Connett v. Barnhart

• Decision Date: 20 August 2003
• Docket Number: No. 01-36102.,01-36102.
• Citation: 340 F.3d 871
• Parties: Jeanne CONNETT, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

340 F.3d 871

Jeanne CONNETT, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner, Commissioner of Social Security, Defendant-Appellee.

No. 01-36102.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2003 — Portland, Oregon.

Filed August 20, 2003.

Tim Wilborn, Portland, Oregon, for the plaintiff-appellant.

David J. Burdett and Kristin B. Johnson, Social Security Administration, Seattle, Washington, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Donald C. Ashmanskas, Magistrate Judge, Presiding. D.C. No. CV-00-01712-AS.

Before: Donald P. LAY,^* J. Clifford WALLACE, and Richard C. TALLMAN, Circuit Judges.

OPINION

WALLACE, Senior Circuit Judge.

Jeanne Connett appeals from the judgment of the district court affirming the Commissioner of the Social Security Administration's denial of benefits. We affirm in part, and reverse and remand in part.

Connett applied for Social Security benefits, including disability insurance benefits and supplemental security income benefits, in September of 1997. Her applications alleged that she became disabled in 1994 as the result of a combination of impairments including back, shoulder and neck pain, migraine headaches, colitis, and a somatoform disorder. This appeal does not involve the last impairment. Her applications were denied initially and upon reconsideration, after which Connett requested a hearing before an administrative law judge (ALJ). After a hearing, the ALJ issued a decision concluding Connett was not disabled. The Appeals Council declined review, and the ALJ's decision became the final order of the Commissioner. Connett appealed to the district court. The district court affirmed the Commissioner's order denying benefits and dismissed the appeal.

We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We review de novo a district court's order upholding the Commissioner's denial of benefits. Moore v. Comm'r of the Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). We must affirm the district court if the Commissioner's decision is supported by substantial evidence, id.; that is, the evidence must be more than a mere scintilla but not necessarily a preponderance. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir.2001).

I.

Connett first argues that the ALJ improperly rejected most of her testimony regarding the severity of her back, neck and shoulder pain, migraines, and colitis. She asserts that the ALJ failed to set forth specific reasons for disbelieving her testimony with regard to the back, neck and shoulder pain. When reviewing the decision, we bear in mind that the ALJ, who holds a hearing in the Commissioner's stead, is responsible for determining credibility and resolving conflicts in medical testimony. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.2001). However, when rejecting a claimant's testimony, we have imposed on the ALJ our requirements of specificity. Dodrill v. Shalala, 12 F.3d 915, 917 (9th Cir.1993) (observing that an ALJ may reject pain testimony, but "he must justify his decision with specific findings").

A.

The ALJ observed that Connett's sworn testimony at the hearing regarding the degree and nature of her neck, shoulder and back pain was often contradicted by her past actions and other record evidence. For example, although Connett asserted she spent 75 percent of her day lying down due to severe pain, the ALJ's decision rejected her testimony in part because she never reported this restriction to a physician. Likewise, Connett testified her neck pain was so severe that she had to cut her long hair for relief; but at the hearing, her hair reached well below her shoulders. The ALJ also relied on the fact that Connett repeatedly reported back and neck pain to her treating and examining physicians, yet all x-rays, CT scans, and myelograms were normal.

The ALJ also observed that in 1996, when one doctor discontinued treatment for her alleged neck and back pain because there was nothing else he could do for her, she began a pattern of seeking treatment at emergency rooms. She testified she had never undergone physical therapy or been in a back strengthening program, but the ALJ's review of the medical records demonstrated she had attempted such treatments. The ALJ also relied on the fact that although Connett reported that various doctors imposed functional restrictions, the medical records disclosed that these restrictions were self-imposed and not based on the independent assessment of any physician.

With respect to this testimony, the ALJ's rejection of Connett's claims regarding her limitations is based on clear and convincing reasons supported by specific facts in the record that demonstrate an objective basis for his finding. Dodrill, 12 F.3d at 917. With regard to each of Connett's claims, the ALJ stated which testimony he found not credible and what evidence suggested that the particular testimony was not credible. The ALJ's decision to deny Connett's claim with respect to her back, shoulder, and neck pain, therefore, was supported by substantial evidence.

B.

Connett also argues that the ALJ improperly rejected her testimony that she suffers from severe colitis and migraine headaches, both of which she says debilitate her for days at a time. With respect to both, the ALJ stated only that they were not severe impairments because Connett controlled both conditions with medication. At the hearing, Connett testified that "Imitrex can make [a migraine] gone within 24 hours," but that "[if] I get one of these headaches, I'm done. I might as well ... call it a day." In the month prior to the hearing, she reported having only one migraine, but alleged that she usually had "three to four" per month. When asked about colitis, Connett stated that it affects her "twice" a month, and takes a "week and a half" to clear up. She also testified that she uses Tagamet to combat any nausea that accompanies the symptoms, and that "most times," the diarrhea "is pretty well controlled with diet."

As with her testimony regarding her back, shoulder, and neck pain, Connett's testimony regarding her migraines and colitis was conflicting. The district court pointed to many discrepancies between the record and Connett's account of these conditions at the hearing. For example, Connett reported a weight fluctuation of nearly forty-five pounds due to colitis; yet medical records indicate only a sixteen pound fluctuation. With respect to Connett's migraines, the district court pointed out that Connett testified at the hearing that without her medication the migraine headaches would require a visit to the emergency room, yet the record reflects that Connett had never gone to the emergency room for treatment of her migraines, even before she received a prescription for her medication. Furthermore, while she often reported to doctors that she had a history of migraines, Connett never reported an actual migraine episode.

These specific findings might be adequate under Dodrill. But the problem is that we cannot rely on independent findings of the district court. We are constrained to review the reasons the ALJ asserts. SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir.2001). It was error for the district court to affirm the ALJ's credibility decision based on evidence that the ALJ did not discuss. Because the ALJ did not assert specific facts or reasons to reject Connett's testimony and to find that her migraines and colitis were controlled by medication, we must reverse the district court on this issue. Dodrill, 12 F.3d at 917.

II.

Connett also argues that the ALJ improperly discounted the opinion of her treating physician, Dr. Magsarili. Where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir.2002). However, the ALJ can reject the opinion of a treating physician in favor of the conflicting opinion of another examining physician "if the ALJ makes `findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.'" Id. at 957 (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989)).

The ALJ rejected Dr. Magsarili's certification of Connett as disabled, primarily because Dr. Magsarili's residual function capacity questionnaire "is not supported... by[] his own notes. His conclusions also had multiple inconsistencies with all other evaluations." Dr. Magsarili stated that Connett's medical problems limited her workday in that she could sit continuously for only twenty minutes, she could stand continuously for only ten minutes, and she could walk only two or three blocks without risk of severe pain. He wrote that Connett could sit/stand/walk for a total maximum of two hours in an eight-hour work day, and she must shift positions and take ten-minute breaks every two hours. She could occasionally lift or carry objects up to ten pounds, but she could not engage in repetitive reaching, crouching or stooping. Finally, he wrote that she would be absent from work three times a month.

Dr. Magsarili's limitations are inconsistent with and more restrictive than those found by any other source. Dr. Berselli prepared a disability questionnaire based on information similar to that available to Dr. Magsarili, but he...