socialNsecurity Chap 11

CHAPTER 11

Treating Physician Rule

The opinion of the treating physician is entitled to controlling weight. It will decide whether you get paid, if it cannot be discredited. If you do not have your own doctor, then the consultative examiner’s opinion will control. However, a treating physician's opinion is accorded controlling weight only if the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2).

Evidence from a treating physician is not the only medical evidence that a claimant may present. Non-medical evidence, such as testimony or reports from chiropractors and physical therapists, is also admissible. Medical-related evidence, such as the testimony of personal friends, concerning what they have observed is also probative and admissible. The ALJ must consider all such evidence. The ALJ is charged with the duty to weigh all of the evidence in the record to reach a fair decision.

On occasion, the ALJ may find the evidence of a non-treating source more persuasive than that of the Treating Physician. The opinion of a treating physician "must be given substantial or considerable weight unless `good cause' is shown to the contrary." Good cause is shown when the: "(1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records." If the ALJ can give specific reasons for failing to give the opinion of a treating physician controlling weight, and those reasons are supported by substantial evidence in the record, then there will be no reversible error.

TAYLOR v. ASTRUE

LINDA TAYLOR, Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

No. 08-15680.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 2010 San Francisco, California.

Filed July 13, 2010.

Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District Judge.

Appellant Linda Taylor ("Taylor") appeals the district court's summary judgment in favor of the Commissioner of Social Security ("Commissioner"). The district court affirmed the decision of the Administrative Law Judge ("ALJ") denying Taylor Disabled Widow's Insurance benefits and Supplemental Security Income benefits under Titles II and XVI of the Social Security Act. The ALJ concluded, on the basis of step five in the five-step sequential analysis in 20 C.F.R. §404.1520(a)-(g), that Taylor was not "disabled" within the meaning of the Act, 42 U.S.C. § 1382c(3), because she retained "the capacity for work that exists in significant numbers in the regional economy."

Taylor contends on appeal that the ALJ erred by rejecting the opinion of her evaluating psychologist. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's decision affirming the ALJ, and we reverse and remand for an award of benefits.

The ALJ disregarded the opinion of Dr. Leslie Lessenger— who conducted a consultative psychological examination of Taylor— and instead relied on the contradictory opinions of non-treating, non-examining physicians Dr. Glenn Ikawa and Dr. Evangeline Murillo. To disregard the uncontradicted opinion of an examining physician or treating physician, an ALJ must provide clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted by another doctor, as here, an examining or a treating physician's conclusions may be rejected only for specific and legitimate reasons supported by substantial evidence in the record. Id. at 830-31.

The ALJ failed to offer "specific and legitimate reasons" for crediting Drs. Ikawa and Murillo, non-treating, non-examining doctors, over Dr. Lessenger, an examining doctor. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Dr. Lessenger opined that Taylor had the following non-exertional limitations — her concentration was negatively affected by her emotional distress and physical condition; she was unlikely to function in a work situation where demands were made upon her; she would not do well interacting with others; and she was limited in her ability to deal with changes in a routine work setting due to her emotional instability. Drs. Ikawa and Murillo, upon review of Taylor's medical file, concluded that Taylor-was capable of relating to peers and supervisors, but should avoid the general public; was capable of adapting to work-like settings and routine changes in the work place; and was capable of maintaining attention, concentration, persistence, and pace. The ALJ concluded Taylor had a mental residual functional capacity that closely reflected the opinions expressed in Drs. Ikawa's and Murillo's assessment. However, the ALJ's conclusions differed from the opinion expressed by Dr. Lessenger and the ALJ offered no reasons why Dr. Lessenger's opinion was not credited. We conclude that the ALJ erred by according greater weight to the opinions of non-examining, non-treating physicians, than to the opinion of Taylor's examining physician without providing "specific" and "legitimate" reasons supported by "substantial evidence in the record" for doing so. See Lester, 81 F.3d at 830-31. As such, we credit Dr. Lessenger's opinion "as a matter of law." Id. at 834.

"The decision whether to remand a case for additional evidence or simply to award benefits is within the discretion of the court." Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998). "Where the record is complete, however, we award benefits to the claimant." Ramirez v. Shalala, 8 F.3d 1449, 1455 (9th Cir. 1993). We conclude that remand for an award of benefits is appropriate because, once Dr. Lessenger's opinion is credited, "there are no outstanding issues that must be resolved before a determination of disability can be made." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Had the ALJ properly credited Dr. Lessenger's opinion, Taylor would have been entitled to benefits as a matter of law. The vocational expert testified that a person of Taylor's age, education, and work experience, in addition to the non-exertional limitations outlined by Dr. Lessenger, would not be able to perform other work in the national economy.

Accordingly, we reverse the judgment of the district court and remand with instructions to remand the case to the ALJ for an award of benefits.^{[ 3 ]}

REVERSED and REMANDED.

Rawlinson, Circuit Judge, concurring: I concur in the result.

HERE IS ANOTHER NINTH CIRCUIT CASE WHERE THE JUDGES DID NOT AGREE.

VAN SICKLE v. ASTRUE

TINA K. VAN SICKLE, Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant-Appellee.

No. 09-15509.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 2010 — San Francisco, California.

June 30, 2010.

Before: TASHIMA and THOMAS, Circuit Judges, and STAFFORD, Senior District Judge.

Tina Van Sickle appeals the district court's grant of summary judgment in favor of the Commissioner of Social Security ("Commissioner") in Van Sickle's action challenging denial of her application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand for calculation of benefits. Because the factual and procedural background is familiar to the parties, we do not recount it here.

We review de novo the district court's order upholding denial of social security benefits. Howard ex rel Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). We uphold the Commissioner's disability determination unless it contains legal error or is not supported by substantial evidence. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

Van Sickle contends that the administrative law judge's ("ALJ") residual functional capacity ("RFC") finding was inconsistent with the opinions of examining psychologist Brent Geary, Ph.D., and non-examining reviewing state medical consultant Jocelyn Fuller, Ph.D. She also contends that the ALJ failed to give sufficient reasons for rejecting those opinions. We agree.

Both Dr. Geary and Dr. Fuller reported moderate mental limitations, and Dr. Fuller opined that Van Sickle could work "in a low stress setting." The ALJ found that the medical opinions of the "consulting physicians and state agency medical consultants" were "highly probative." Indeed, the opinions of the two doctors were consistent with each other, were uncontroverted by other sources, and comprised the sole medical opinion evidence regarding Van Sickle's mental limitations. The ALJ, however, neither included these limitations in his RFC nor explained why he rejected them, as he was required to do. See Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (stating that the Commissioner must provide clear and convincing reasons for rejecting the uncontradicted opinion of an examining doctor and specific and legitimate reasons that are supported by substantial evidence in the record for rejecting the opinion of the examining doctor if it is contradicted by another doctor) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)).^{[ 3 ]}

Moreover, the ALJ only briefly summarized Dr. Geary's opinion and did not even mention Dr. Fuller's opinion. Although the ALJ "need not discuss all evidence presented to [him,]" he "must explain why `significant probative evidence has been rejected.'" Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)) (emphasis in original); see also Social Security Ruling 96-6p, 1996 WL 374180, *2 (S.S.A. 1996) (stating that ALJ "may not ignore" the opinions of state agency medical consultants "and must explain the weight given to the opinions in their decisions"). Accordingly, we conclude the ALJ erred in failing to include in his RFC the limitations identified by Dr. Geary and Dr. Fuller.^{[ 4 ]}

We also conclude that remand for calculation of benefits is appropriate because the vocational expert's (VE) testimony establishes that had the limitations identified by Dr. Geary and Dr. Fuller been adopted, a hypothetical individual with Van Sickle's RFC would not have been capable of performing any of the jobs the ALJ identified at Step 5. See Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996) (holding that remand for an award of benefits is appropriate "where (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were [the] evidence credited").

