Laura Wesselius v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 25, 2021
• Docket: 20-35386
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LAURA A. WESSELIUS, No. 20-35386

Plaintiff-Appellant, D.C. No. 2:19-cv-00700-JRC

v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington J. Richard Creatura, Magistrate Judge, Presiding

Argued and Submitted October 5, 2021 Seattle, Washington

Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges. Partial Concurrence and Partial Dissent by Judge PAEZ

Laura Wesselius appeals from the district court’s judgment affirming the

Commissioner of Social Security’s denial of disability benefits for the period

beginning January 7, 2009. We have jurisdiction under 28 U.S.C. § 1291 and 42

U.S.C. § 405(g), and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The district court’s decision is reviewed de novo, and the Administrative

Law Judge’s (ALJ) decision will be overturned only if it “contains legal error or is

not supported by substantial evidence.” Ford v. Saul, 950 F.3d 1141, 1154-55 (9th

Cir. 2020) (citation omitted). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Biestek v.

Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation omitted).

1. Substantial evidence supports the ALJ’s decision to give little weight to

the opinions of examiners Dr. Lewis1, Dr. McDuffee, and Dr. Wilkinson. When an

examiner’s opinion is contradicted by another doctor, as was the case here, the

opinion can only be rejected for “specific and legitimate reasons.” Ford, 950 F.3d

at 1155 (citation omitted).

The ALJ’s credibility determination was based in part on his finding that

these opinions were “inconsistent with [Wesselius’s] relatively benign longitudinal

mental status findings during appointments.” The ALJ reviewed the findings from

mental status exams administered during appointments roughly every 3-4 months

over a period of nine years, between 2009 and 2018. The ALJ found that these

mental status exams often showed normal mood/affect, no acute distress,

appropriate speech, logical thought processes, without tangential thinking, normal

1 The ALJ considered Dr. Lewis’s 2009 opinion separately, and we discuss the ALJ’s treatment of that opinion below.

2 thought content, without suicidal/homicidal ideation, psychosis, or paranoia, full

alertness/orientation, adequate attention/concentration, intact recent/remote

memory, appropriate fund of knowledge, and fair insight/judgment. The ALJ

found these relatively normal emotional, cognitive, and behavioral findings

inconsistent with the conclusions of Drs. Lewis, McDuffee, and Wilkinson that

Wesselius suffered from marked or severe impairments in these areas. Beyond

this general inconsistency, the ALJ also identified specific inconsistencies between

the opinions of Drs. Lewis, McDuffee, and Wilkinson and results from

contemporaneous mental status testing.

The ALJ’s comparison with contemporaneous and longitudinal mental status

exams was a specific and legitimate reason to discount the opinions of Drs. Lewis,

McDuffee, and Wilkinson. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

1190, 1195 (9th Cir. 2004) (holding that medical opinions can be discounted if

“unsupported by the record as a whole … or by objective medical findings”

(citation omitted)). These inconsistencies were not an artifact of cherry-picking

evidence, as the dissent suggests. The ALJ specifically recognized that these

exams reflected “signs of depression and anxiety” but nevertheless concluded that

they “have generally been unremarkable.” Indeed, the ALJ’s findings were

supported by a broad set of mental status exams covering the entire relevant time

period. Cf. Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (“[I]t is error

3 for an ALJ to pick out a few isolated instances of improvement over a period of

months or years and to treat them as a basis for concluding a claimant is capable of

working.” (citations omitted)).

The mental status exams alone provide substantial evidence to support the

ALJ’s decision to give little weight to the opinions of Drs. Lewis, McDuffee, and

Wilkinson. Any other errors with the ALJ’s treatment of their opinions are

therefore harmless. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155,

1162 (9th Cir. 2008) (“So long as there remains substantial evidence supporting the

ALJ’s conclusions on … credibility and [any] error does not negate the validity of

the ALJ’s ultimate credibility conclusion, such is deemed harmless and does not

warrant reversal.” (citation and quotation marks omitted)).

