Posts Tagged With: United States Court of Appeals for the Ninth Circuit

An Exception To Treating Physician Rule. We Ignore Your Treating MD’s Opinion If Our Non-treating MD’s Opinion Is Consistent With Other Evidence.


COULETTE OSMORE v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration

No. 11-35212.

United States Court of Appeals, Ninth Circuit.

Filed March 20, 2012.

Before: PAEZ and FERNANDEZ, Circuit Judges, and GWIN, District Judge.***



Coulette Osmore appeals the district court’s judgment reversing the Commissioner’s final decision that Osmore was not disabled within the meaning of Title XVI of the Social Security Act, 42 U.S.C. §1383c(a)(3), and remanding the matter for further administrative proceedings. With her appeal, Osmore seeks an order that, on remand, the Adminstrative Law Judge (ALJ) must complete an entirely new evaluation of Osmore’s Supplemental Security Income and Disability Insurance Benefits applications. We affirm.


Evaluation of the Medical Evidence
The Commissioner says that, on remand, he will both consider the effects of Osmore’s mental impairments and allow Osmore to argue that medication side effects limit her residual functional capacity. Accordingly, Osmore’s claim that the ALJ improperly disregarded evidence of Osmore’s depression and medication side effects is moot (“An appeal is moot if there exists no `present controversy as to which effect relief can be granted.'”  On remand, the ALJ must consider Osmore’s mental impairments and medication side effects.
The ALJ did not err by failing to discuss specifically Osmore’s MRI and CT scan results. “[I]n interpreting the evidence and developing the record, the ALJ does not need to discuss every piece of evidence.“Here, Osmore’s MRI results were consistent with her CT scan results. Both revealed that Osmore has the severe impairment spondylolisthesis. The ALJ properly considered Osmore’s medical records—including records that evaluated her MRI and CT scan—in evaluating Osmore’s impairments.
The ALJ provided specific and legitimate reasons for rejecting Dr. Tim Truschel’s (a treating physician) opinion: other treating and non-treating physicians’ opinions, along with Osmore’s treatment records, contradicted Dr. Truschel’s opinion. A non-examining physician’s opinion may constitute substantial evidence to disregard the opinion of an examining physician if it is consistent with other independent evidence in the record and the ALJ does not rely on the non-examining physician’s report alone
The ALJ did not err in evaluating the medical records from Osmore’s twelve other physicians. The ALJ noted Osmore’s history of back pain, cited several of Osmore’s physicians’ medical opinions and treatment records, and appropriately developed and considered the record. 
Evaluation of Other Evidence
The ALJ did not err in discrediting Osmore’s symptom testimony based on inconsistencies with 1) the objective medical evidence and 2) Osmore’s daily activities.  (Inconsistencies with clinical observations can “satisfy the requirement of a clear and convincing reason for discrediting a claimant’s testimony.”); (The ALJ may reject the claimant’s testimony when inconsistent with the claimant’s daily activities and contrary to the medical evidence.).
The ALJ did not err in failing to consider Osmore’s lay-witness evidence. In 2004, Osmore’s husband and sister prepared reports for Osmore’s prior Social Security benefits applications; the present application concerns disability beginning March 2005. Accordingly, these out-of-date lay-witness reports are not probative evidence of Osmore’s 2005 disability status.  (“[T]he evidence which the Secretary ignored was neither significant nor probative.”). On remand, however, Osmore may seek leave to submit additional evidence from lay witnesses.
Other Claims of Error
The district court explained that because “the ALJ erred in evaluating the medical evidence in the record concerning [Osmore’s] mental impairments and limitations,” the ALJ also erred “in assessing [Osmore’s] residual functional capacity.” In its judgment reversing and remanding, the district court ordered the ALJ to make a new determination of Osmore’s residual functional capacity and of Osmore’s ability to perform past relevant and current work. Accordingly, Osmore’s remaining allegations of error—regarding the ALJ’s determination of Osmore’s residual functional capacity and ability to perform past relevant and current work—are also moot. See W. Coast Seafood, 643 F.3d at 704.
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Social Security Judges Will Not Grant Benefits to Former Drug Users, No Matter What Treating Physician Rule Says.





KRISTINA R. BLACK  v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration.


No. 11-35379.


United States Court of Appeals, Ninth Circuit.


  Filed March 19, 2012.

Before: PAEZ and MURGUIA, Circuit Judges, and TUCKER, District Judge.



Plaintiff-Appellant Kristina Black appeals the district court’s judgment affirming the Commissioner of Social Security‘s denial of her applications for Child’s Insurance Benefits and Supplemental Security Income benefits under the Social Security Act. Black alleged disability due to depressive disorder severe with psychotic features, polysubstance abuse, obesity, chronic back pain, and anxiety disorder.

We review de novo the district court’s order affirming the Commissioner’s denial of benefits to ensure that the Commissioner’s decision was supported by substantial evidence and a correct application of the law.


The Administrative Law Judge (“ALJ”) applied the five-step sequential evaluation process to determine if Black is disabled. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920.

At STEP ONE, the ALJ determined that Black had not been engaged in substantial gainful activity (SGA) since September 1, 2006, the alleged disability onset date.

At STEP TWO, the ALJ found that Black had two severe impairments: (1) major depressive disorder, chronic, severe with psychotic features, and (2) polysubstance abuse.

At STEP THREE, the ALJ determined that Black did not have an impairment that meets the criteria of an impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ then found that Black had the residual functional capacity to perform a full range of work but with non-exertional limitations.

At STEP FOUR, the ALJ concluded that Black is capable of performing her past relevant work (PRW) as a dishwasher, and therefore is not disabled.

At STEP FIVE, alternatively, the ALJ concluded that Black is not disabled because there are other jobs that exist in significant numbers in the economy that she can perform, including work as a night cleaner.


The ALJ erred at STEP TWO by not considering whether Black’s anxiety disorder is a severe impairment. Treating physician Dr. Woyna diagnosed Black as suffering from anxiety disorders and Black alleged that she was disabled in part due to anxiety disorder.

By disregarding the anxiety disorder diagnosis, the ALJ failed to offer the “specific and legitimate reasons” required to reject a treating doctor’s conclusions. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Substantial evidence does not support the ALJ’s conclusion that the anxiety disorder is not a severe impairment in the absence of any mention of the disorder.

We cannot determine whether the error was harmless because the ALJ did not provide a statement of reasons for rejecting evidence relevant to Black’s residual functional capacity, and

THEREFORE we do not know whether the ALJ’s omission was “inconsequential to the ultimate nondisability determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).

We therefore reverse and remand to the district court with instructions to remand to the ALJ to consider all of the evidence. We do not reach Black’s other claims of error.


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