We therefore reverse the judgment of the district court and remand with directions that the district court reverse the Commissioner's denial of benefits and remand for the calculation and payment of benefits.

REVERSED and REMANDED.

STAFFORD, District Judge, dissenting.

Because I cannot agree that the district court erred in affirming the ALJ's decision to deny benefits, I must respectfully dissent. The district court determined—I believe correctly—that the ALJ, in fact, "considered the opinions of Drs. Geary and Fuller and adequately accounted for the limitations they found."

While the ALJ was required to take the opinions of Drs. Geary and Fuller into account when making his RFC determination, he was not required to include in his RFC every express limitation found by Drs. Geary and Fuller. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (noting that it is the ALJ's responsibililty, not the physician's, to determine residual functional capacity). He was also not required to discuss every piece of evidence from those doctors. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th cir. 2003).

Here, while noting that Van Sickle "takes no psychotropic medication and she does not receive any mental health counseling," the ALJ found that Van Sickle's mental limitations "are, at worst, mild to moderate in severity." The ALJ's findings—although brief—are amply supported by substantial record evidence. Indeed, the ALJ's "mild to moderate" severity rating comes directly from the functional-limitations-assessments performed by Drs. Fuller and Geary.

Dr. Fuller completed two assessments of Van Sickle's functional limitations. In a document entitled "Psychiatric Review Technique," dated 8/16/05, Dr. Fuller rated Van Sickle's functional limitations on a five-level scale: None, Mild, Moderate, Marked, and Extreme. As to "Restriction of Activities of Daily Living," Dr. Fuller opined that Van Sickle had no limitations. As to "Difficulties in Maintaining Social Functioning" and "Difficulties in Maintaining Concentration, Persistence, or Pace," Dr. Fuller opined that Van Sickle had mild limitations as to each. In an undated "Mental Residual Functional Capacity Assessment," Dr. Fuller asserted that Van Sickle was moderately limited as to (1) her ability to perform activities within a schedule and maintain regular attendance, (2) her ability to complete a normal workday and workweek without interruptions, and (3) her ability to interact appropriately with the general public. He said that, in all other areas of functioning, Van Sickle has "no evidence of limitations." Dr. Fuller's ultimate conclusion was that Van Sickle "can work in a simple, unskilled competitive job in a low stress setting that is away from the general public."

Dr. Geary's assessment was virtually the same as Dr. Fuller's. Like Dr. Fuller, Dr. Geary opined that Van Sickle was moderately limited but not precluded as to (1) her ability to perform activities within a schedule and maintain regular attendance, (2) her ability to complete a normal workday and workweek without interruptions, and (3) her ability to interact appropriately with the general public. Dr. Geary found that, in all other areas of functioning, Van Sickle evidenced no limitations. Dr. Geary's ultimate conclusion was that "[Van Sickle] does seem capable of other work-related activities. [She] would very much benefit from some type of training or occupational placement."

At Step 5, the ALJ determined that Van Sickle "has the residual functional capacity to perform at least the exertional requirements of light, unskilled work with the following restrictions: no work that requires acute or fine hearing and no work that involves communicating with the public or co-workers to perform the necessary tasks of the job." Like the district court, I believe that the ALJ fashioned an appropriate RFC based on—and consistent with—the assessments of Drs. Fuller and Geary (both of whom opined that Van Sickle was capable of performing some light work), then posed a proper hypothetical to the VE based on the RFC so fashioned.

This is not a case where the ALJ rejected "significant probative evidence." The ALJ expressly stated that he found the medical opinions of Drs. Geary and Fuller to be "highly probative;" and, while he did not adopt verbatim the limitations identified by the doctors, his RFC captured the essence of the medical evidence. Under the circumstances, we should defer to the ALJ's decision. The district court, in turn, was correct in upholding the Commissioner's denial of benefits to a 46-year-old woman who takes no psychotropic medication, who has not sought and does not receive any mental health counseling, and whose mental limitations "are, at worst, mild to moderate in severity." I would affirm.

** The Honorable William Stafford, Senior United States District Judge for the Northern District of Florida, sitting by designation.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.1. The dissent takes the position that the ALJ's RFC was "based on and — consistent with — the assessments of Drs. Fuller and Geary," noting that the ALJ recognized "mild to moderate" mental limitations. Diss. at 1, 2. The ALJ's RFC, however, did not include these moderate limitations or the "low stress" requirement Dr. Fuller identified, and thus was not consistent with the doctors' assessments. NOW, LET US CONSIDER A SECOND CIRCUIT CASE WHERE THE OPINION OF THE TREATING PHYSICIAN WAS NOT CONTROLLING because it not consistent with the other evidence of record and it was not supported by medically acceptable clinical and laboratory diagnostic techniques.

.

CARRELLI v. COMMISSIONER OF SOCIAL SECURITY

ANGELA KAY CARRELLI, PLAINTIFF-APPELLANT,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE.

No. 09-6192.

United States Court of Appeals, Sixth Circuit.

Filed: July 23, 2010.

Before: COLE and MCKEAGUE, Circuit Judges; MAYS, District Judge.

OPINION

COLE, Circuit Judge.

Plaintiff-Appellant Angela Carrelli seeks review of a district court's decision affirming the decision of an administrative law judge ("ALJ") who denied her request for social security disability benefits. Because substantial evidence supports the ALJ's decision, we AFFIRM.

I           .BACKGROUND

A.        Factual background

Carrelli is a high school graduate with an associate degree in nursing who previously worked as a registered nurse. In August 2004, she applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, alleging that she had been unable to work since August 25, 2001, because of right piriformis syndrome, shoulder problems, chronic pain, headaches, digestive tract problems, depression, anxiety, and difficulty sleeping. The state agency denied her application initially and on reconsideration. She then requested an administrative hearing. At the time of the hearing, she was fifty years old, and she was fifty-one years old when the ALJ issued his decision.

1.      Medical evidence

In August 2001, Carrelli sought treatment for pain in her right hip and was given a cortisone injection. The injection gave her temporary relief, but her pain persisted, and, in September 2001, she sought medical assistance from Dr. David Hauge. Dr Hauge performed a neurological evaluation, found "a very miniscule disc bulge at the L5-S1 level on the left which [was] very, very subtle." (Administrative Record ("AR") 187.) Dr Hauge suspected that Carrelli suffered from piriformis syndrome—a neuromuscular disorder that occurs when the piriformis muscle, a narrow muscle located in the buttocks, compresses or irritates the sciatic nerve. The following month, in November 2001, Carrelli received another cortisone injection. Before the procedure, an examination showed normal strength, sensation, and deep tendon reflexes in both legs. Post-procedure, Carrelli reported positive results and was instructed to return for injections as needed.

In April 2002, still having hip pain, Carrelli underwent an electronyogram and a nerve-conduction study. The tests results were normal. Two months later, Carrelli consulted a pain specialist, Dr. Dennis Harris. His examination revealed that Carrelli had full range of motion and strength in her lower extremities, normal tone and movement, and the ability to walk on her heels and toes without difficulty. In addition, she had normal mood and affect as well as normal thought content and thought process. Dr. Harris diagnosed chronic muscle pain and recommended aggressive physical therapy and epidural infusion. In August of that same year, Carrelli again saw Dr. Harris who administered an epidural infusion for her right hip. After the injection, she reported "good relief," and that she was "able to tolerate physical therapy treatments which helped improve her range of motion." (AR 210.)

