Morgan v. Commissioner of Social Sec. Admin.

• Decision Date: 25 February 1999
• Docket Number: No. 97-36142,97-36142
• Citation: 169 F.3d 595
• Parties: , Unempl.Ins.Rep. (CCH) P 16155B, 1999 Daily Journal D.A.R. 1855 David MORGAN, Plaintiff-Appellant, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION; Kenneth S. Apfel, Commissioner, Social Security Administration, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 595

169 F.3d 595

60 Soc.Sec.Rep.Ser. 541, Unempl.Ins.Rep. (CCH) P 16155B,

1999 Daily Journal D.A.R. 1855

David MORGAN, Plaintiff-Appellant, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION; Kenneth S. Apfel, Commissioner, Social Security Administration, Defendant-Appellee.

No. 97-36142.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1998.

Decided Feb. 25, 1999.

Kathryn Tassinari, Eugene, Oregon, for the plaintiff-appellant.

John K. Webb, Assistant Regional Counsel, Social Security Administration, Seattle, Washington, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV-96-06310-CO.

Before: NOONAN, THOMPSON and TROTT, Circuit Judges.

Opinion by Judge DAVID R. THOMPSON; Dissent by Judge NOONAN.

DAVID R. THOMPSON, Circuit Judge:

Plaintiff-appellant David Morgan ("Morgan") appeals the district court's judgment affirming the Commissioner's denial of Disability Insurance Benefits ("DIB") under Title XVIII of the Social Security Act, 42 U.S.C. § 423 and Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq.

Morgan contends the Administrative Law Judge ("ALJ") erred in rejecting Morgan's testimony as to his mental condition, and in rejecting the opinions of his treating psychiatrist and examining psychologist in favor of the opinion of a nonexamining medical advisor.

We conclude that the ALJ gave clear and convincing reasons, supported by the record, for rejecting Morgan's testimony. We also conclude that the ALJ gave specific, legitimate reasons for rejecting the opinions of Morgan's treating psychiatrist and examining psychologist, and that those reasons are based on substantial evidence in the record. Accordingly, we affirm the denial of benefits.

BACKGROUND

Born in 1950, David Morgan is a high school graduate who also earned an Associate of Arts degree in math and history. Morgan worked for eleven years as a grocery store retail clerk until he was fired in 1988 because of a fight with a supervisor. He has not been employed since 1988. In February 1994, after threatening suicide, Morgan entered the Lane Psychiatric Hospital. During his hospitalization, Morgan reported a recent history of drinking two to three beers per day, and admitted to cannabis-marihuana use. Upon discharge, Morgan's medical examiners diagnosed him as suffering from a major depressive disorder, alcohol abuse, cannabis abuse, a history of amphetamine and opioid abuse, and a schizoid and/or dependent personality.

Between March 1994 and March 1995, Dr. Michael Reaves, M.D., evaluated Morgan's mental health at least six times. He observed Morgan to be "relatively articulate, intelligent [and] ... to have a rather quick wit about him." Dr. Reaves repeatedly diagnosed Morgan with recurrent major depression, alcohol abuse, cannabis abuse, and provisional schizoid personality disorder. Dr. Reaves rated Morgan's Global Assessment of Functioning (GAF) at 45/55. ¹ Dr. Reaves prescribed the continued use of antidepressive medication.

Between March 1994 and March 1995, Dr. Sally Grosscup, Ph.D., also performed a series of psychological evaluations of Morgan. Dr. Grosscup diagnosed Morgan with "Major Depressive Disorder, single episodes; severe, without psychotic features" and concluded that he had "a moderate to high suicide risk." In addition, she found repeatedly that Morgan suffered from alcohol dependence, cannabis abuse, amphetamine abuse, opioid abuse, nicotine dependence, inhalant abuse, and a probable borderline personality disorder. Dr. Grosscup assigned Morgan a GAF score of 49, with a high of 61 during the previous year. In one evaluation, Dr. Grosscup opined that "[Morgan]'s prognosis for change is extremely poor, given his probable character disorder. His condition has been long term and so far he only moderately responds to medication. He is probably functioning at the highest level of his current capacity."