2. The ALJ also did not err in giving little weight to the opinions of

counselors Angela Cole and Janelle Gauthier. Because counselors are not

considered acceptable medical sources under the applicable regulations, see 20

C.F.R. § 404.1502(a)(2), 1513, an ALJ may discount testimony from such sources

with “reasons germane to each witness for doing so,” Coleman v. Saul, 979 F.3d

751, 757 (9th Cir. 2020) (quoting Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.

2012) (citation omitted), superseded by regulation on other grounds). The ALJ

determined that the marked and severe limitations identified by counselors Cole

and Gauthier were inconsistent with the same benign mental status findings

4 discussed above. The ALJ also determined that their opinions were either

unsupported by, or inconsistent with, contemporaneous mental status testing. The

ALJ thus provided sufficient germane reasons for discounting the opinions of

counselors Cole and Gauthier. See Coleman, 979 F.3d at 757 (holding that

opinions of other sources can be discounted where the “full medical record casts

doubt on the severity of the limitations assessed by these sources”). 2

3. Likewise, the ALJ did not err in finding that Wesselius’s own testimony

was not credible. Without “evidence of malingering,” an ALJ can only reject a

claimant’s testimony with “specific, clear and convincing reasons for doing so.”

Garrison, 759 F.3d at 1015 (citations omitted). Here, however, the ALJ did find

evidence of malingering. Specifically, the ALJ pointed to clinical indications from

an April 2012 psychological examination that “raised concerns that she was over-

report[ing] her symptoms….” The ALJ also pointed to inconsistencies between

Wesselius’s statements on different occasions regarding her performance and

placement in school, her criminal history, and her ability to perform daily

activities. Accordingly, substantial evidence supports the ALJ’s determination that

Wesselius’s testimony was not credible. See Carmickle, 533 F.3d at 1160 (clear

2 Wesselius offers no specific and distinct arguments regarding the ALJ’s failure to discuss the opinions of Dr. Sattar, Dr. Rubens, Dr. Allender, and Ms. Foote. Accordingly, any argument regarding these witnesses is forfeited. See Martin v. City of Oceanside, 360 F.3d 1078, 1081 (9th Cir. 2004) (citation omitted).

5 and convincing standard does not apply when there is affirmative evidence of

malingering (citations omitted)).

4. Nor did the ALJ err in giving little weight to the testimony of Wesselius’s

mother, Barbara Sorensen. The ALJ identified inconsistencies between Sorensen’s

statements about Wesselius’s ability to perform daily activities during the relevant

time period. See Valentine v. Comm. Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir.

2009) (internal inconsistency with earlier statement can be a germane reason for

rejecting third-party witness’s later statement).

5. The ALJ gave only partial weight to Dr. Lewis’s 2009 opinion and the

opinion of Dr. Kellogg, another examiner. Even if the ALJ had erred in partially

discounting those opinions, any error was harmless. “[A]n ALJ’s error is harmless

where it is ‘inconsequential to the ultimate nondisability determination.’” Molina,

674 F.3d at 1115 (quoting Carmickle, 533 F.3d at 1162). Dr. Lewis’s 2009

opinion only reflected moderate cognitive and social limitations, and Dr. Kellogg

opined that Wesselius’s limitations did not prevent her from performing daily

activities or impair her memory or cognitive functioning. The ALJ found that

Wesselius had moderate cognitive and social impairments, and the residual

functional capacity was limited to “simple, repetitive tasks,” and “occasional,

superficial interaction with the general public” as well as no coordination with

coworkers. Accordingly, the ALJ’s partial discounting of Dr. Lewis’s 2009

6 opinion and Dr. Kellogg’s opinion did not affect the residual functional capacity

determination, and any error was therefore inconsequential. See Molina, 674 F.3d

at 1115.

6. The ALJ did not err in giving little weight to the opinion of Dr. Ballard.

Like an examining physician, a treating physician’s opinion can be rejected for

“specific and legitimate reasons” if, as here, that opinion is contradicted by another

doctor. See Ford, 950 F.3d at 1154 (citation omitted). In June 2011, Dr. Ballard

opined that Wesselius could only stand for 2 hours and sit for 2 hours in an eight-

hour workday. In April 2012, Dr. Ballard opined that Wesselius had a medically

determinable physical condition that was expected to impair work function. The

ALJ discounted Dr. Ballard’s opinions, finding them “conclusory and no[t]

accompanied by any narrative explanation.” That is a reasonable characterization

of Dr. Ballard’s opinions, and it is an adequate rationale for discounting those

opinions that is supported by substantial evidence. See Ford, 950 F.3d at 1155

(“[T]he ALJ may permissibly reject check-off reports that do not contain any

explanation of the bases of their conclusions.” (quoting Molina, 674 F.3d at

1111)).