At a follow-up visit with Dr. Harris in October 2002, Carrelli reported that she thought she made "some progress" and was "slowly progressing" with physical therapy three times per week. (AR 254.) However, she also reported left hip pain and "expressed frustration" that "she would never get better." (Id.) In addition, she requested another lower-back MRI. It showed only minor degenerative changes and a left-side disc bulge that was unchanged from previous MRIs.

An MRI of Carrelli's pelvis was taken several months later in February 2003. The MRI showed mild hypertrophy, or enlargement, of the right piriformis muscle, compared to the left. Dr. Glenn Jung, who read the MRI, concluded, however, that the "clinical significance of this [was] uncertain," and "[t]here [were] no other significant findings." (AR 520.) An August 2004 CT-scan of Carrelli's pelvis showed no abnormalities. In addition, a bone mineral content exam in September 2003 showed normal bone density in Carrelli's lumbar spine and borderline ostepenia (low bone density) in her left hip. The radiologist recommended follow-up in two to three years. When Carrelli had the recommended follow-up in March 2006, the test showed only mild bone density loss in her left hip.

During this time period, Carrelli also saw Dr. Paul Naylor, an orthopedic surgeon. In October 2004, Dr. Naylor wrote to Carrelli's attorney, explaining that Carrelli had chronic piriformis syndrome and that he thought it was "not likely to get better." (AR 279.) He also thought "with a reasonable degree of medical certainty she [was] not going to be able to carry on as an RN . . . ." (Id.)

In addition to hip pain, Carrelli began reporting left shoulder pain in April 2003. An MRI showed mild hypertrophy, which produced minimal impingement of her shoulder, but no evidence of a complete rotator cuff tear. In March 2004, after Carrelli had experienced pain in her left shoulder for more than one year, Dr. Naylor diagnosed her with chronic shoulder pain. Later that month, he performed an arthroscopic surgical procedure on her left shoulder. In June 2004, Carrelli reported marked improvement. However, in December 2004, Carrelli felt a "pop" in her left shoulder after lifting a twelve-pound turkey. Despite the injury, Dr. Naylor concluded that Carrelli had good range of motion, and an MRI showed only slight irritation.

In January 2005, Dr. Jeffrey Summers, a consulting physician, examined Carrelli. Dr. Summers noted that Carrelli limped and favored her right leg but did not require an aid to walk. She also had mild difficulty rising from a seated position and getting on and off the examination table. Dr. Summers concluded that because of her hip pain, Carrelli would have difficulty sitting, standing, or walking for more than thirty minutes continuously or for more than six hours in a workday and would have difficulty squatting, kneeling, climbing, and stooping on a frequent basis. He also concluded, however, that she would otherwise be able to tolerate work-related activities in this regard. Because of her shoulder injury, Dr. Summers stated that Carrelli should avoid working overhead as well as reaching, pulling, pushing, lifting, or carrying greater than twenty pounds with her left arm, but otherwise, she should tolerate all other work-related activities in this regard. Finally, Dr. Summers found Carrelli to be alert and oriented to person, place, time, and situation; he also found her cognitive function and intelligence to be commensurate with her formal education.

A few months later, in January 2005, Dr. Celia Gulbenk, a state agency physician, reviewed Carrelli's medical records. Dr. Gulbenk concluded that Carrelli could lift or carry up to twenty pounds occasionally and up to ten pounds frequently; was limited in her ability to push or pull with her lower extremities; could stand or walk for about six hours in an eight-hour workday; could sit about six hours in an eight-hour workday; and was limited to occasional climbing, balancing, stooping, kneeling, crouching, and crawling. The doctor also noted that Carrelli's allegations of pain were not "wholly credible." (AR 350.)

During that same month, at the state agency's request, psychologist Tracy Allred examined Carrelli. Dr. Allred noted that Carrelli suffered a "mixture of depression and anxiety symptoms due to circumstantial stresses in her life." (AR 340.) As a result, Dr. Allred found it difficult to differentiate mental health symptoms from medical symptoms. In addition, when questioned about prior mental health treatment, Carrelli was "not interested," denied current treatment, and denied taking any medication for mental health symptoms. (AR 338.) Dr. Allred and Carrelli discussed Carrelli's use of Lorazepam, but Carrelli insisted that it was prescribed for "other medical uses versus depression or anxiety." (AR 339.) Ultimately, Dr. Allred diagnosed anxiety and opined that Carrelli was moderately limited in her ability to understand and remember, to sustain concentration and persistence, to interact socially, and to adapt and tolerate work-related stress.

During the next month, February 2005, Dr. Larry Welch, a state agency reviewing psychologist, agreed with Dr. Allred's conclusions and further opined that Carrelli could understand, remember, and complete detailed tasks on a regular and continual basis with occasional difficulty sustaining concentration, persistence, and pace. He also concluded that she could interact with others without difficulty, could adapt to a routine but not to frequent or fast-paced change, and could set and achieve most long-range goals with only occasional assistance.

That summer, in July 2005, neurologist Dr. Jack Scariano examined Carrelli. He noted that she was oriented to person, place, and time and that her mood and affect were appropriate to the situation. Her speech was appropriate and her recent and remote memory were intact. Her attention span and concentration were good as were her vocabulary, awareness of current events, and past history. Carrelli's touch, pin, and vibratory sensations were normal; she had full strength in all extremities; her balance was normal; and she had a normal gait, with normal heel-toe and tandem walking. She did, however, show marked spasms in her right piriformis muscles. Dr. Scariano diagnosed piriformis syndrome and recommended injections to relieve the pain.

The next year, in March 2007, Carrelli underwent piriformis-release surgery with Dr. Naylor. Piriformis-release surgery involves cutting the tendon of the muscle to relax it. At a follow-up visit two weeks later, Dr. Naylor noted that Carrelli's wound was healing and that she was "ambulating well." (AR 675.) Prior to the procedure, Dr. Naylor had completed a "Medical Source Statement of Ability to Do Work-Related Activities," in which he opined that Carrelli could not lift any weight; could not stand or walk at all; could not sit at all; was limited in her ability to push and pull her lower extremities; and could never climb, balance, kneel, crouch, crawl, or stoop.

In addition to specialists, Carrelli saw a general practitioner, Dr. Mancel Wakham, from September 2001 until November 2006. During that period, Dr. Wakham treated Carrelli for her hip and shoulder injuries as well as other medical issues not related to this appeal. He referred her to specialists, regularly prescribed pain medications, and prescribed sleep aids and medications used to treat anxiety. In December 2003, Dr. Wakham wrote a brief letter opining that Carrelli's "medical disabilities are permanent in nature. Her physical limitations keep her from performing duties as a registered nurse or any other gainful employment." (AR 65.) Three years later, in December 2006, Dr. Wakham completed a "Medical Source Statement of Ability to Do Work-Related Activities," and opined that Carrelli could not lift any weight; could not stand or walk at all; could not sit at all; was limited in her ability to push or pull in her lower extremities; and could never climb, balance, kneel, crouch, crawl, or stoop.

2.      Physical therapy

Carrelli attended a series of physical therapy sessions for her right hip and left shoulder from May 2002 through November 2006. During these sessions, she set goals for herself and charted her progress. At an initial evaluation in April 2003, for instance, Carrelli's goals for the next four weeks of therapy included tolerating walking greater than 1.5 hours with decreased pain medication and increasing "overall functional status to allow her to drive a car and eventually return to work." (AR 600.) At a November 2004 initial evaluation, Carrelli reported that she was doing "fairly well" after her rotator cuff surgery. (AR 563.) She also reported continued pain in her right buttock, which left her unable to drive for long periods of time. Despite the pain, however, she continued to walk at a local track. At an initial evaluation in February 2006, Carrelli reported that she was having difficulty sitting or standing for long periods of time and that she could not sit for longer than one minute without have to shift positions.

