                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 17 2010

                      UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                         U.S . CO U RT OF AP PE A LS


                             FOR THE NINTH CIRCUIT

 MANDI CALKINS,
                                                  No. 08-35927
                  Plaintiff-Appellant,
                                                  D. C. No. CV-07-6146-BR
             v.
                                                  MEMORANDUM *
 MICHAEL J. ASTRUE,
 Commissioner of Social Security,

                  Defendant-Appellee.




                     Appeal from the United States District Court
                              for the District of Oregon
                      Anna J. Brown, District Judge, Presiding

                            Submitted November 6, 2009**
                                 Portland, Oregon

Before: FISHER and PAEZ, Circuit Judges, and FOGEL, District Judge***

      Mandi Calµins ('Calµins') appeals from the district court's judgment

affirming the final decision of the Commissioner of Social Security denying


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
       This panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
Calµins's application for disability insurance benefits under Title II of the Social

Security Act. Calµins contends that the Administrative Law Judge ('ALJ') erred

in discounting her subjective complaints and in evaluating the medical evidence.

We have jurisdiction pursuant to 28 U.S.C. y 1291 and we review de novo the

district court's decision upholding the denial of benefits. Bray v. Comm'r of Soc.

Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). A decision to deny benefits will

be disturbed only if it is not supported by substantial evidence or if it rests on legal

error. Id. We affirm.

      First, the ALJ provided 'specific, cogent reasons' for discounting Calµins's

subjective complaints of pain and other symptoms. See Bruton v. Massanari, 268

F.3d 824, 828 (9th Cir. 2001). The ALJ discussed thoroughly the medical and

other documentary evidence in the record, Calµins's history of substance abuse,

specific conflicts in Calµins's statements to doctors, and contradictions between

Calµins's testimony regarding her daily life activities and the statements of

Calµins's daughter and mother. This evidence is sufficient to support the ALJ's

determination that Calµins's subjective reporting was not credible. See Bray, 554

F.3d at 1227 ('In reaching a credibility determination, an ALJ may weigh

inconsistencies between the claimant's testimony and his or her conduct, daily

activities, and worµ record, among other factors.').



                                            2
      Second, substantial evidence supports the ALJ's determination that Calµins

retains the residual functional capacity to do a limited range of light worµ. The

ALJ provided 'specific and legitimate reasons,' supported by substantial evidence,

for rejecting Dr. Koseµ's controverted opinion that Calµins is restricted to part-

time sedentary worµ and for failing to credit the controverted opinion of Dr.

Shellman regarding Calµins's mental impairments. See Bray, 554 F.3d at 1228

(citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)); Ryan v. Comm'r of Soc.

Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

      Although Dr. Shellman performed a clinical examination of and

administered psychological testing to Calµins, it appears that in formulating his

opinions he relied to a very significant extent upon Calµins's subjective reporting.

Dr. Shellman diagnosed Calµins with '[m]ajor depressive disorder, recurrent,

severe with psychotic features'; '[p]ost-traumatic stress disorder, chronic';

'[a]lcohol abuse'; and '[s]edative, hypnotic, or angiolytic abuse.' It is unliµely

that such diagnoses could be based primarily upon the relatively superficial testing

Dr. Shellman administered during the single hour he spent with Calµins. In fact,

Dr. Shellman's report maµes clear that he relied upon Calµins's self-reporting,

stating that '[g]iven her history, I should consider her depression and post-

traumatic stress disorder to be primary and her problems with substance abuse the



                                           3
concomitance of the first two diagnoses.' (emphasis added). The only medical

records Dr. Shellman reviewed were hospital records from May and June 2003; the

rest of Calµins's medical history was obtained from Calµins herself. In light of the

ALJ's determination that Calµins's subjective reporting was not credible, the ALJ

permissibly discounted Dr. Shellman's findings. See Bray, 554 F.3d at 1228 ('As

the ALJ determined that Bray's description of her limitations was not entirely

credible, it is reasonable to discount a physician's prescription that was based on

those less than credible statements.').

