United States District Court, D. Montana, Missoula Division
L. CHRISTENSEN, UNITED STATES DISTRICT CHIEF JUDGE.
States Magistrate Judge Jeremiah C. Lynch entered his
Findings and Recommendations on February 17, 2017,
recommending that the Commissioner's decision be
affirmed. Plaintiff Patricia O'Neil
("O'Neil") timely filed objections and is
therefore entitled to de novo review of the specified
findings and recommendations to which she objects. 28 U.S.C.
§ 636(b)(1). The portions of the findings and
recommendations not specifically objected to will be reviewed
for clear error. McDonnell Douglas Corp. v. Commodore
Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Clear error exists if the Court is left with a "definite
and firm conviction that a mistake has been committed."
United States v. Syrax, 235 F.3d 422, 427 (9th Cir.
2000). Because the parties are familiar with the facts of
this case they will only be included here as necessary to
explain the Court's order.
brings this action challenging the decision of the
Commissioner of Social Security denying her application for
disability insurance benefits. O'Neil's claim stems
from her allegations of disability beginning in August 2005
including chemical sensitivity, asthma, allergies and chronic
fatigue. After an administrative hearing, an administrative
law judge ("ALJ") found that O'Neil was not
disabled within the meaning of the Act. Judge Lynch
recommends that the Commissioner's decision be affirmed.
first objects to Judge Lynch's findings, arguing that he
misapplied her treating physicians' opinions that were
also improperly discounted by the ALJ. For support,
O'Neil relies on Garrison v. Colvin, 759 F.3d
995, 1013 (9th Cir. 2014). In Garrison, the Ninth
Circuit found that an ALJ errs when he does not set forth
specific, legitimate reasons for crediting one medical
opinion over another, assigns it little weight without
explanation, or does nothing more than ignores it without
explanation. Id. at 1012-1013. This is the same
argument O'Neil presented to Judge Lynch. After reviewing
the medical records and opinions from Dr. White and Dr.
Kurtz, and giving those physicians' opinions more weight
as treating physicians than a reviewing physician, this Court
finds that Judge Lynch did not err in determining that their
opinions were insufficient to establish that O'Neil was
disabled and entitled to disability benefits. Judge Lynch
offered specific, clear, and convincing reasons for
discrediting the opinions of Dr. White and Dr. Kurtz. Judge
Lynch referenced a specific physical examination by Dr. White
where she found that O'Neil showed a normal physical
examination (Doc. 35 at 8), and noted that Dr. Kurtz only
examined O'Neil a single time (Doc. 35 at 9-10). Thus,
this Court agrees that the ALJ appropriately diminished the
weight given to these physicians' opinions on
O'Neil's disability based on their treatment notes
and minimal examinations of O'Neil during the relevant
also objects to Judge Lynch's finding that the ALJ
permissibly rejected her testimony. If the ALJ finds that a
claimant has shown objective medical evidence of impairment
reasonably expected to produce the symptoms alleged and there
is no evidence of malingering, the ALJ can only reject the
claimant's testimony regarding severity of symptoms by
offering specific, clear and convincing reasons for doing so.
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007). "An ALJ may consider a range of factors in
assessing credibility, including (1) ordinary techniques of
credibility evaluation, such as the claimant's reputation
for lying, prior inconsistent statements concerning the
symptoms, and other testimony by the claimant that appears
less than candid; (2) unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of
treatment; and (3) the claimant's daily activities."
Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir.
2014) (citations and quotations omitted). The ALJ properly
compared O'Neil's testimony to her physical
examinations and found that the medical records did not
corroborate her testimony. Further, O'Neil explained that
she grocery shopped about once a week, visited her aunt once
a month, visited Glacier National Park every few months, and
cleaned her house, which the ALJ appropriately determined
were activities inconsistent with debilitating fatigue. Thus,
Judge Lynch accurately found that the ALJ provided clear and
convincing reasons for concluding that O'Neil's
testimony was only partially believable.
O'Neil objects to Judge Lynch's finding that the
witness testimony and statements were properly given little
weight by the ALJ. O'Neil contends that the ALJ
"cherry-picked" certain findings that conflicted
with the record in its entirety and further failed to give
credence to the testimony of the lay witnesses (Doc. 36 at
4.) Again, this argument was raised before Judge Lynch.
Moreover, this Court finds that the ALJ properly considered
the statements of both of O'Neil's aunts, but that
those statements were outweighed by the medical evidence
which showed O'Neil was not disabled within the meaning
of the Act.
being no clear error in Judge Lynch's remaining Findings
and Recommendations, IT IS ORDERED that Judge Lynch's
Findings and Recommendation (Doc. 35) are ADOPTED ...