A.     Procedural history

1.      Administrative hearing

An administrative hearing was held in May 2007. At the hearing, Carrelli testified that her hip was her most significant medical problem. She explained that she experienced spasms in her back, buttocks, and leg; had to change positions frequently; and could not sit for more than five minutes at a time. She further explained that she could stand for an hour or two but then needed to rest. She described her second most serious problem as concentration, explaining that her lack of focus was related to how much attention she had to pay to the pain and the dosage of medication needed to control the pain. When asked by the ALJ if she had anxiety or depression, she testified that she had more anxiety than depression but was not seeking treatment for her anxiety. Carrelli also testified that she had been taking continuing education courses for nursing; had a driver's license and had driven in the past month; liked to read; did stretching exercises every morning; and tried to walk at a track three times per week. Finally, she stated that she took an hour-long bath every night to relax her muscles.

Next, the ALJ asked a vocational expert ("VE") what work was available for a person of Carrelli's age, education, and vocational background, who was able to perform light work with a sit-stand option; no pushing or pulling or leg controls with the right leg; only occasional lifting and carrying with the left arm; no climbing or crawling; and only occasional stopping or bending. The VE responded that such a person could not perform Carrelli's past work as a registered nurse but could perform other jobs such as a medical unit clerk, a medical companion, or a general clerk. The VE explained that medical companion jobs involve no lifting but entail sitting with an ill person, monitoring her position, and notifying other personnel if assistance is required. Later, Carrelli's attorney asked whether a person could perform medical unit clerk work if the person had difficulty remaining alert or was easily distracted. The VE responded that it would depend on the severity of those limitations. Carrelli's attorney also asked the VE if a person who missed more than two days of work per month was employable; the VE responded that "[g]enerally, over two absences, consistently, per month, is the cutoff point." (AR 755.)

In addition to the testimony offered during the administrative hearing, a surveillance tape of Carrelli was admitted as part of the record. The tape is also evidence in litigation between Carrelli and a private disability insurer. The tape was submitted at the ALJ's request.|

2.       The ALJ's decision

The ALJ found that Carrelli had severe impairments of right piriformis syndrome, with piriformis-release surgery in March 2007; history of left shoulder impingement syndrome, with left shoulder arthroscopy and rotator cuff repair in March 2004; and minimal disc bulging in her lower back. The ALJ also found that Carrelli does not have a severe mental impairment. The ALJ then concluded that Carrelli's physical impairments limited her to a restricted range of light work with a sit-stand option. The ALJ further found, based on the VE's testimony, that there were jobs Carrelli could perform, such as medical unit clerk, medical companion, and general clerk.

3.      District court's decision

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Carrelli timely filed a civil action in the United States District Court for the Eastern District of Tennessee for review of the ALJ's decision. The magistrate judge found there was substantial evidence for the ALJ's decision and recommended affirming. The district court agreed and adopted the magistrate judge's report and recommendation. Carrelli timely appealed.

II.        ANALYSIS

A.    Standard of review

Under 42 U.S.C. § 405(g), our review of the Commissioner's decision is limited to determining whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Substantial evidence means "more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. We may not try the case de novo, resolve conflicts in evidence, or decide questions of credibility. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). If supported by substantial evidence and decided under the correct legal standard, the Commissioner's decision must be affirmed even if this Court would decide the matter differently, and even if substantial evidence also supports the claimant's position. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc).

2. Legal framework for evaluating disability claims

"The plaintiff has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability . . . ." Wyatt v. Sec'y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). The Social Security Administration defines a "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). To make a determination as to disability, an ALJ undertakes a five-step sequential evaluation mandated by regulation. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004). First, the claimant must demonstrate that she has not engaged in substantial gainful activity during the claimed period of disability. 20 C.F.R. § 404.1520(a)(4)(i). Second, the claimant must show that she suffers from a severe medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). Third, if the claimant shows that her impairment meets or medically equals one of the impairments listed in 20 C.F.R. pt. 404, Subpt. P, App. 1, she is deemed disabled. § 404.1520(a)(4)(iii). If not, the ALJ fourth determines whether, based on the claimant's residual functioning capacity ("RFC"), the claimant can perform her past relevant work, in which case the claimant is not disabled. § 404.1520(a)(4)(iv). If so, the ALJ fifth determines whether, based on the claimant's RFC, as well as her age, education, and work experience, the claimant can make an adjustment to other work, in which case the claimant is not disabled. § 404.1520(a)(4)(v). The claimant bears the burden of proof during the first four steps, but the burden shifts to the Commissioner at step five. Wilson, 378 F.3d at 548 (citing Walters, 127 F.3d at 529). To prevail at step five, the Commissioner must identify a significant number of jobs in the economy that accommodate the claimant's RFC and vocational profile. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).

Carrelli argues that the ALJ erred in two ways. First, she claims the ALJ erred at step two by finding that her anxiety disorder was not a severe impairment. Second, she argues that the ALJ erred at step five by concluding that she was capable of making a successful adjustment to other work and that such work is available.

C.     Step two: severe mental impairment

At step two, Carrelli must show that she suffers from a severe medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is not considered severe when it "does not significantly limit [one's] physical or mental ability to do basic work activities." § 404.1521(a).

Relying on the opinions of Dr. Allred and Dr. Welch, Carrelli argues that the ALJ failed to take account of her severe mental impairments. As we have discussed, Dr. Allred concluded that Carrelli presented a "mixture of depression and anxiety symptoms." (AR 342.) However, Dr. Allred found it difficult to determine the cause of Carrelli's anxiety—whether it was caused by mental-health symptoms or medical symptoms—because of the "circumstantial stresses" in Carrelli's life. (AR 342.) In addition, although Dr. Allred concluded that some of Carrelli's mental abilities were limited due to anxiety, Dr. Allred further concluded that Carrelli was only "moderately limited." (AR 340.) Dr. Welch came to a similar conclusion. He opined that Carrelli could understand, remember, and complete detailed tasks on a regular and continual basis with only "occasional" difficulty sustaining concentration, persistence, and pace. (AR 353.) We consequently conclude that, although Dr. Allred's and Dr. Welch's diagnoses might—with additional evidence—support the conclusion that Carrelli suffers a severe mental impairment, they do not necessarily lead to that conclusion.

Carrelli also relies on her history of using psychotropic drugs, including Ativan, Lorazepam, Zoloft, Cymbalta, and Ritalin, as evidence of her mental impairments. Unfortunately for her, use of such drugs is not necessarily indicative of a severe mental impairment. See Thacker v. Sec'y of Health & Human Servs., No. 90-5546, 1990 U.S. App. LEXIS 21866, at *7 (6th Cir. Dec. 12, 1990) ("The mere fact that claimant is taking medication to calm his nerves does little to establish mental impairment."). Moreover, the record indicates that these drugs were prescribed for sedation, muscle spasms, and sleeping. In fact, Carrelli told Dr. Allred that she used Lorazepam (commonly used to treat anxiety), not for depression and anxiety, but for other medical purposes. Thus, her reliance on her psychotropic drug-use falls short of conclusively demonstrating a severe mental impairment.