      The dissent asserts that Dr. Shellman's opinion is materially

indistinguishable from the medical opinion that the agency was required to credit

in Ryan and accordingly that remand is appropriate in this case. While the two

medical opinions are similar in many respects, the ALJ in the instant case relied

explicitly upon substantial objective evidence of Calµins's lacµ of credibility as a

basis for rejecting Dr. Shellman's opinion. Ryan did not address the extent to

which an ALJ may consider such evidence when determining what weight to

accord a medical opinion. Under Bray, an ALJ properly may discount a

physician's opinion that is based solely upon a claimant's self-reporting if the ALJ

concludes that the claimant's self-reporting is not credible. Bray, 554 F.3d at

1228. Following the same rationale, an ALJ must be permitted to discount an



                                           4
opinion based principally upon a claimant's self-reporting if the record contains

objective evidence that the self-reporting is not credible.

      The dissent maintains that as long as a physician expresses no doubts about

the claimant's credibility and maµes at least some clinical findings consistent with

the diagnosis, the ALJ must credit the physician's opinion. There are many

situations in which applying Ryan in this way could lead to a problematic result.

For example, suppose a physician had diagnosed a claimant with severe depression

based primarily upon a self-reported history of suicide attempts. Suppose further

that the record contained objective evidence, not available to the physician, that the

claimant never had attempted suicide but had a history of lying to her doctors.

Following the dissent's view of Ryan, an ALJ would be required to credit the

diagnosis of depression as long as the physician believed the claimant and made at

least some independent clinical findings, even if it were apparent to the ALJ that

the physician's belief was based largely upon 'facts' that turned out to be untrue.

While it is not the role of an ALJ to second-guess physicians, ALJs must be able to

consider medical opinions in the context of the record as a whole.

      Finally, there is no merit to Calµins's claim that the ALJ failed to consider a

limitation on reaching indicated by Drs. Eder and Westfall, whose reports indicate

only that Calµins is limited to occasional overhead reaching bilaterally.



                                           5
AFFIRMED.




            6
                                                                             FILED
Calµins v. Astrue, No. 08-35927                                               JUN 17 2010

                                                                        MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, dissenting:                                           U.S . CO U RT OF AP PE A LS




      Although I agree with the court's conclusions that the ALJ properly

discounted Calµins's subjective complaints and Dr. Koseµ's opinion, and that the

ALJ did not fail to consider the reports by Drs. Eder and Westfall, I respectfully

dissent because I believe that the ALJ improperly discounted Dr. Shellman's

medical opinion.

      In Ryan v. Commissioner of Social Security, we held that an ALJ's own

doubts about a claimant's credibility do not justify rejecting an examining

physician's opinion that is based in part on the claimant's subjective complaints

'where the doctor does not discredit those complaints and supports his ultimate

opinion with his own observations.' 528 F.3d 1194, 1199-1200 (9th Cir. 2008).

Because the medical opinion that the court required the agency to credit in Ryan is

materially indistinguishable from Dr. Shellman's report here, I believe Ryan

requires that we remand this case to the agency for further proceedings.

      Liµe the examining psychiatrist in Ryan, Dr. Shellman expressed no doubts

about Calµins's credibility. Id. at 1200. Moreover, Dr. Shellman supported his

ultimate opinions with his own independent clinical observations to the same

extent as the doctor in Ryan. Whereas the examining physician in Ryan


                                          1
commented on the claimant's 'rapid speech,' id. at 1999, Dr. Shellman noted that

Calµins's speech was 'very soft and retarded in pace.' Whereas the physician in

Ryan noted that the claimant was 'easily agitated and appears to be very angry,'

id., Dr. Shellman recorded Calµins's 'quite depressed' mood. Whereas the

physician in Ryan reported that the claimant's affect was 'anxious, distraught,

nervous, shaµy, and edgy,' id., Dr. Shellman reported that Calµins's 'affect was

flat,' that she would 'breaµ into tears,' and that '[t]hroughout the evaluation,

questions had to be repeated several times.' Whereas the physician in Ryan

commented on the claimant's 'odd' behavior and mannerisms, id., Dr. Shellman

commented that Calµins's 'presentation and demeanor were consistent with her

allegations and the records reviewed.' In light of these similarities, I see no basis

to treat Dr. Shellman's opinion differently from the psychiatrist's opinion that we

required the agency to credit in Ryan.

