). The ALJ met this standard by pointing to evidence indicating Dr.

Eckstein’s opinion appeared more speculative in nature than Dr. McGrath’s and

that the opinion was contradicted by Kelly’s work history.

Kelly challenges the reasons the ALJ provided for discounting Dr.

Eckstein’s opinion; however, her contentions lack merit. The ALJ permissibly

relied upon the fact that Dr. Eckstein recommended performing a full intellectual

assessment to evaluate comprehensively Kelly’s limitations as indicating Dr.

Eckstein’s conclusions were not based on clinical findings, as Dr. McGrath’s were.

2 See Chaudry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). In addition, the ALJ

reasonably construed Kelly’s job history, which included positions entailing simple

tasks, as contradicting Dr. Eckstein’s opinion that she could not handle simple job

duties. See Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008).

The ALJ did not err by relying on the opinions of the state agency consulting

physicians over Dr. Eckstein’s opinion. Although “the contrary opinion of a non-

examining medical expert does not alone constitute a specific, legitimate reason for

rejecting a[n] . . . examining physician’s opinion, it may constitute substantial

evidence when it is consistent with other independent evidence in the record.”

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The ALJ found the

consulting physicians’ opinions were consistent with other record evidence,

including Kelly’s work history and Dr. McGrath’s examination findings.

The ALJ properly accounted for Dr. McGrath’s findings in formulating

Kelly’s Residual Functional Capacity (“RFC”). The ALJ incorporated Dr.

McGrath’s opinion that Kelly had a marginal capacity concerning construction,

organization, and arrangement of objects, as well as poor immediate and short-term

visual memory, by restricting her to tasks requiring no more than simple, routine

instructions and brief, structured encounters with coworkers and supervisors.

3 The ALJ did not err in discounting Kelly’s statements concerning the extent

of her symptoms and their limiting effects. The ALJ applied the requisite two-step

framework and cited specific, clear, and convincing reasons for discounting

portions of Kelly’s statements. See Trevizo, 871 F.3d at 678. The ALJ cited that

Kelly’s alleged onset date conflicted with her statements concerning the disabling

effects of her symptoms and that Kelly had stopped working at her last job for

reasons unrelated to her medical conditions. See Molina v. Astrue, 674 F.3d 1104,

1121 (9th Cir. 2012); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001).

Kelly’s argument that the ALJ erred by reversing the manner in which the

ALJ is required to determine credibility, by stating Kelly’s credibility was limited

to the extent her statements were inconsistent with the RFC assessment, lacks

merit. Although this “boilerplate language” can be “problematic,” its inclusion “is

not, by itself, reversible error,” and was harmless here, as the ALJ met the

substantive requirements for discounting claimant statements. See Laborin v.

Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017).

Kelly’s contention that the ALJ erred by interpreting her statement that she

had left her last position because she “could not do the job” to mean she left for

reasons unrelated to her health issues is belied by the record. When filling out her

disability report and answering the question of why she had stopped working,

4 Kelly did not select the answer that she had done so because of her medical

conditions, but rather indicated she had stopped “because of other reasons.” The

Court will uphold the ALJ’s reasonable interpretation of this evidence. See Burch

v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005).

The ALJ did not err in evaluating the lay witness statement from Kelly’s

friend, Julie Berry. The ALJ gave great weight to Ms. Berry’s testimony to the

extent that it was consistent with the medical evidence from the state agency

physicians. The ALJ’s reasoning that he was rejecting portions of Ms. Berry’s

testimony that were inconsistent with the medical record “may be reasonably

discerned,” see Molina, 674 F.3d at 1121 (citing Alaska Dep’t of Envtl.

Conservation v. EPA, 540 U.S. 461, 497 (2004)), and inconsistency with medical

evidence is a germane reason for discounting lay witness statements, Bayliss v.

Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).

The ALJ did not err at Step Five of the sequential evaluation by finding

Kelly could perform other work in the national economy. Kelly’s arguments turn

upon her allegations of error concerning the ALJ’s evaluation of the medical

evidence, and she has not shown the ALJ committed harmful error at this earlier

stage of the analysis. The ALJ’s formulation of the hypothetical to the vocational

expert as excluding jobs that predictably entail supervisors with a harsh, critical

5 style but including jobs that still involve some supervisory interaction was based

on a rational interpretation of the opinions of the state agency physicians that Kelly

was capable of handling jobs with normal supervision that was not overly harsh or

critical. We uphold the ALJ’s reasonable interpretation of this evidence. See Ryan,

528 F.3d at 1198.

AFFIRMED.