Moreover, there is evidence on the other side of the scale supporting the ALJ's determination. First, other doctors reported that Carrelli suffered no mental impairments. Neurologist Dr. Scariano concluded that Carrelli had "no significant affect distress, memory or concentration problems, or problems with insight and judgment." (AR 376-77.) Dr. Summers also observed that Carrelli was alert and oriented to person, place, time, and situation; her cognitive function and intelligence were commensurate with her formal education; and she interacted well with him, with no abnormal behaviors or mannerisms. Second, Carrelli's claims that she had difficulty concentrating and could not follow a newspaper were inconsistent with her own testimony that she takes continuing education classes to maintain her nursing license, cares for her teenage son, prepares simple meals, enjoys reading, and drives. Third, the record shows that Carrelli has not sought treatment for her alleged mental impairments. Although not dispositive, treatment that a claimant has received is a relevant factor in evaluating the alleged intensity and persistence of her symptoms. See 20 C.F.R. § 404.1529(c)(3)(v). Finally, Carrelli herself attributes much of her anxiety to her physical condition. During the administrative hearing, she testified that the anxiety and depression that she suffers is related to pain. This self-assessment supports the ALJ's conclusion that Carrelli's anxiety was a symptom of her physical impairment and not a separate disorder.

In the final analysis, we conclude that substantial evidence supported the ALJ's conclusion that Carrelli does not suffer from a severe mental impairment.

D.    Step five: successful adjustment to other available work

Carrelli also challenges the ALJ's conclusion that there were jobs available that Carrelli could perform. She launches this attack in three ways. First, she claims that the ALJ was predisposed to find against her. In other words, she claims he was biased. Next, she argues that the ALJ improperly ignored the opinions of her treating physicians. Finally, she claims that the ALJ devised inaccurate hypothetical questions.

1.        Bias

We apply the "presumption that policymakers with decisionmaking power exercise their power with honesty and integrity," and "any alleged prejudice must be evident from the record and cannot be based on speculation or inference." Navistar Int'l Transp. Corp. v. U.S. EPA, 941 F.2d 1339, 1360 (6th Cir. 1991). In addition, any claim of bias must be supported by a "strong showing" of bad faith. City of Mount Clemens v. U.S. EPA, 917 F.2d 908, 918 (6th Cir. 1980) (internal quotation marks omitted). Carrelli has offered no evidence to meet this high standard, and we easily reject her assertion.

2.      Treating physicians' opinions

As discussed, both Dr. Wakham and Dr. Naylor wrote letters and completed evaluation forms opining that Carrelli's ability to work was highly limited. Carrelli claims that the ALJ completely disregarded these opinions, but she misreads the decision. Contrary to her accusation, the ALJ did not disregard the doctors' opinions; instead, the ALJ concluded that the opinions "grossly exaggerat[ed]" Carrelli's limitations, and the "ridiculously oppressive limitations" were inconsistent with the objective evidence of the record, clinical exam notes, Carrelli's reported daily activities, and the ALJ's observations of her at the administrative hearing. (AR 18, 21.) Thus, the ALJ did not disregard the opinions—he simply found them unpersuasive.

Carrelli also argues that the opinions of her treating physicians should have been given controlling weight. She is correct that an ALJ generally should give greater deference to a treating physician's opinion than to a non-treating physician's opinion. See Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (applying the treating-physician rule). However, an ALJ "must" give a treating source controlling weight only if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and is "not inconsistent with other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see also Blakley, 581 F.3d at 406. Indeed, "`[i]t is an error to give an opinion controlling weight simply because it is the opinion of a treating source . .. if it is inconsistent with the other substantial evidence in the case record.'" Id. (quoting Soc. Sec. Rul. 96-2p, 1996 SSR LEXIS 9, at *5 (July 2, 1996)) (alteration in original). If, however, the ALJ does not accord controlling weight to a treating physician, the ALJ still must determine how much weight is appropriate by considering the record as a whole. Wilson, 378 F.3d at 544; see also 20 C.F.R. § 404.1527(d)(4) ("Generally the more consistent an opinion is the with the record as whole, the more weight we will give that opinion."); 20 C.F.R. § 404.1527(b) ("In deciding whether you are disabled we will always consider the medical opinions in your case record together with the rest of the relevant evidence we receive.").

The ALJ did that here. The ALJ first noted that the MRIs showed only "very miniscule" lower back disc bulging with no nerve root impingement, mild hypertrophy of the piriformis muscle, and a shoulder strain after holding a twelve pound turkey with only her left arm. (AR 18.) The ALJ then noted that Carrelli's pain decreased after her piriformis release surgery in March 2007, and that after her shoulder surgery in March 2004, she had good range of motion and only minimal tenderness. (Id.) The ALJ further noted the numerous diagnostic tests showing no physical or neurological abnormalities, including CT-scans, EMGs, MRIs, and nerve-conduction studies. (Id.) The ALJ then relied on Dr. Summers's finding that Carrelli had no neurological or musculosketal abnormalities, along with his assessment that Carrelli could lift twenty pounds and sit, stand, or walk for up to six hours, but no more than thirty minutes at a time. (AR 19.) The ALJ explained that he gave "considerable weight" to Dr. Summers's assessment because the assessment took account of Carrelli's left shoulder and hip pain but also was consistent with the benign diagnostic tests and Carrelli's reported and observed daily activities. (Id.) Moreover, as the ALJ noted, Dr. Gulbenk, an expert in Social Security disability evaluation, agreed with Dr. Summers' assessment. (Id.)

Consequently, we conclude that the opinions of Dr. Wakham and Dr. Naylor were inconsistent with the record as a whole, and the ALJ was not required to defer to their opinions.

3.      Hypothetical questions

Finally, Carrelli argues that the questions the ALJ posed to the VE did not accurately portray her mental and physical impairments. See Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). In particular, she claims that none of the hypothetical questions took account of her mental impairments requiring the use of psychotropic drugs, the number of frequent absences that her impairments would cause, and her need to be able to sit and stand at will. Carrelli further contends that when the VE considered these additional limitations, the VE testified that no jobs would be available for Carrelli.

An ALJ's hypothetical question to a VE must accurately portray a claimant's physical and mental impairments, but it is also "well established that an ALJ may pose hypothetical questions to a vocational expert and is required to incorporate only those limitations accepted as credible by the finder of fact." Casey v. Sec'y of Health and Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993). Here, our review of the record reveals that the ALJ properly incorporated his findings into the determination of Carrelli's RFC. The ALJ then presented Carrelli's RFC, along with her age, education, and past relevant work experience to the VE in hypothetical questions. The VE subsequently concluded that a number of jobs that Carrelli was able to perform existed.

Carrelli is correct that the VE testified that the identified jobs would be eliminated for a person who had difficulty remaining alert or for a person who was easily distracted, and the VE also testified that an employee with frequent absences would have trouble maintaining employment. But consideration of these additional factors is beside the point. When asked a hypothetical question encompassing the limitations that the ALJ found credible, the VE testified that jobs existed. The additional limitations offered by Carrelli's attorney—limitations that the ALJ found not credible—need not be considered. We therefore reject Carrelli's challenge.

III.       CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.* The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of Tennessee, sitting by designation.

HERE IS A THIRD CIRCUIT CASE WHERE THE TREATING PHYSICIAN’S OPINION WAS NOT CONTROLLING because it was not supported by medically acceptable clinical and laboratory diagnostic techniques.

WRIGHT v. COMMISSIONER OF SOCIAL SECURITY

BARRY WRIGHT, Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY.

No. 09-2447.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) February 11, 2010.

Filed: July 7, 2010.

Before: SLOVITER, ROTH, and TASHIMA,^{[ 1 ]} Circuit Judges.

OPINION

TASHIMA, Circuit Judge.

Barry Wright appeals from the District Court's order affirming the decision of the Commissioner of Social Security ("Commissioner") denying Wright's application for Social Security Disability Insurance Benefits and Supplemental Security Income. We will affirm.^{[ 2 ]}

I.