      Contrary to the majority's assertion, Ryan is not distinguishable on the

ground that the ALJ in that case may not have pointed to substantial objective

evidence of that claimant's lacµ of credibility. Ryan did not base its holding in any

way on a lacµ of substantial evidence supporting the ALJ's adverse credibility

determination. Indeed, if the sufficiency of the ALJ's basis for discrediting the

claimant's complaints mattered, we could not have granted relief without first


                                           2
determining that the ALJ erred in discrediting the claimant's subjective complaints.

But we did not. The fact that Ryan neither assesses the ALJ's reasons for

discrediting the claimant's subjective reporting nor states that the ALJ failed to

provide any such reasons demonstrates that this evidence was utterly irrelevant to

our determination. Thus, the fairest reading of Ryan is that an ALJ's own doubt

about a claimant's credibility, whether supported by substantial evidence or not,

cannot constitute a 'clear and convincing' or 'specific and legitimate' reason to

discount an examining physician's opinion where the physician expresses no doubt

about the claimant's complaints and supports his conclusions with his own

observations. See id. at 1199-1200. The majority does not even attempt to

challenge this understanding of Ryan, but rather simply ignores it in its mission to

distinguish this clearly controlling authority.

      Indeed, the majority maµes little effort to distinguish Ryan, and its reasoning

reflects little more than a disagreement with Ryan's holding that doubts about a

claimant's credibility do not justify rejecting an examining physician's opinion

'where the doctor does not discredit [the claimant's] complaints and supports his

ultimate opinion with his own observations.' Ryan, 528 F.3d at 1199-1200. But

disagreement with that holding does not give us license to disregard it.

      First, the majority reveals its disagreement with Ryan by seeµing to expand


                                            3
Bray's rationale in a way that Ryan forecloses. In Bray, we held that the ALJ

properly discounted a physician's opinion where the opinion apparently was based

only on the claimant's subjective reporting, which the ALJ had properly

discounted. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th

Cir. 2009) (explaining that the 'ALJ need not accept the opinion of any physician,

including a treating physician, if that opinion is brief, conclusory, and inadequately

supported by clinical findings' before affirming the ALJ's decision to discredit a

physician's note prescribing 'worµ restrictions [that] were based on [the

claimant's] subjective characterization of her symptoms' (internal quotations and

citation omitted)). Contrary to the majority's suggestion, it does not follow from

Bray's rationale that an ALJ's supported adverse credibility determination can

liµewise justify discounting a physician's opinion that is in part based on the

physician's own clinical observations, rather than solely on the claimant's self-

reporting. Ryan forecloses such a holding, and for good reason: doubts about a

claimant's credibility, no matter how well supported, cannot taint a physician's

own clinical observations, and the ALJ must therefore provide 'specific and

legitimate' or 'clear and convincing' reasons to discredit the physician's

observations, and the resulting diagnosis.

      Second, the majority criticizes the 'problematic result[s]' that will follow


                                             4
from 'the dissent's view of Ryan.' Maj. Memo. at 5. But I do not offer a novel

view of Ryan, but rather simply propose applying its unequivocally stated rule: 'an

ALJ does not provide clear and convincing reasons for rejecting an examining

physician's opinion by questioning the credibility of the patient's complaints

where the doctor does not discredit those complaints and supports his ultimate

opinion with his own observations.' Ryan, 528 F.3d at 1199-1200. Because Dr.

Shellman supported his ultimate opinion with his own observations to the same

extent as the doctor in Ryan, I believe we are bound to follow Ryan here. Thus, it

is that controlling authority that dictates the results that the majority finds

'problematic.' Further, I do not find it particularly 'problematic' to prohibit an

ALJ from discrediting a physician's independent clinical findings without

providing independent reasons for doing so.

       Following Ryan, I would conclude that the ALJ erred in discounting Dr.

Shellman's expert opinion and accordingly reverse in part and remand for further

consideration at steps 4 and 5 of the sequential disability analysis.




                                            5
