                                                                               FILED
                           NOT FOR PUBLICATION                                 AUG 07 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GREGORY LEE MITCHELL,                            No. 13-35059

              Plaintiff - Appellant,             D.C. No. 2:11-cv-01941-RAJ

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Richard A. Jones, District Judge, Presiding

                 Argued May 15, 2014 Submitted August 7, 2014
                             Seattle, Washington

Before: O’SCANNLAIN, BERZON, and TALLMAN, Circuit Judges.

       Gregory Mitchell seeks judicial review of the denial of his claim for

disability benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review de novo the district court’s order affirming the Administrative

Law Judge’s (“ALJ’s”) denial of Social Security Disability Insurance and

Supplemental Security Income disability benefits, and we must independently

determine whether the ALJ’s decision is free from legal error and supported by

substantial evidence. See Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

“If the evidence can support either affirming or reversing the ALJ’s conclusion, we

may not substitute our judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin.,

466 F.3d 880, 882 (9th Cir. 2006).

      First, Mitchell contends that the ALJ erred by giving little weight to the

second assessment of treating physician Dr. Park, which was prepared in January

2010 and suggested that Mitchell was totally disabled. The ALJ instead gave great

weight to a January 2009 report prepared by Dr. Park concluding that Mitchell

could perform sedentary work. He also gave: (1) great weight to the opinion of

consulting physician Dr. Merrill, who concluded that Mitchell could perform

sedentary work with postural and environmental limitations; (2) limited weight to

the opinions of treating physician Dr. Pollack and consulting physician Dr.

Bernardez-Fu, who concluded that Mitchell could perform at least the full range of

sedentary work; and (3) rejected the opinions of consulting physician Dr. Attaman




                                         2
and P.A. Wade because Dr. Attaman only saw Mitchell one time and P.A. Wade is

not an “acceptable medical source under the regulations.”

      “Because treating physicians are employed to cure and thus have a greater

opportunity to know and observe the patient as an individual, their opinions are

given greater weight than the opinions of other physicians.” Smolen, 80 F.3d at

1285. But if a treating physician’s opinion is controverted, an ALJ can reject it by

providing specific, legitimate reasons for doing so that are based on substantial

evidence in the record. Id.

        The many experts who weighed in on Mitchell’s abilities did not agree.

And, the ALJ sufficiently detailed his reasons for rejecting Dr. Park’s second

opinion. The ALJ properly found that the second opinion was “inconsistent with

the objective medical evidence of record, demonstrating improvement in several of

the claimant’s impairments in 2009.” Specifically, the ALJ cited to exhibits

showing that, throughout 2009, Mitchell’s blood pressure was improving, his sleep

apnea was improving, he denied chest pain and related symptoms, and his




                                          3
sarcoidosis was stable.1 Based on this evidence, it was “far from clear that

[Mitchell’s] condition was progressively deteriorating.” See Young v. Heckler, 803

F.2d 963, 968 (9th Cir. 1986). The ALJ thus properly relied on Dr. Park’s first

opinion and the opinion of consulting physician Dr. Merrill.

      Second, Mitchell contends that the ALJ improperly discredited his symptom

testimony. When objective medical evidence establishes that the claimant suffers

from an impairment that could reasonably produce the symptoms complained of,

“an adverse credibility finding must be based on clear and convincing reasons”

unless there is affirmative evidence of malingering. Carmickle v. Comm’r, Soc.

Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008) (internal quotation marks and

quoting source omitted). Here, the ALJ provided clear and convincing reasons to

support his conclusion that the “intensity, persistence and limiting effects” of

Mitchell’s symptom testimony did not comport with the record. See Stubbs-

Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (quoting the ALJ

decision in Stubbs-Danielson). The ALJ also noted that Mitchell’s testimony was

      1
       The dissent, which objects to the ALJ’s rejection of Mitchell’s subjective
symptom testimony, states that Mitchell’s sarcoidosis was “diagnosed” as
progressive. But we read the record differently; the only use of the word
“progressive” in Mitchell’s medical record appears prior to his official sarcoidosis
diagnosis, when the doctor was merely prognosticating about the potential causes
of Mitchell’s symptoms. And, even progressive diseases can be stabilized by
treatment.

                                          4
inconsistent with the medical evidence showing improvement and with Mitchell’s

reported daily activities, which include caring for his children and himself as well

as driving, shopping, and riding a bicycle.

      The ALJ additionally relied on the fact that Mitchell has not been compliant

with his medical regimen. See Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir.

2012). Although some of this non-compliance is explained by insurance issues,

the balance of it, including Mitchell’s non-compliance with his diet and his failure

to take hypertension medications as directed, support the adverse credibility

finding.2 The ALJ also noted “multiple inconsistent statements” between

Mitchell’s testimony and his function report. And, although another ALJ may

have excused these inconsistencies, they fairly contributed to the ALJ’s ultimate

adverse credibility finding.