Our review is limited to determining whether substantial evidence supports the Commissioner's decision to deny benefits. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). If the Commissioner's findings of fact are supported by substantial evidence, such findings are binding. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

Because the parties are familiar with the facts and procedural history of the case, we describe them only briefly. Wright is a 59-year-old man with a GED and an associate's degree in small business management. He has work experience as a longshoreman. In July 2005, while working as a longshoreman, equipment Wright was operating caught on fire. Wright sustained no physical injuries, but sought treatment for anxiety and nervousness at the Pennsylvania Hospital emergency room. He received treatment from Harry Doyle, M.D., whose records cover August 2005 to May 2007.

Wright applied for benefits on May 30, 2006, alleging disability since July 28, 2005, due to post-traumatic stress disorder ("PTSD") resulting from the workplace fire.  After his application was denied on August 24, 2006, Wright sought a hearing before an Administrative Law Judge ("ALJ").

At the September 13, 2007, hearing, the ALJ heard testimony from Wright, vocational expert Bruce Martin, and medical expert Richard Saul, M.D.  Wright was represented by an attorney.

At the hearing, Wright testified that he lives at his brother's house, where he does his own laundry and cleans up after himself.  Wright testified that during the day he watches TV and smokes cigarettes. Wright testified that his "life is not going good right now," that he is "stressed out a lot," that he is "almost going out of [his] mind," that "people tick [him] off easily," and that he is "just all messed up."

The ALJ found that Wright's statements about the intensity, persistence, and effects of his symptoms were not entirely credible.  The ALJ determined that Wright was "not disabled" because he was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy."

The Appeals Council affirmed the ALJ's decision on June 26, 2008.  Wright then sought review in the District Court. (App. 15-16.) On April 21, 2009, the District Court entered judgment in favor of the Commissioner. (App. 14.) Wright timely appealed, arguing that the ALJ erred in (1) giving limited weight to the opinion of his treating psychiatrist, Dr. Doyle; and (2) finding Wright not entirely credible.

II.

Wright is disabled for purposes of the Social Security Act, if he can demonstrate "that there exists a medically determinable basis for an impairment that prevents him from engaging in any `substantial gainful activity' for a statutory twelve-month period." Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987) (citing 42 U.S.C. § 423(d)(1)). To determine whether a claimant is disabled, an ALJ must perform a five-step, sequential evaluation, reviewing: (1) the claimant's current work activity; (2) the medical severity and duration of the claimant's impairments; (3) whether the claimant's impairments meet or equal the requirements of an impairment listed in the regulations; (4) whether the claimant has the residual functional capacity ("RFC") to return to past relevant work; and (5) if the claimant cannot return to past relevant work, whether she can "make an adjustment to other work" in the national economy. 20 C.F.R. 404.1520(a)(4)(i)-(v). The claimant bears the burden of proof at steps one through four. Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007). The Commissioner bears the burden of proving at step five that a significant number of jobs exist in the national economy that are appropriate for the claimant. Id.

The ALJ followed this five-step process. The ALJ found that Wright's PTSD was a "severe" impairment, but that it did not meet the requirements of the impairments listed in the regulations. The ALJ also found that although Wright could not perform his past relevant work as a longshoreman, he had the RFC to perform work at all exertional levels and to perform simple, repetitive, routine tasks with low social contact.  Based on this RFC, the ALJ found that Wright was not disabled because he could perform jobs, such as commercial cleaner, that were available in the local and national economies.

Wright contends that the ALJ erred by giving limited weight to the opinion of his treating psychiatrist, Dr. Doyle, who opined in an August 2007 "Medical Source Statement of Ability to Do Work-Related Activities (Mental)" that Wright was "extremely limited" in seven work-related activities. 

A treating physician's opinion is accorded controlling weight only if the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2); see also Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001); Jones v. Sullivan, 954 F.2d 125, 128-29 (3d Cir. 1991) ("[I]n the absence of contradictory medical evidence, an ALJ in a social security disability case must accept the medical judgment of a treating physician."). Here, the ALJ noted several inconsistencies in the record.

First, the ALJ noted that Dr. Doyle's report was inconsistent with the notes from three consultative examinations by, Wolfram Rieger, M.D. (Tr. 16.) Dr. Rieger opined that, while he agreed with Dr. Doyle's PTSD diagnosis, he disagreed with Dr. Doyle's assessment that Wright was totally disabled.  After a December 2005 examination, Dr. Rieger opined that Wright's PTSD "ha[d] improved appreciably" and that he "[could] work in any other job for which he is physically, by training, education and experience qualified."  In May 2006, Dr. Rieger concluded that Wright had "fully and completely recovered from his [PTSD]" and that "[d]espite alleged residual post-traumatic stress disorder symptoms he [could] return to his former job on a full time, full duty basis."

Second, the ALJ noted that Dr. Doyle's report was inconsistent with Dr. Saul's testimony at the hearing.  Based on reviewing Wright's file and observing Wright as he testified, Dr. Saul testified that Wright was capable of performing simple, routine, repetitive work, with low social contact.

Third, the ALJ found that Dr. Doyle's August 2007 report was inconsistent with his own treatment notes.  For example, treatment notes from two January 2006 visits indicated that Dr. Doyle discussed a plan for a graduated return to work.  Also, a July 2006 assessment indicated that Wright had only slight to marked limitations.  However, the August 2007 report indicated that Wright had extreme limitations in several work-related activities, and Dr. Doyle made no explanation for the change.

Wright contends that the ALJ erred because he stated that the last day of treatment by Dr. Doyle prior to his August 2007 report was in February, when it was actually in May; and because the ALJ faulted Dr. Doyle's reports for making references to other stressors, such as Wright's preoccupation with his worker's compensation litigation, financial issues, and daughter's illness. To the extent these amount to errors, they are minor and harmless. We conclude that, even without these reasons for giving less weight to Dr. Doyle's August 2007 report, the ALJ gave an adequate explanation supported by substantial evidence in the record.

Wright next contends that the ALJ erred in finding that Wright's "statements concerning the intensity, persistence and limiting effects of [his] symptoms [were] not entirely credible."

Wright is correct that an ALJ must give weight to a claimant's testimony "when this testimony is supported by competent evidence." See Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir. 1999); Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) ("Allegations of pain and other subjective symptoms must be supported by objective medical evidence." (citing 20 C.F.R. § 404.1529)). However, as discussed above, the record lacks objective medical evidence supporting Wright's subjective complaints. Specifically, the record contains Dr. Rieger's opinion that Wright was "trying to drag on his workmen's compensation case in order to maintain a posture of at least partial disability in order to obtain maximum secondary gains in third party litigation."  The record also contains Dr. Rieger's opinion that Wright exaggerated when he completed the Minnesota Multiphasic Personality Inventory ("MMPI") test and that his "credibility ha[d] not been enhanced by his test behavior."  The MMPI revealed that Wright suffered from "schizophrenia, possibly paranoid type or delusional disorder," diagnoses that Dr. Rieger indicated were not clinically supportable.  Thus, we conclude that substantial evidence in the record supports the ALJ's credibility assessment.

III.

For the above-stated reasons, we will affirm the judgment of the District Court.

Consider the case of TAYLOR v. ASTRUE.

KIMBER TAYLOR, Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee.

No. 09-35510.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 2010 Portland, Oregon.

Filed July 6, 2010.

Before: HALL, FERNANDEZ, and McKEOWN, Circuit Judges.

MEMORANDUM

Kimber Taylor ("Taylor") appeals from a judgment of the district court affirming a decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") disability benefits pursuant to Title XVI of the Social Security Act ("the Act").

The district court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

I.

Because the parties are familiar with the factual and procedural history of this case, we will not recount it here except as necessary to our disposition of the claims of error raised on appeal.

II.

