Caseflicks

Court of Appeals for the Ninth Circuit • 1995

Raymond E. ANDREWS, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee

53 F.3d 1035 | 95 Daily Journal DAR 5564 | 95 Cal. Daily Op. Serv. 3232 | 1995 U.S. App. LEXIS 9802

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Takeaway

In short, this case confirms that an ALJ may favor a supported nonexamining expert over an examining psychologist, but vocational testimony can prove available work only when the hypothetical includes every limitation the ALJ accepts.

Background

Raymond Andrews sought Supplemental Security Income benefits, claiming that psoriasis and psychological conditions—including substance abuse, depression, paranoia, and a schizotypal personality disorder—prevented him from working. Although his psoriasis limited exposure to caustic substances and detergents, the disputed question was whether his mental impairments left him unable to function in a work setting.

An examining psychologist, Dr. McConochie, evaluated Andrews several times in connection with his public-assistance application and ultimately rated him "Poor/None" in 12 of 15 work-related mental categories. McConochie considered Andrews severely impaired by chronic drug abuse, depression, and paranoid ideation. Andrews also reported anxiety in work settings and a history of alcohol and marijuana use.

At the disability hearing, Dr. Green, a nonexamining psychologist with expertise in substance abuse, reviewed the records, heard Andrews testify, and concluded that he was no more than moderately limited in any mental residual-functional-capacity category. Her view was consistent with four other record reviewers. The ALJ discounted McConochie’s opinion, finding that Andrews’s substance abuse and unreliable self-reporting weakened the diagnosis, and that Andrews could control his substance use. The ALJ then found Andrews unable to return to his past work because of psoriasis but not disabled because jobs existed that he could perform.

The ALJ relied on vocational-expert testimony responding to a hypothetical that included Andrews’s physical restrictions and a need for minimal interaction with others. The Appeals Council denied review, making the ALJ’s decision final. A magistrate judge, acting with the parties’ consent, granted summary judgment for the Secretary. Andrews appealed.

Issues

Issue #1

Whether the ALJ permissibly rejected the examining psychologist’s assessment of severe mental work limitations in favor of the testimony of a nonexamining medical advisor.

Holding

Yes. The ALJ gave specific and legitimate reasons, supported by substantial evidence, for discounting Dr. McConochie’s opinion and crediting Dr. Green’s contrary assessment.

Reasoning

An examining physician’s opinion generally receives more weight than a nonexamining physician’s opinion, even when the examiner is not a treating source. The district court therefore erred to the extent it suggested that McConochie’s examining opinion was entitled to no particular deference. But the examining-source preference does not make a nonexamining expert’s opinion worthless; a nonexamining advisor’s opinion may constitute substantial evidence when it is supported by and consistent with other evidence in the record.

Because Green’s testimony legitimately conflicted with McConochie’s conclusions, Andrews was not entitled to the heightened clear-and-convincing standard that applies when an examining or treating opinion is uncontradicted. The applicable question was instead whether the ALJ supplied specific and legitimate reasons, grounded in substantial evidence, for resolving the medical conflict against McConochie.

The ALJ had sound reasons to question McConochie’s conclusions. Andrews saw McConochie to obtain benefits rather than for ongoing treatment, and McConochie’s diagnoses substantially depended on Andrews’s self-reports. The ALJ permissibly found Andrews less than fully credible based on his admissions that he manipulated people and institutions to his advantage and acted incompetent in court to obtain leniency. Once the ALJ properly discounted Andrews’s symptom reports, he could give less weight to an opinion that rested heavily on those reports.

Green’s opinion provided substantial supporting evidence. She testified at the hearing and was available for cross-examination; she had specialized expertise in substance abuse; and she explained that Andrews’s active substance abuse and inconsistent reporting made psychiatric diagnoses based on self-report less reliable. Her assessment that Andrews had, at most, moderate limitations was consistent with Andrews’s testimony and with the written conclusions of four other medical reviewers.

The ALJ also reasonably found that Andrews’s drug and alcohol use was controllable rather than disabling. Andrews described periods of sobriety, Green concluded that he retained control over his use, and other medical records likewise indicated that he could stop using substances for extended periods. Taken together, this evidence supported the ALJ’s decision to reject McConochie’s severe functional assessment.

Issue #2

Whether the vocational-expert hypothetical adequately reflected the mental limitations that the ALJ accepted from Dr. Green’s residual-functional-capacity assessment.

Holding

No. The hypothetical omitted accepted moderate limitations in concentration, persistence, adaptation, and related functions, so it could not establish that Andrews could perform other work in the national economy.

Reasoning

After Andrews showed that he could not perform his past relevant work, the burden shifted to the Secretary to show that he could perform other substantial gainful work available in the national economy. The Secretary could meet that burden through vocational-expert testimony only if the hypothetical presented to the expert included all of the claimant’s limitations supported by the record.

Green adopted an assessment finding moderate limitations not only in interaction with the public and coworkers, but also in understanding and carrying out detailed instructions, working near others without distraction, responding appropriately to workplace changes, and setting realistic goals or making independent plans. Although no limitation was marked as severe, these moderate restrictions remained part of the mental residual functional capacity the ALJ accepted.

The ALJ’s hypothetical referred only to minimal interaction with people and did not include Andrews’s moderate concentration, persistence, or adaptation limits. The vocational expert’s remarks about receiving supervisory instructions did not show that the expert had considered all of those omitted limitations, especially the adaptation restrictions. The court would not assume that an expert who attended the hearing independently incorporated restrictions that the ALJ did not include in the question.

Because the vocational testimony rested on an incomplete hypothetical, it did not carry the Secretary’s step-five burden. The court therefore reversed the judgment and remanded for further proceedings, requiring a vocational assessment based on a hypothetical that accurately states Andrews’s mental residual functional capacity.