      2
         The dissent characterizes Mitchell’s repeated instances of non-compliance
as explainable “slip-ups.” But we read the record, which is peppered with
references to Mitchell’s failure to follow medical regimens, differently. As
discussed in the dissent, some instances of Mitchell’s non-compliance were
explained by administrative or comfort issues. But several were not. The
treatment notes indicate that Mitchell’s hypertension difficulties were exacerbated
because he was “not taking medication as directed.” They also show that, beyond
a failure to follow his recommended diet, Mitchell made his health worse by
“increas[ing] his intake of calories” and “gain[ing] some weight,” which made it
“more difficult of [sic] him to ambulate and cause[d] more knee pain.”

                                          5
      Third, Mitchell contends that the ALJ erred in finding that “a significant

number of jobs exists that [the] claimant can perform, in light of [his residual

functioning capacity], age, education, and work history.” This argument is waived

because Mitchell did not raise it before the district court. Edlund v. Massanari,

253 F.3d 1152, 1158 n.7 (9th Cir. 2001). But the argument would not persuade us

even if it could be considered.

      The Commissioner concedes that the ALJ erred in finding Mitchell capable

of performing three jobs when two of them were semi-skilled and the ALJ did not

make the necessary findings as to Mitchell’s ability to perform them. But the error

was harmless because the semiconductor bonding job, which comports with

Mitchell’s limitations, offers 1,300 regional positions and 41,000 national

positions. Although we have “never set out a bright-line rule for what constitutes a

‘significant number’ of jobs” to support a finding that the claimant is not disabled,

Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012), other cases have concluded

that fewer than 2,000 regional jobs is enough, see Thomas v. Barnhart, 278 F.3d

947, 960 (9th Cir. 2002) (1,300 jobs in Oregon was enough); Barker v. Sec’y of

Health & Human Servs., 882 F.2d 1474, 1479 (9th Cir. 1989) (1,266 regional jobs

was enough).

      AFFIRMED.


                                          6
                                                                                   FILED
Mitchell v. Colvin, No. 13-35059                                                   AUG 07 2014
BERZON, Circuit Judge, Dissenting:                                            MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS

      Despite evidence showing that Mitchell’s impairments changed over time,

the ALJ discredited Mitchell’s testimony as to the severity of his limitations on the

basis of a disability report that was two and a half years old. The ALJ should have

considered whether Mitchell’s symptoms had worsened over time before

disregarding his testimony. As the adverse credibility determination thus was

fundamentally flawed, I would reverse for that reason alone. Compounding my

concern is the fact that a different ALJ found Mitchell’s testimony credible and

awarded him benefits a mere twenty days after Mitchell was denied benefits in this

case. Accordingly, I respectfully dissent.

      1.     Social Security Administration rulings recognize that “[s]ymptoms

may vary in their intensity, persistence, and functional effects, or may worsen or

improve with time,” and that “this may explain why the individual does not always

allege the same intensity, persistence, or functional effects of his or her

symptoms.” SSR 96–7p, 1996 WL 374186, at *5 (July 2, 1996). Rather than

assume that an applicant whose assessments of his limitations worsen over time is

not credible, “adjudicator[s] . . . [are] to review the case record to determine

whether there are any explanations for any variations in the individual’s statements

about symptoms and their effects.” Id.
      The ALJ conducted no such review before dismissing Mitchell’s testimony

on the basis of perceived inconsistencies with a function report Mitchell completed

several years before the ALJ hearing. The ALJ’s failure to do so is particularly

troubling because Mitchell’s treating pulmonologist diagnosed Mitchell’s

sarcoidosis as “progressive.” In light of the evidence that Mitchell’s ailments were

not fixed in time, checkmarks in a years old disability report are not “clear and

convincing” evidence for finding Mitchell not credible. See Vasquez v. Astrue, 572

F.3d 586, 591 (9th Cir. 2008).

      2.     Examination of the record demonstrates that aside from the different

time period covered, some of the specific testimony that the ALJ identified as

inconsistent with Mitchell’s previous report was not. For example, the ALJ found

it inconsistent that Mitchell testified to only being able to lift ten pounds when he

previously stated he could lift twenty. However, in his 2007 disability report,

Mitchell stated that he can lift twenty pounds “occasionally” and ten pounds

“frequently”; before the ALJ, he testified that he could “probably move about ten

pounds” “without feeling . . . the exertion with the pressure on [his] chest.” The

latter statement is not inconsistent with earlier checking a box to indicate that he

could lift twenty pounds on occasion. Moreover, the same examiners to which the

ALJ afforded “great weight” also stated that Mitchell should not lift more than ten

                                           2
pounds, even occasionally.

