NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
OMAR SOTO, Sr., No. 18-16288
Plaintiff-Appellant, D.C. No. 2:17-cv-00742-DJH
v. MEMORANDUM* ANDREW SAUL, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding
Submitted May 15, 2020**
Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges.
Omar Soto appeals the district court’s judgment affirming the Commissioner
of Social Security’s denial of his application for disability insurance benefits under
Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291
and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875
* 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). (9th Cir. 2016), and we affirm.
The ALJ provided specific and legitimate reasons supported by substantial
evidence to discount the opinion of examining psychologist Dr. Van Eerd. Trevizo
v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). The ALJ properly gave little
weight to Dr. Van Eerd’s conclusions because they were internally inconsistent,
inconsistent with Soto’s reported activities of daily living, and contradicted by the
objective medical evidence. Despite Dr. Van Eerd’s conclusion that Soto could
not complete a workweek without interruption due to fatigue and depressed mood,
he found that Soto could interact, accept and follow instruction and criticism,
respond effectively to workplace interactions, and that Soto was cooperative,
maintained good eye contact, and had fair understanding and memory, adequate
attention and concentration, and good judgment and insight. The ALJ also found
Dr. Van Eerd’s opinion inconsistent with Soto’s reported activities of daily living,
including taking care of personal needs and chores, cooking, shopping, playing
with his grandchildren, and attending family activities. Contrary to Soto’s
argument, the ALJ cited to these examples in the record when discussing Soto’s
activities of daily living earlier in the opinion, albeit two pages earlier than in her
discussion of Dr. Van Eerd’s opinion.
The ALJ gave specific and legitimate reasons for assigning little weight to
treating physician Dr. Holmes’s opinion that Soto was completely disabled. See
2 Trevizo, 871 F.3d at 675. Substantial evidence supports this finding, including Dr.
Holmes’s own treatment notes, which reflected that Soto’s neuropathy responded
well to gabapentin, his mood responded well to Lexapro, and diabetic symptoms
were improving with treatment. The ALJ properly considered the consistency of
Dr. Holmes’s RFC assessment with the record, 20 C.F.R. § 404.1527(c)(4); see
also Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)
(ALJ may discount a medical opinion that is not supported by the record as a
whole or by objective medical findings); Burrell v. Colvin, 775 F.3d 1133, 1141
(9th Cir. 2014) (ALJ “may reject a treating physician’s opinion if it is based to a
large extent on the claimant’s self-reports that have been properly discounted as
incredible”).
Though Soto argues the length of the treating relationship was an
insufficient basis upon which the ALJ rejected Dr. Holmes’s opinion, this was,
permissibly, only one reason the ALJ cited for providing little weight to Dr.
Holmes’s opinion. See 20 C.F.R. § 416.927(c)(2)(ii). Additionally, the ALJ
properly assigned little weight to Dr. Holmes’s opinions because the checked-box
form was not supported by the medical evidence, including her own notes. Ford v.
Saul, No. 18-35794, slip op. at 20 (9th Cir. filed Feb. 20, 2020) (“While an opinion
cannot be rejected merely for being expressed as answers to a check-the-box
questionnaire, Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017), ‘the ALJ may
3 permissibly reject check-off reports that do not contain any explanation of the
bases of their conclusions.’”) (quoting Molina, 674 F.3d at 1111).
The ALJ provided specific and legitimate reasons for affording weight to the
state examining and reviewing physicians. The ALJ afforded proper weight to
these opinions because she noted that they were consistent with the objective
medical evidence and Dr. Holmes’s own treatment notes.
The ALJ did not err by discrediting Soto’s symptom testimony because she
reasonably concluded that Soto’s statements about his daily activities were
contradicted in the record. See Orn v. Astrue, 425 F.3d 625, 639 (9th Cir 2007).
The ALJ properly considered Soto’s “prior inconsistent statements concerning the
symptoms, and other testimony by the claimant that appears less than candid.”
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The ALJ noted
specific inconsistencies between Soto’s reported daily activities on his function
report, his testimony at the hearing, and elsewhere in his medical records. By
citing these inconsistencies, which are supported by substantial evidence, the ALJ
provided a clear and convincing reason to discount Soto’s testimony. See id.
AFFIRMED.
4 FILED Soto, Sr. v. Saul, No. 18-16288 MAY 19 2020
SILVERMAN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
Dr. Van Eerd was chosen to conduct an independent in-person psychological
examination of Soto. He opined that Soto’s depression would prevent him from
working a regular workweek. The ALJ rejected Van Eerd’s opinion in favor of the
opinions of two consultants who never saw Soto and only reviewed some records.
The ALJ gave little weight to Van Eerd's workweek opinion, reasoning that it was
contradicted by his other findings, such as Soto’s ability to follow instructions,
interact with co-workers, etc.
An ALJ’s evaluation of the evidence is entitled to deference as long as it is
reasonably supported. In this case, the supposed contradiction relied on by the ALJ
is not a contradiction at all. It is entirely plausible that Soto is able to do his job – if
and when he shows up for work – but that there are days that he can't get out of
bed. The fact that Soto can follow directions and accept criticism in the workplace
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
OMAR SOTO, Sr., No. 18-16288
Plaintiff-Appellant, D.C. No. 2:17-cv-00742-DJH
v. MEMORANDUM* ANDREW SAUL, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding
Submitted May 15, 2020**
Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges.