Morgan applied for DIB and SSI on March 18, 1994, around the time Dr. Reaves and Dr. Grosscup began evaluating him. After his applications were denied initially and upon reconsideration, Morgan requested a disability hearing before an ALJ.

At the April 12, 1995 disability hearing, Dr. William McConochie, Ph.D., testified as a medical expert. Dr. McConochie stated that the medical evidence demonstrated a history of major depression "characterized by less than four years of the several symptoms listed, but including a sleep disturbance, difficulty concentrating, and thoughts of suicide." Dr. McConochie recognized that other medical examiners made a provisional diagnosis of personality disorder, but stated that he believed the medical evidence did not support this diagnosis. He stated that he agreed with the various professionals who considered Morgan an alcoholic, and that he considered Morgan's alcoholism and cannabis abuse the most important diagnoses. Dr. McConochie noted that, while Morgan's depression probably played a part in the primary diagnosis, it was more likely a side effect of the alcoholism and cannabis abuse. When asked about the "B" criteria of listing 12.00 of the Social Security Regulations, ² Dr. McConochie testified that Morgan did not meet the listings, having only slight difficulties in maintaining social functioning and never or seldom having deficiencies of concentration, persistence, or pace. Dr. McConochie also testified that Morgan had no significant limitations on a Mental Residual Functional Capacity assessment, contrary to the opinions of Dr. Reaves and Dr. Grosscup.

The ALJ issued a decision on August 24, 1995, denying Morgan's claim. In reaching his decision, the ALJ concluded that Morgan's allegations, both in his testimony and in his statements to the medical examiners, were not highly credible. The ALJ determined that clear conflict existed between Morgan's statements regarding the severity of his depression as he represented those symptoms and Morgan's behavior as observed under objective testing. This conflict between subjective testimony and objective medical evidence led the ALJ to conclude that Morgan's subjective complaints reflected a lack of credibility and a degree of exaggeration. The ALJ discounted, therefore, any medical findings based on Morgan's subjective complaints, including the medical examiners' opinions regarding his ability to work.

Based on these determinations and other evidence in the record, the ALJ concluded that Morgan had severe impairments, but that the impairments did not meet or equal the requirements for disability, either individually or in combination. The ALJ concluded that Morgan retained the residual functional capacity to perform his past relevant work as a retail clerk, and therefore was not disabled within the meaning of the Social Security Act.

After the Appeals Council denied review of Morgan's claim, thereby making the ALJ's determination a final decision of the Commissioner, Morgan filed a complaint asking the United States District Court for the District of Oregon to review and set aside the Commissioner's decision. On November 7, 1997, United States District Judge Michael R. Hogan adopted the findings and recommendation of Magistrate Judge John P. Cooney, affirming the Commissioner's denial of Morgan's applications for benefits.

Morgan timely appeals the district court's decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

STANDARD OF REVIEW

We review de novo the district court's order affirming the Commissioner's denial of benefits. See Travers v. Shalala, 20 F.3d 993, 995-96 (9th Cir.1994). The Commissioner's decision to deny benefits will be overturned "only if it is not supported by substantial evidence or is based on legal error." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989) (quoting Green v. Heckler, 803 F.2d 528 (9th Cir.1986)). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995).

DISCUSSION

Morgan contends the ALJ failed to provide clear and convincing reasons for rejecting Morgan's testimony of subjective symptoms. Morgan also argues the ALJ rejected the opinions of his examining psychologist and treating psychiatrist without providing specific and legitimate reasons. We disagree.

For the ALJ to reject Morgan's subjective complaints, he must provide "specific, cogent reasons for the disbelief." Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1995) (quoting Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir.1990)). Without affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing. See Lester, 81 F.3d at 834; Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989). If an ALJ finds that a claimant's testimony relating to the intensity of his pain and other limitations is unreliable, the ALJ must make a credibility determination citing the reasons why the testimony is unpersuasive. See Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.1991). The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints. See Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993); Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir.1988). In this regard, questions of credibility and resolutions of conflicts in the testimony are functions solely of the Secretary. See Yuckert v. Bowen, 841 F.2d 303, 307 (9th Cir.1988); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982).

The ALJ provided clear and convincing reasons for rejecting Morgan's testimony. The ALJ pointed to specific evidence in the...