      3.     Furthermore, the activities Mitchell reported in 2007 are not

inconsistent with a disability finding. The ALJ found it inconsistent for Mitchell to

fill out a disability report indicating he: “leaves his house alone; rides a bicycle;

drives every other day up to eight miles; washes dishes and vacuums from a seated

position; grocery shops every two to three weeks; cares for his children; and is able

to dress, bathe, care for his hair and teeth, shave, feed himself, and use the toilet.”

Most of the activities listed are “so undemanding that they cannot be said to bear a

meaningful relationship to the activities of the workplace.” Orn v. Astrue, 495

F.3d 625, 639 (9th Cir. 2007). Therefore they were not a proper basis for

discrediting Mitchell. Id.

      The outlier is Mitchell’s placing a checkmark in a box indicating he rides a

bicycle. However, contemporaneous treatment notes reflect that Mitchell “can ride

the bike to the end of [the] block and back before getting shortness of breath.” In

the context of this medical evidence, Mitchell’s statement that he rides a bicycle is

not inconsistent with the evidence that he suffers from shortness of breath and is

impaired. Discrediting Mitchell on the basis of this limited activity contravenes

the principle that “disability claimants should not be penalized for attempting to

lead normal lives in the face of their limitations.” Reddick v. Chater, 157 F.3d 715,

                                           3
722 (9th Cir. 1998).

      4.     The final ground for discrediting Mitchell was evidence that Mitchell

has not complied with his medication and diet, “suggest[ing] that his symptoms

may not have been as limiting as the claimant has alleged in connection with this

application.” The ALJ reasoned that if Mitchell were suffering from his

impairments as much as he insists, he would take his medication and would be

more strict with his diet.

      But disability adjudicators are “not [to] draw any inferences about an

individual’s symptoms and their functional effects from a failure to seek or pursue

regular medical treatment without first considering any explanations that the

individual may provide, or other information in the case record, that may explain . .

. failure to seek medical treatment.” SSR 96–7p at *7. Agency rules instead

advise that “to determine whether there are good reasons the individual does not . .

. pursue treatment in a consistent manner,” disability adjudicators “may need to

recontact the individual or question the individual at the administrative

proceeding.” Id.

      Here, the ALJ chose not to ask Mitchell about perceived inconsistencies in

following recommended treatment yet relied on those lapses to discredit him.

Moreover, the record is replete with explanations for Mitchell’s slip-ups. For

                                          4
example, the ALJ cites to a treatment note from the Heartbeat Institute stating

Mitchell “has been off Coreg for 1 week.” But that same note explains that the

stoppage was due to “insurance problems, now corrected.” The ALJ also cites to a

treatment note that reflects that Mitchell “has been off [Continuous Positive

Airway Pressure] CPAP” for three days. But earlier that same month, Mitchell

reported that he was finding it “difficult to wear” the CPAP and was “not getting

restful sleep” with it.

       Finally, the ALJ’s finding that Mitchell’s noncompliance with the

recommended diet supports a no-credibility finding conflicts with the law of this

circuit. Orn holds that failure to follow prescribed treatment is not equally

probative of credibility in all cases. 495 F.3d at 637–38. “In the case of a

complaint of pain, such failure may be probative of credibility, because a person’s

normal reaction is to seek relief from pain, and because modern medicine is often

successful in providing some relief.” Id. at 638. “But in the case of impairments

where the stimulus to seek relief is less pronounced, and where medical treatment

is very unlikely to be successful, the approach to credibility makes little sense.” Id.

       So, too, here. Unlike taking a pill to relieve pain, adherence to a low calorie

diet does not offer immediate or complete relief from the problems of obesity and

high blood pressure. For that reason, Mitchell’s (sporadic) noncompliance with his

                                          5
diet is not a clear and convincing reason for discounting his credibility.

      What is clear from the overall record is that Mitchell sought treatment from

his providers on a regular basis: He sought care from the Heartbeat Institute, for

example, twenty-eight times between 2006 and 2009. As the overall record shows

that Mitchell has consistently sought treatment for his various conditions,

Mitchell’s treatment history supports, rather than undermines, his testimony about

the intensity and severity of his symptoms.

      5.     Calling the ALJ’s credibility assessment further into question is the

fact that a different ALJ found Mitchell disabled based on the same basic medical

complaints twenty days after the ALJ’s denial. The “initial denial” of Mitchell’s

application and this “subsequent award [are not] easily reconcilable on the record

before” us. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). As there is a

“reasonable probability that the subsequent grant of benefits was based on new

evidence not considered by the ALJ as part of the first application,” at the very

least, “further consideration of the factual issues is appropriate to determine

whether the outcome of the first application should be different,” and particularly,

whether the ALJ erred in finding Mitchell’s testimony not credible. Id.

      For the foregoing reasons, I would not affirm, but would remand the denial

of Mitchell’s claim to the Social Security Administration.

                                          6