Taylor raises numerous claims of error as to the Commissioner's findings at Steps Two, Three, and Five of the five-step sequential evaluation process that she is not "disabled" within the meaning of the Act.^{[ 2 ]} The final decision of the Commissioner (here, that of the ALJ) must be affirmed if it is supported by substantial evidence and the correct legal standards were applied. See Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

A.

At Step Two, the ALJ was required to determine whether Taylor has a medically determinable impairment or combination of impairments that is "severe." 20 C.F.R. § 416.920(c). An impairment is not "severe" if it does not significantly limit her ability to do basic work activities. Id., § 416.921(a).

The Commissioner does not dispute that Taylor has medically determinable mental impairments, as confirmed by two non-treating Disability Determination Services ("DDS") psychologists, who opined—in substantial agreement with her primary treating physician and a consulting psychologist who examined her—that she suffers from depressive and anxiety disorders. The Commissioner contends, however, that substantial credible evidence supports the ALJ's finding at Step Two of only "non-severe" impairments. We agree.

In particular, a body of largely undisputed evidence supports the finding that Taylor's mental impairments respond well to treatment with anti-depressant and anti-anxiety medications, and medication used to treat attention deficit disorders, so long as she complies with her treatment plan. "Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits." Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).

There is also substantial evidence from a variety of sources—including the DDS psychologists' opinions that her mental impairments result in no more than "mild" functional limitations when the effects of drug and alcohol abuse are excluded, Taylor's own and her friend's reports of her daily activities since her alleged date of onset, and records of the Oregon Vocational Rehabilitation Division ("VRD")—that directly supports the ALJ's finding that Taylor's impairments are not "severe." In addition, there is substantial evidence that Taylor and her caregiver have exaggerated the extent to which her mental impairments limit her ability to work, and the assessments of the severity of her mental impairments from her treating physician and the examining psychologist are based primarily on her discredited self-reporting. The ALJ properly rejected the latter opinions by providing specific, legitimate reasons for doing so that were supported by substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)

B.

At Step Three, the ALJ was required to determine whether Taylor has any impairment or combination of impairments that meets or equals those impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. In evaluating whether Taylor has such a "listed" disabling condition, the ALJ was required to consider whether her mental impairments meet the so-called "B criteria": (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation. Id., § 12.00(C). If Taylor's impairments meet the B criteria, the ALJ was required to find her disabled. 20 C.F.R. § 416.920(a)(4)(iii); 20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04 (affective disorders), 12.06 (anxiety disorders).

Taylor does not suggest that she meets the fourth B criterion, as there is no evidence of any episode of "decompensation" in this record. She contends, however, that she is seriously limited in her ability to function independently, appropriately, effectively, and on a sustained basis in the other three areas. The credible evidence in the record does not support Taylor on this point.

As noted, the DDS psychologists opined that, excluding any effects of alcoholism or drug addiction, which Taylor agrees should not be considered, she has only "mild" restriction of activities of daily living, and "mild" difficulties in maintaining social functioning, concentration, persistence, and pace. Based on this evidence alone, the ALJ properly could find that Taylor does not have any listed impairment. But the ALJ's determination is also supported by medical records showing improvement in her conditions with treatment that began in 2003, lay evidence of her activities of daily living and social functioning since her alleged date of onset, and VRD records.

C.

Taylor further contends that the ALJ abused his discretion by denying her request for a second consultative examination to obtain neuro-psychological testing. We disagree. The Social Security Administration ("SSA") has broad latitude in ordering consultative examinations. Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001). The SSA may purchase a consultative examination when the evidence as a whole is not sufficient to support a decision on a claim. 20 C.F.R. § 416.919a(b). In this case, however, the ALJ did not find the evidence insufficient to support his decision. Rather, in finding that Taylor was not disabled at Steps Two and Three, the ALJ found dispositive a body of largely undisputed evidence showing that Taylor experienced notable improvement in her mental health status and functioning throughout the period from the date of onset to the date of decision, as a result of medications prescribed by her treating physician and other treatment she received at his clinic. See Warre, 439 F.3d at 1006. Thus, the ALJ did not err in declining to order a second consultative examination.

D.

At Step Five, the ALJ was required to determine whether, considering her RFC, age, education, and work experience, Taylor is able to perform any work that exists in significant numbers in the national economy. RFC is the ability to perform physical and mental work activities on a sustained basis despite limitations from all of her impairments, whether severe or non-severe. 20 C.F.R. § 416.920(e); id., § 416.945(a). It is SSA's burden at Step Five to provide evidence demonstrating that other work exists in significant numbers in the national economy that Taylor can do. 20 C.F.R. § 416.912(g); id., § 416.960(c).

The ALJ's alternative finding at Step Five was supported by substantial evidence. Medical records documenting Taylor's improved mental status and functioning while taking prescribed medications, a statement from her friend regarding her daily activities and relationships with other friends and neighbors, and the testimony of a vocational expert ("VE"), support the ALJ's findings that Taylor has the RFC to perform simple, routine tasks requiring only light to medium exertion, and that she can perform jobs that exist in significant numbers in Oregon and in the national economy, including mail sorter, laundry worker, and food sorter. Conflicting evidence from her care-giver and two former employers does not negate the ALJ's finding at Step Five, and the ALJ could properly reject the reports and opinions of the treating physician and examining psychologist about her functional limitations, as they were based primarily on Taylor's discredited self-reports. See Batson, 359 F.3d at 1197.

IV.

For all of these reasons, the district court judgment upholding the Commissioner's denial of SSI disability benefits is AFFIRMED.

If an ALJ makes a mistake in deciding your case, an appeals court can decide if it was a big mistake or a small one. If the court considers it small, then the ALJ only committed harmless error. However, the error was not harmless to the claimant. She lost her benefits. To her that was a grievous error.

Consider the following case:  

CAROL A. GRAHAM, Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

No. 09-16139.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 16, 2010 — San Francisco, California.

Filed June 28, 2010.

Before: RIPPLE, RYMER and FISHER, Circuit Judges.

Carol A. Graham appeals an adverse grant of summary judgment in favor of the Commissioner of Social Security ("Commissioner"), upholding the denial of her application for disability insurance benefits and supplemental security income payments. Because the Commissioner's decision is supported by substantial evidence, we affirm.

Although a close case, we are persuaded that the administrative law judge ("ALJ") gave "clear and convincing" reasons for rejecting the opinion of Graham's treating psychiatrist, Dr. S. Arnold Nelson. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Dr. Nelson's April 2003 opinion referred to Graham's "ongoing insecurity, fears, depression, [and] nightmares," but his progress notes, which cover ten visits over two years, made only limited references to these symptoms. In the portions of the progress notes calling for the physician to record his observations of the patient, Dr. Nelson reported "OK" or "unremarkable" for eight of Graham's ten visits.

Graham also received Global Assessment of Functioning ("GAF") scores indicating only moderate or slight difficulty in occupational functioning. Graham correctly points out that the GAF scores are not dispositive because they were assessed at a time when she was not working. See Social Security Ruling 85-15 (1985) ("Individuals with mental disorders" may adopt "a highly restricted . . . lifestyle within which they appear to function well," but "may cease to function effectively when facing such demands as getting to work regularly, having their performance supervised, and remaining in the workplace for a full day."). But the (9th Cir. 2001).

The ALJ erroneously questioned whether Dr. Nelson was a treating source, but the error was harmless because the ALJ nonetheless applied the correct legal standard. See Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir.2006) ("We have . . . affirmed under the rubric of harmless error where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ's ultimate disability conclusion.").

AFFIRMED.