7. In light of the foregoing, the ALJ’s findings regarding Wesselius’s

residual functional capacity are supported by substantial evidence, and the ALJ did

not err in finding Wesselius not disabled on this record.

7 AFFIRMED.

8 FILED Laura Wesselius v. Kilolo Kijakazi, No. 20-35386 OCT 25 2021 Paez, J., concurring in part and dissenting in part: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

I concur in parts 2-6 of the court’s disposition. As I explain below, I

respectfully dissent from part 1.

Although our standard of review of decisions by an Administrative Law

Judge (“ALJ”) to deny benefits is deferential, we cannot affirm a decision that is

based on merely “a few isolated instances of improvement” in an applicant’s

condition rather than evidence of a sustained recovery. Garrison v. Colvin, 759

F.3d 995, 1017 (9th Cir. 2014). As we have repeatedly emphasized, ALJs may

rely on examples from the record to support their determinations, but only if “the

data points they choose . . . in fact constitute examples of a broader development.”

Id. at 1018. It is an error for an ALJ to find that an applicant’s condition has

improved without thoroughly describing her “symptoms, course of treatment, and

bouts of remission, and thereby chart[ing] a course of improvement.” Id.

Although the ALJ here cited to mental status findings spanning several years, his

discussion of those examinations was incomplete, omitting any mention of

contrary findings from the same examinations and papering over these

inconsistencies by labeling the findings as “relatively unremarkable” and “benign.”

ER 2224-25. In my view, this selective reading of the record does not provide

substantial evidence to discredit the opinions of Dr. Lewis, Dr. McDuffee, or Dr.

1 Wilkinson as to Wesselius’s disability. See Diedrich v. Berryhill, 874 F.3d 634,

643 (9th Cir. 2017).

Failing to account for the full extent of an applicant’s symptoms over the

relevant period is particularly egregious in the context of mental illness, which is

inherently variable. See Garrison, 759 F.3d at 1017 n.23. As our case law

recognizes, mental health symptoms can be expected to “wax and wane in the

course of treatment,” and an individual suffering from mental illness will, at times,

have relatively normal mental status findings. Id. at 1017. In this case, the record

taken as a whole reflects exactly that sort of waxing and waning, rather than any

sustained improvement. While Wesselius at times reported feeling better and

having her mental illness under control, her progress was not linear. She continued

to experience anxiety, depression, and panic attacks, and her symptoms were

sometimes so severe that she worried about being hospitalized. She reported her

ongoing issues to her doctors, expressing concerns that her mental health was

“going backwards.” ER 2037.

The ALJ’s failure to address the extensive evidence in the record indicating

that Wesselius continued to struggle with her mental health throughout the relevant

period indicates that he did not adequately consider the record as a whole. An ALJ

need not discuss every piece of evidence, but he must explain why “significant

probative evidence” has been rejected. Vincent ex rel. Vincent v. Heckler, 739

2 F.2d 1393, 1394-95 (9th Cir. 1984). A substantial number of treatment notes and

test results produced by Wesselius’s doctors during the relevant period document

an individual experiencing the highs and lows of mental illness, and the ALJ could

not ignore them simply because they do not fit within his characterization of the

record.

We must be careful to avoid demanding consistency from conditions that do

not progress in consistent ways. Wesselius’s medical records paint a clear picture

of a woman who persistently suffered from debilitating mental illness throughout

the relevant period, despite the fact that there were some good days among the bad.

Because the ALJ in this case relied on cherry-picked portions of the record to find

that Wesselius’s condition had improved, ignoring substantial contrary evidence, I

would hold that his decision to discredit Dr. Lewis, Dr. McDuffee, and Dr.

Wilkinson is not supported by substantial evidence and would remand the case for

further proceedings.