Omar Soto appeals the district court’s judgment affirming the Commissioner
of Social Security’s denial of his application for disability insurance benefits under
Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291
and 42 U.S.C. § 405(g). We review de novo, Attmore v. Colvin, 827 F.3d 872, 875
* 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). (9th Cir. 2016), and we affirm.
The ALJ provided specific and legitimate reasons supported by substantial
evidence to discount the opinion of examining psychologist Dr. Van Eerd. Trevizo
v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). The ALJ properly gave little
weight to Dr. Van Eerd’s conclusions because they were internally inconsistent,
inconsistent with Soto’s reported activities of daily living, and contradicted by the
objective medical evidence. Despite Dr. Van Eerd’s conclusion that Soto could
not complete a workweek without interruption due to fatigue and depressed mood,
he found that Soto could interact, accept and follow instruction and criticism,
respond effectively to workplace interactions, and that Soto was cooperative,
maintained good eye contact, and had fair understanding and memory, adequate
attention and concentration, and good judgment and insight. The ALJ also found
Dr. Van Eerd’s opinion inconsistent with Soto’s reported activities of daily living,
including taking care of personal needs and chores, cooking, shopping, playing
with his grandchildren, and attending family activities. Contrary to Soto’s
argument, the ALJ cited to these examples in the record when discussing Soto’s
activities of daily living earlier in the opinion, albeit two pages earlier than in her
discussion of Dr. Van Eerd’s opinion.
The ALJ gave specific and legitimate reasons for assigning little weight to
treating physician Dr. Holmes’s opinion that Soto was completely disabled. See
2 Trevizo, 871 F.3d at 675. Substantial evidence supports this finding, including Dr.
Holmes’s own treatment notes, which reflected that Soto’s neuropathy responded
well to gabapentin, his mood responded well to Lexapro, and diabetic symptoms
were improving with treatment. The ALJ properly considered the consistency of
Dr. Holmes’s RFC assessment with the record, 20 C.F.R. § 404.1527(c)(4); see
also Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)
(ALJ may discount a medical opinion that is not supported by the record as a
whole or by objective medical findings); Burrell v. Colvin, 775 F.3d 1133, 1141
(9th Cir. 2014) (ALJ “may reject a treating physician’s opinion if it is based to a
large extent on the claimant’s self-reports that have been properly discounted as
incredible”).
Though Soto argues the length of the treating relationship was an
insufficient basis upon which the ALJ rejected Dr. Holmes’s opinion, this was,
permissibly, only one reason the ALJ cited for providing little weight to Dr.
Holmes’s opinion. See 20 C.F.R. § 416.927(c)(2)(ii). Additionally, the ALJ
properly assigned little weight to Dr. Holmes’s opinions because the checked-box
form was not supported by the medical evidence, including her own notes. Ford v.
Saul, No. 18-35794, slip op. at 20 (9th Cir. filed Feb. 20, 2020) (“While an opinion
cannot be rejected merely for being expressed as answers to a check-the-box
questionnaire, Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017), ‘the ALJ may
3 permissibly reject check-off reports that do not contain any explanation of the
bases of their conclusions.’”) (quoting Molina, 674 F.3d at 1111).
The ALJ provided specific and legitimate reasons for affording weight to the
state examining and reviewing physicians. The ALJ afforded proper weight to
these opinions because she noted that they were consistent with the objective
medical evidence and Dr. Holmes’s own treatment notes.
The ALJ did not err by discrediting Soto’s symptom testimony because she
reasonably concluded that Soto’s statements about his daily activities were
contradicted in the record. See Orn v. Astrue, 425 F.3d 625, 639 (9th Cir 2007).
The ALJ properly considered Soto’s “prior inconsistent statements concerning the
symptoms, and other testimony by the claimant that appears less than candid.”
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The ALJ noted
specific inconsistencies between Soto’s reported daily activities on his function
report, his testimony at the hearing, and elsewhere in his medical records. By
citing these inconsistencies, which are supported by substantial evidence, the ALJ
provided a clear and convincing reason to discount Soto’s testimony. See id.
AFFIRMED.
4 FILED Soto, Sr. v. Saul, No. 18-16288 MAY 19 2020
SILVERMAN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
Dr. Van Eerd was chosen to conduct an independent in-person psychological
examination of Soto. He opined that Soto’s depression would prevent him from
working a regular workweek. The ALJ rejected Van Eerd’s opinion in favor of the
opinions of two consultants who never saw Soto and only reviewed some records.
The ALJ gave little weight to Van Eerd's workweek opinion, reasoning that it was
contradicted by his other findings, such as Soto’s ability to follow instructions,
interact with co-workers, etc.
An ALJ’s evaluation of the evidence is entitled to deference as long as it is
reasonably supported. In this case, the supposed contradiction relied on by the ALJ
is not a contradiction at all. It is entirely plausible that Soto is able to do his job – if
and when he shows up for work – but that there are days that he can't get out of
bed. The fact that Soto can follow directions and accept criticism in the workplace
(or feed and bathe himself) doesn’t address Dr. Van Eerd’s conclusion that Soto’s
“fatigue, depressed mood with avoidance and low motivation and distraction per
physical distress” will keep him from regularly “complet[ing] a work week.” I
don't see any necessary inconsistency that would justify rejecting, on this basis,
Van Eerd’s opinion. Maybe there are were other reasons to have given little weight
to Van Eerd’s opinion, but the one articulated by the ALJ is a non sequitur. -2-
Furthermore, this error cannot be deemed harmless because the vocational
expert opined that if Van Eerd’s opinion were accepted, Soto would be unable to
work.
I would reverse.