Britton v. Colvin

• Decision Date: 02 June 2015
• Docket Number: No. 13–35626.,13–35626.
• Citation: 787 F.3d 1011
• Parties: Gina L. BRITTON, Plaintiff–Appellant, v. Carolyn W. COLVIN, Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

787 F.3d 1011

Gina L. BRITTON, Plaintiff–Appellant

v.Carolyn W. COLVIN, Commissioner of Social Security, Defendant–Appellee.

No. 13–35626.

United States Court of Appeals, Ninth Circuit.

Submitted May 4, 2015.^*

Filed June 2, 2015.

Dana C. Madsen, Spokane, Washington, for Plaintiff–Appellant.

Catherine Escobar, Assistant Regional Counsel, Office of the General Counsel, Social Security Administration, for Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of Washington, Edward F. Shea, Senior District Judge, Presiding. D.C. No. 2:11–cv–00314–EFS.

Before: ANDREW J. KLEINFELD, RONALD M. GOULD, and MORGAN CHRISTEN, Circuit Judges.

OPINION

PER CURIAM:

In 2007, Gina Britton filed for Social Security Disability Insurance Benefits, citing an assortment of ailments: fibromyalgia

, migraines, generalized dystonia,¹ and others. Because of her impairments, Britton claimed she could not work, could only drive “very short distances,” experienced broken sleep, could only walk for five to fifteen minutes, could only stand for fifteen minutes, could only sit for a few minutes without adjusting her position, and could only lift five to ten pounds.

The administrative law judge found otherwise. He found that Britton could carry up to twenty pounds and could sit, stand, or walk for six hours in an eight-hour workday. Based on these findings, the administrative law judge determined that Britton could perform light work with significant limitations. Those limitations included one-day off per month for medical reasons, five percent of the work day spent off-task, no fast-paced settings, no exposure to moving machinery or heights, only superficial public contact, and only occasional interaction with coworkers and supervisors.

While the limitations excluded some of Britton's past jobs, a vocational expert testified that Britton was still capable of performing several jobs she had previously held: phlebotomist,² sales clerk, waitress, and sandwich maker.³ Based on the testimony of the vocational expert that Britton could perform the above jobs, the administrative law judge denied Britton's application for disability benefits. The Social Security Appeals Council denied review, and the district court affirmed on appeal.

On appeal to this court, Britton argues that the administrative law judge did not reasonably weigh the medical evidence because the medical expert, Dr. McBarron, testified that Britton met the listing for fibromyalgia

. However, an administrative law judge may disregard medical opinion that is brief, conclusory, and inadequately supported by clinical findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005).

Here, the administrative law judge could have reasonably accorded little weight to Dr. McBarron's opinion that Britton's condition equals the listing of fibromyalgia

. That is because Dr. McBarron's opinion could not possibly be right. An alleged case of fibromyalgia cannot meet the listing for fibromyalgia because fibromyalgia is not a listed disability. See Social Security Ruling 12–2p at *2. Dr. McBarron even acknowledged this later in his testimony.

What Dr. McBarron may have meant was that Britton's fibromyalgia

was severe enough to be equivalent to one of the listed disabilities. However, Dr. McBarron's testimony was that Britton could perform light work. The ability to perform light work is incompatible with a listed disability, for a listed disability conclusively establishes that a claimant cannot work and, hence, is eligible for disability benefits.See, e.g., 20 C.F.R. § 404.1520(a)(4)(iii). Dr. McBarron's testimony did not support a finding that Britton's fibromyalgia —something Dr. McBarron even expressed doubt about—rendered her unable to work.

It is true that Michael Keith, a nurse practitioner, opined that Britton could not work because of her fibromyalgia

. However, a nurse practitioner is not an acceptable medical source. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.2012). Rather, nurse practitioners are defined as “other sources,” the testimony of whom the administrative law judge may discount if he “gives reasons germane to each witness for doing so.” Id.

The administrative law judge discounted Keith's testimony for a good reason: namely, that Dr. McBarron had testified that Britton was capable of light work. In according little weight to Keith's testimony, the administrative law judge also pointed to Britton's daily activities, such as home schooling her children, which discredited Keith's opinion.

Britton asserts that Keith's testimony should be accorded deference as medical testimony because Keith worked closely under Drs. Wukelic and Wu. This court held in Gomez v. Chater that a nurse practitioner could be considered a medically acceptable source where he worked so closely under a physician that he was acting as the physician's agent. Gomez v. Chater, 74 F.3d 967, 971 (9th Cir.1996).⁴ However, nothing in the record indicates that Keith worked so closely under Drs. Wukelic or Wu as to be considered an agent of either. The record only shows that Keith, who worked at Northwest Medical Rehabilitation, received documents from...