Rollins v. Massanari

• Decision Date: 12 February 2001
• Docket Number: DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,No. 99-55977,99-55977
• Citation: 261 F.3d 853
• Parties: (9th Cir. 2001) KATHRYN C. ROLLINS,, v. LARRY G. MASSANARI, <A HREF="#fr1-*" name="fn1-*">* ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 853

261 F.3d 853 (9th Cir. 2001)

KATHRYN C. ROLLINS, PLAINTIFF-APPELLANT, v. LARRY G. MASSANARI,^* ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT-APPELLEE.

No. 99-55977

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted February 12, 2001^**

Filed August 17, 2001

[Copyrighted Material Omitted] Counsel Bertram L. Potter, Pasadena, California, for the plaintiff-appellant.

Peter O. Okin, Assistant Regional Counsel, Social Security Administration, San Francisco, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California Elgin Edwards, Magistrate Judge, Presiding. D.C. No. CV 98-06873 EE

Before: Warren J. Ferguson, A. Wallace Tashima, and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Tashima; Dissent by Judge Ferguson

Kathryn C. Rollins appeals from the district court's grant of summary judgment in favor of the Commissioner of the Social Security Administration, affirming the Commissioner's denial of Rollins' application for disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. We have jurisdiction under 28 U.S.C. §§ 1291, and we affirm.

I. BACKGROUND

Rollins was injured in a car accident in August 1992. Since then, she has experienced pain in her muscles and joints, primarily in her neck and shoulders, but also in her legs, hips, arms, and wrists. She also testified that she suffers from fatigue and stress or depression, mainly from dealing with her pain.

In 1994, a rheumatologist, Dr. Carol Young, diagnosed Rollins as suffering from fibromyalgia, a syndrome that has been widely recognized in the medical community for only about 10 years. As the Seventh Circuit has explained,

[fibromyalgia's] cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and"the only symptom that discriminates between it and other diseases of a rheumatic character" multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.

Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). When examined, Rollins was found to have all 18 possible tender spots.

Rollins' application for disability benefits was denied after a hearing before an administrative law judge (ALJ). The Appeals Council of the Social Security Administration Office of Hearings and Appeals subsequently denied review, making the ALJ's decision the final decision of the Commissioner. 20 C.F.R. §§ 404.981. Rollins then sought judicial review in federal district court and consented to have her case heard by a magistrate judge. The parties filed cross motions for summary judgment, and the court ruled in favor of the Commissioner. This timely appeal followed.

II. STANDARD OF REVIEW

We review de novo the district court's order upholding the Commissioner's denial of benefits. Harman v. Apfel 211 F.3d 1172, 1174 (9th Cir. 2000). We must affirm the decision of the Commissioner if it was supported by substantial evidence in the record and applied the correct legal standards. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). Substantial evidence must be more than a scintilla, but it need not amount to a preponderance. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999).

III. DISCUSSION

A. Dr. Young's Reports

Rollins argues that the ALJ erred by rejecting various statements made by Rollins' treating physician, Dr. Young. The ALJ may not reject the opinion of a treating physician, even if it is contradicted by the opinions of other doctors, without providing "specific and legitimate reasons" supported by substantial evidence in the record. Reddick , 157 F.3d at 725.

The ALJ provided adequate reasons for not fully crediting Dr. Young's statements. For example, he noted that on October 4, 1994, Dr. Young claimed that Rollins was disabled, despite the facts that (1) Dr. Young also claimed that Rollins had improved since her original examination on July 25, 1994, and (2) Dr. Young's findings at the July 25 examination indicated that Rollins was not disabled.

These reasons are supported by substantial evidence. On July 25, Dr. Young described Rollins as a "[w]ell developed, well nourished middle aged female in no acute distress" and prescribed a conservative course of treatment, including a recommendation to "avoid strenuous activities." These are not the sort of description and recommendations one would expect to accompany a finding that Rollins was totally disabled under the Act.

In addition, the ALJ noted that some of Dr. Young's recommendations were so extreme as to be implausible and were not supported by any findings made by any doctor, including Dr. Young. In particular, Dr. Young claimed that Rollins' condition prevented her from engaging in any bending, stooping, crouching, crawling, kneeling, climbing, and balancing, and also indicated that Rollins should never be exposed to any smoke, fumes, dust, temperature extremes, humidity, vibrations, or noise, among other things. There is no indication in the record what the basis for these restrictions might be, and Rollins herself has never claimed to have any problems with many of the conditions and activities that Dr. Young instructed her to avoid. Moreover, the restrictions appear to be inconsistent with the level of activity that Rollins engaged in by maintaining a household and raising two young children, with no significant assistance from her ex husband.

In sum, the ALJ provided adequate reasons, under the appropriate legal standard, for finding that Dr. Young's opinion was not controlling.

B. Rollins' Testimony

Rollins argues that the ALJ improperly assessed the credibility of her testimony regarding the severity of her pain and the degree to which it incapacitates her.

"[O]nce a claimant produces objective medical evidence of an underlying impairment, an [ALJ] may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). If the ALJ finds the claimant's pain testimony not to be credible, the ALJ "must specifically make findings that support this conclusion," and the findings "must be sufficiently specific to allow a reviewing court to conclude the [ALJ] rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit [the ] claimant's testimony." Id. at 345 (internal quotation marks omitted). If there is no affirmative evidence that the claimant is malingering, the ALJ must provide clear and convincing reasons for rejecting the claimant's testimony regarding the severity of symptoms. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).

Assuming, without deciding, that fibromyalgia does constitute a qualifying "severe impairment" under the Act, we nonetheless conclude that the ALJ stated sufficient specific reasons for not fully crediting Rollins' pain testimony. For example, the ALJ noted that when Rollins was discharged from the Behavioral Medicine Center of Loma Linda University Medical Center after treatment for addiction to painkillers, the doctors discharging her said that she had"no restrictions on activity" and gave her a Global Assessment of Function level of 70, "indicating only mild symptoms and generally quite adequate function." While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects. 20 C.F.R. §§ 404.1529(c)(2). The ALJ also pointed out ways in which Rollins' claim to have totally disabling pain was undermined by her own testimony about her daily activities, such as attending to the needs of her two young children, cooking, housekeeping, laundry, shopping, attending therapy and various other meetings every week, and so forth. For example, in her daily activities questionnaire, Rollins stated that she attended to "all of [her] children's needs; meals, bathing, emotional, discipline, etc." because her husband worked six days a week, usually from early in the morning until 10 p.m. In the same questionnaire, she also stated that she left the house "daily" to go to places such as her son's school, taekwondo lessons and soccer games, doctor's appointments, and the grocery store.

It is true that Rollins' testimony was somewhat equivocal about how regularly she was able to keep up with all of these activities, and the ALJ's interpretation of her testimony may not be the only reasonable one. But it is still a reasonable interpretation and is supported by substantial evidence; thus, it is not our role to second-guess it. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989).

Consequently, we reject Rollins' argument that the ALJ improperly discounted her testimony. The ALJ gave clear and convincing reasons for discounting portions of Rollins' excess pain testimony, and those reasons were supported by substantial evidence.

C. The Vocational Expert

Rollins argues that the ALJ erred in framing his hypothetical questions for the vocational expert, because the questions did not include all of the limitations caused by her pain. The omitted limitations, however, were only those that the ALJ found did not exist. Because the ALJ included all of the limitations that he found to exist, and because his findings were supported by substantial evidence, the ALJ did not err in omitting the other limitations that Rollins had claimed, but had failed to prove.

D. Bias

Rollins argues that the ALJ...