On occasion, the ALJ may find the evidence from a non-treating source more persuasive than the Treating Physician. The opinion of a treating physician "must be given substantial or considerable weight unless `good cause' is shown to the contrary." Good cause is shown when the: "(1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records." If the ALJ can give specific reasons for failing to give the opinion of a treating physician controlling weight, and those reasons are supported by substantial evidence in the record, then there will be no reversible error.

That is what happened in the following case.

GILABERT v. COMMISSIONER OF SOCIAL SECURITY

MONICA LYA GILABERT, Plaintiff-Appellant,

v.

COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 10-11331. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

September 21, 2010.

Before CARNES, MARCUS and KRAVITCH, Circuit Judge

PER CURIAM:

Monica Gilabert appeals from the Commissioner of Social Security's denial of her application for disability benefits. According the Commissioner's decision the deference required by law, we affirm.

I. Background

In 2004, Monica Gilabert filed an application for disability benefits, alleging an inability to work due to bipolar and panic disorders, spastic colon, and thyroid disease. She claimed an onset date of November 16, 2003, soon after she lost her job as a makeup artist.

Gilabert experienced numerous medical difficulties after her alleged onset date. She suffered physical complications following a 2003 gastric bypass operation, including a spastic colon and gastric ulcer that required her hospitalization. In February 2005, Gilabert was admitted to the hospital after overdosing on Seroquel and was diagnosed with bipolar disorder and opiate dependence. In May 2005, Gilabert was involuntarily admitted to Orlando Regional Hospital for suicidal ideation. In August 2005, she was admitted to the hospital again for moderate bipolar disorder and stimulant abuse.

In October 2006, Dr. Adly Thebaud, Gilabert's treating physician, completed a mental residual functioning capacity (RFC) evaluation for Gilabert. He noted that she was having hallucinations and that she was paranoid. He stated that she suffered from depression, mood swings, irritability, and could not handle work stress, concentrate, or function in the workplace. Despite this assessment, between 2003 and 2007, Thebaud consistently rated Gilabert's Global Assessment of Functioning (GAF) from the high 50s to 60s, a rating indicating only moderate difficulty in functioning. In March 2004, Thebaud also stopped all of Gilabert's medications except Trazodone after Gilabert informed him that she was pregnant.

Two other doctors also performed RFC evaluations on Gilabert between 2003 and 2007. In June 2004, Dr. Alvarez-Mullin completed an RFC and noted that Gilabert had suffered only mild limits on her daily activities and social functioning. He also found that Gilabert had moderate limitations in concentration but had the ability to work a full week. In May 2005, Dr. Bee completed a psychiatric review at the state's request. Although he noted Gilabert's mood disturbance and panic disorder, he found only mild limits on her social functioning and concentration. He also completed an RFC consistent with Dr. Alvarez-Mullin's evalution.

After her initial application for disability benefits was denied, Gilabert appealed this decision to an administrative law judge (ALJ). At a hearing in February 2007, Dr. Neil Lewis testified as a consulting psychologist for the Commissioner of Social Security. Lewis disagreed with Thebaud's 2006 RFC evaluation, stating that it was inconsistent with the level of severity described in Thebaud's progress notes and in the GAF scores he assigned Gilabert. In rebuttal, Gilabert introduced Thebaud's deposition testimony. This testimony stated that he had based the RFC on his progress notes and his experience treating Gilabert. He also testified that although Gilabert's bipolar disorder would make her appear more normal at times, during the mood swings she was unable to function and could not work. At a supplemental hearing, Lewis responded to Thebaud's deposition testimony. He agreed that Gilabert had a documented history of chronic affective disorder that had caused more than minimal limitations on her ability to work for at least two years, but he noted that on some occasions Gilabert's mental status exams indicated that her concentration was fine.

After hearing this evidence, the ALJ stated that if he found Dr. Thebaud's RFC credible, "there would be no question that [Gilabert could not] work." In his decision, however, the ALJ "discredited" Dr. Thebaud's RFC as inconsistent with Thebaud's own notes and the medical record as a whole. In particular, the ALJ noted that Dr. Thebaud's GAF scores did not support the level of disability in the RFC. Giving weight to the opinions of the non-examining physicians and taking the record evidence as a whole, he concluded that Gilabert did not qualify for disability benefits.

Gilabert appealed this decision to the district court, arguing that the ALJ had failed to give the necessary weight to opinion of her treating physician, Thebaud, and that substantial evidence did not support the ALJ's decision. The district court approved the Commissioner's denial of benefits.[ 4 ] It concluded that the ALJ had given the proper weight to Thebaud's notes but not to the RFC assessment because the RFC was inconsistent with those notes. Gilabert appeals.

II. Discussion

When reviewing the ALJ's decision, we ask whether it was supported by substantial evidence and whether the correct legal standards were applied. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). "Substantial evidence is something more than a mere scintilla, but less than a preponderance. If the Commissioner's decision is supported by substantial evidence, this court must affirm, even if the proof preponderates against it." Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (internal quotation marks omitted). Under this limited standard of review, we will not decide the facts anew, make credibility determinations, or re-weigh the evidence. Moore, 405 F.3d at 1211.

Gilabert argues that the ALJ applied the wrong legal standard and made findings unsupported by substantial evidence when he discredited Thebaud's RFC and relied on the opinion of a non-examining consultant. In particular, she contends that the ALJ was required to consider Thebaud's RFC because it was consistent with his progress notes and her frequent hospitalizations. Furthermore, she argues that the ALJ's reliance on Thebaud's GAF scores to discredit his RFC was unwarranted because GAF scores do not take into consideration occupational functioning.

The opinion of a treating physician "must be given substantial or considerable weight unless `good cause' is shown to the contrary." Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause is shown when the: "(1) treating physician's opinion was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) treating physician's opinion was conclusory or inconsistent with the doctor's own medical records." Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. 2004). Where the ALJ articulated specific reasons for failing to give the opinion of a treating physician controlling weight, and those reasons are supported by substantial evidence, there is no reversible error. Moore, 405 F.3d at 1212.

In this case, therefore, the critical question is whether substantial evidence supports the ALJ's articulated reasons for rejecting Thebaud's RFC. The ALJ explained that Thebaud's RFC was "inconsistent with his own treatment record, as well as inaccurate." In particular, he found that Thebaud's RFC assessment conflicted with his frequent decisions to assign Gilabert GAF scores that indicated only moderate psychiatric symptoms. The ALJ also cited Lewis's testimony as further evidence of this discrepancy.

Here, more than a "mere scintilla" of evidence supports the ALJ's reasoning. Dyer, 395 F.3d at 1210. It is undisputed that the GAF scores Thebaud assigned to Gilabert indicated only moderate difficulty in functioning and were therefore inconsistent with the severe limitations that Thebaud outlined in his RFC assessment. Furthermore, two non-examining consultants found Gilabert to have only mild to moderate psychiatric symptoms. Finally, Thebaud took Gilabert off all of her medications except Trazadone in March 2004 when she reported that she was pregnant, providing further evidence that her condition was not as severe as Thebaud's RFC suggested.

Accordingly, the decision of the district court is AFFIRMED.

1. Prior to her onset date, Gilabert had been diagnosed with recurrent and moderate depression, panic disorder, and anxiety. Her treating doctor, however, noted that she was well enough to travel and work in 2002 and 2003.

2. Seroquel is an anti-psychotic medication used to treat bipolar disorder.

3. An RFC assessment helps determine "that which an individual is still able to do despite the limitations caused by his or her impairments. 20 C.F.R. § 404.1545(a)." Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004).

4. The parties consented to a trial before a magistrate judge.

1. Klawinski's application was heard before an administrative law judge and denied. The Appeals Council denied Klawinski's request for review; thus, the administrative law judge's decision became the final decision of the Commissioner.

Read more at https://www.amazon.com/author/cgachall.blogspot.com