United States District Court, D. Montana, Butte Division
Morris United States District Court Judge.
Therese McCurdy filed a Complaint requesting a review of the
Social Security Administration's decision to deny her
disability benefits on May 2, 2017. (Doc. 1.) McCurdy filed a
Motion for Summary Judgment on September 7, 2017. (Doc. 9.)
Judge Lynch entered Findings and Recommendations in this
matter on March 8, 2018. (Doc. 16.) Judge Lynch recommended
that the Court affirm the Commissioner's decision to deny
disability benefits. Id. at 19.
Court's review of the Commissioner's decision is
limited. The Court may set aside the Commissioner's
decision only when the substantial evidence does not support
the decision or the Commissioner based the decision on legal
error. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1
(9th Cir. 2005).
party makes no objections, the Court need not review de
novo the proposed Findings and Recommendations.
Thomas v. Arn, 474 U.S. 140, 149-52 (1986). This
Court will review Judge Lynch's Findings and
Recommendations, however, for clear error. McDonnell
Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981).
alleges disability due to depression, anxiety, and low
energy. (Doc. 16 at 1.) Judge Lynch determined that to
establish a disability, a claimant must prove the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected
to last for a continuous period of not less than 12
months.” Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). The
Commissioner follows a five-step sequential evaluation
process to determine whether the claimant has proven the
disability. 20 C.F.R. § 404.1520. The Administrative Law
Judge (“ALJ”) found McCurdy not disabled at step
five because other jobs existed in the national economy that
McCurdy could perform. McCurdy raises four issues on appeal.
argues that the ALJ erred by discounting the opinion of her
treating physician Dr. Dennis Salisbury, and improperly
crediting the opinions of treating physician Dr. John Rogers,
psychological expert Dr. Michael Enright, and state agency
mental consultant Dr. Marsha McFarland. (Doc. 16 at 6.) Judge
Lynch determined that when conflicting medical opinions exist
in the record, the ALJ must be charged with
“determining credibility and resolving the
conflict.” Chaudhry v. Astrue, 688 F.3d 661,
671 (9th Cir. 2012). Judge Lynch correctly determined that
the ALJ provided sufficiently specific and legitimate
reasons, supported by substantial evidence, for having
rejected Dr. Salisbury's opinions in favor of those
provided by Dr. Rogers, Dr. Enright, and Dr. McFarland. (Doc.
16 at 12.) The ALJ properly examined Dr. Salisbury's
opinions versus the medical records and found that the
opinions were not supported by, or consistent, with Dr.
Salisbury's notes and observations.
Other Medical Sources
next contends that the ALJ erred by not giving more weight to
the opinion of her mental health counselor Jeffrey Watson.
Id. at 12. Judge Lynch determined that Watson does
not qualify as an acceptable medical source under 20 C.F.R.
§ 404.1413. Id. Information from sources such
as Watson may provide insight into the severity of a
claimant's impairments. Id. The ALJ can reject
these sources, however, and need not cite the specific and
legitimate reasons for doing so. Molina v. Astrue,
674 F.3d 1104, 1111-12 (9th Cir. 2012). Judge Lynch correctly
determined that the ALJ gave Watson's opinion little
weight as it was not supported by the record as a whole.
(Doc. 16 at 13.)
Subjective Symptom Testimony
argues that the ALJ did not provide sufficiently clear and
convincing reasons for discounting her subjective symptom
testimony. Judge Lynch determined that the ALJ must follow a
two-step process when evaluating a claimant's subjective
symptom testimony. Lingenfelter v. Astrue, 504 F.3d
1028, 1035-36 (9th Cir. 2007). Step one requires the ALJ to
determine “whether the claimant has presented objective
medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms
alleged.” Id. If the claimant meets this
initial burden, step two allows the ALJ to discredit the
claimant's subjective symptom testimony about the
severity of his or her symptoms “only by offering
specific, clear and convincing reasons for doing so.”
found that McCurdy met her initial burden of producing
evidence that she has medically determinable impairments
which could reasonably be expected to cause her alleged
symptoms. The ALJ then found that McCurdy's subjective
allegations did not align with the medical and other evidence
in the record. Judge Lynch correctly determined that
sufficient clear and convincing reasons existed for
discounting McCurdy's subjective symptom testimony as
McCurdy's treatment records showed fairly infrequent and
routine doctor visits, with her anxiety and depression
largely under control. (Doc. 16 at 17.)
further contends that ALJ failed to provide germane reasons
for discounting third-party statements provided by her
husband and former supervisor. Judge Lynch determined that an
ALJ must consider lay witness testimony concerning a
claimant's ability to work. Stout v. Comm'r, Soc.
Sec. Adm., 454 F.3d 1050, 1053 (9th Cir. 2006). If the
ALJ provides clear and convincing reasons for rejecting the
claimant's own subjective complaints, however, and the
lay witness testimony remains similar to the claimant's
complaints, then the reasons for discounting the
claimant's testimony are also germane to the lay witness.