                                                                              FILED
                           NOT FOR PUBLICATION                                APR 08 2013

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



                            FOR THE NINTH CIRCUIT


RAYMOND M. PARENT,                               No. 11-35843

              Plaintiff - Appellant,             D.C. No. 9:10-cv-00144-JCL

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant - Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                  Jeremiah C. Lynch, Magistrate Judge, Presiding

                     Argued and Submitted November 8, 2012
                                Portland, Oregon

Before: RIPPLE,** TROTT, and PAEZ, Circuit Judges.

       Parent appeals the district court’s judgment affirming the Commissioner of

Social Security’s final administrative decision denying his second application for



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Kenneth F. Ripple, Senior Circuit Judge for the United
States Court of Appeals for the Seventh Circuit, sitting by designation.
disability insurance benefits and supplemental security income on the ground that

he was not disabled under the Social Security Act. We have jurisdiction over this

timely appeal pursuant to 28 U.S.C. § 1291, and we affirm.

      Parent raises three issues, each of which we address in turn.

                           Adverse Credibility Finding

      As part of the Administrative Law Judge’s determination at step four that

Parent had the residual functional capacity to perform light work, the ALJ was

required to assess his alleged pain and symptoms arising from his impairments. As

the ALJ explained, he was obliged to “evaluate the intensity, persistence, and

limiting effects of the claimant’s symptoms to determine the extent to which they

limit the claimant’s functioning.” And, to the extent Parent’s statements were not

substantiated by objective evidence, the ALJ had to make a “finding on the

credibility of the statements based on a consideration of the entire case record.”

      After so doing, the ALJ concluded that Parent’s “medically determinable

impairments could reasonably be expected to cause the alleged symptoms;

however, the claimant’s statements concerning the intensity, persistence and

limiting effects of those symptoms are not credible.” The ALJ factored Dr.

Forney-Gorman’s opinion into his discussion and evaluation of this issue.




                                          2
        The ALJ’s adverse credibility finding regarding Parent’s testimony was

adequately supported by clear and convincing evidence and reasons. This evidence

included the relevant inputs of Dr. Webber, Dr. Newbrough, Dr. Schofield, and Dr.

Bach.

        The record evidence of malingering is particularly telling with respect to

Parent’s credibility in connection with his description of the intensity, persistence,

and limiting effects of the symptoms caused by his impairments. In 2003, he

suffered an accident at work which he claimed materially interfered with his ability

to work. Less than two months later he was observed performing construction

work at a laundromat. The ALJ assigned to Parent’s first application for benefits

summarized Parent’s activities in his decision of September 7, 2007:

                     After considering the evidence of record, the
              undersigned finds that the claimant’s medically
              determinable impairments could reasonably be expected
              to produce the alleged symptoms, but that the claimant’s
              statements concerning the intensity, persistence and
              limited effects of these symptoms are not entirely
              credible.
                     The claimant’s longitudinal medical history does
              not support his allegations of disability. As a result of his
              work-related fall, the claimant was treated and examined
              by physicians under the direction of the Montana
              Workmen’s Compensation program. On July 10, 2003,
              the claimant was examined by Dr. Mark Paul, treating
              source, who noted that the claimant was complaining of
              severe back pain, numbness and radiation of pain in his


                                           3
right leg. Dr. Paul noted that the claimant was not
bearing weight on his right leg, but observed no other
functional abnormalities.
       On July 23, 2003, Dr. Paul again examined the
claimant, who was then complaining of pain in his
shoulders and right arm. He was also complaining of
frequent headaches and back pain. Dr. Paul diagnosed a
cervical, thoracic and lumbar strain secondary to a fall.
       Following these visits with Dr. Paul, video
surveillance of the claimant was obtained by workmen’s
compensation. On August 22, 2003, the claimant was
observed performing construction work at a laundromat
in Corvallis, Montana. Specifically, he was observed
bending and locking a trailer hitch, kneeling, carrying
laundry components and scrap metal out of the
laundromat and squatting to drill on a machine. He also
reached into a tool box and lifted out tools, dragged a
large object out the door and moved a large metal unit
without the aid of a hand truck. On August 24, 2003, he
was observed loading a large boom box into his car, and
he put long pieces of pipe into a scrap pile. The
undersigned notes that these activities are wholly
inconsistent with the claimant’s allegations . . . .
       Dr. Paul again examined the claimant on
September 30, 2003, noting that his pain behaviors in the
examining room were not consistent with his behavior in
the waiting room. Dr. Paul also reviewed the report
made from the surveillance video which indicated that
the claimant was performing heavy work tasks. Dr. Paul
concluded that there were no objective physical findings
which justified the claimant’s allegations, and he
informed the claimant that he would no longer provide
any treatment or care at his clinic. Shortly thereafter, the
claimant record indicates that the claimant’s workmen’s
compensation claim was closed. . . .
       Finally, as a result of this application, the claimant
underwent a psychological examination in May 2007. As


                             4
             noted above, Dr. Patricia Webber noted that the claimant
             endorsed illogical or highly atypical neurological
             symptoms, symptoms of memory impairment that were
             inconsistent with patterns of impairment seen in brain
             dysfunction or injury, atypical symptoms of depressions
             and anxiety, and symptoms atypical of psychotic
             disorders. In short, she opined that his evaluation was
             reflective of general malingering. In any event, she
             observed that the claimant’s speech, language, hearing
             and social skills were intact, and he retained the ability to
             concentrate and complete basic arithmetic.

(internal citations omitted). Dr. Webber also concluded that there was a “high

probability” that Parent provided to her information that was “systematically

biased to under-represent [his] level of function.”

      Finally, Parent’s description of his severe limitations with respect to the

current application for benefits was inconsistent with his daily activities and his

behavior and conviction for illegally obtaining prescription narcotics by

scavenging through estate sale garbage.

      In sum, Parent has a documented history of exaggerating the effects of his

medical problems in order to pursue benefits, as recorded by Dr. Webber.

                   The Opinion of Parent’s Treating Physician

      Parent claims the ALJ erred in rejecting the opinions of his treating

physician, Dr. Forney-Gorman. An ALJ may do so if the ALJ provides “specific




                                           5
and legitimate reasons supported by substantial evidence in the record.” Reddick

v. Chater, 157 F.3d 715, 725 (9th Cir. 1998).

      Dr. Forney-Gorman’s opinion was that Parent “is unable to work due to

chronic illness.” In a medical questionnaire dated November 2, 2009, she

indicated 1) that he would need to lie down 7-10 times a day for pain relief, 2) that

he was not capable of working an “8 hr/day, 5 days/week,” and that he would

probably miss work more than five days in an average month. When asked on the

questionnaire to provide the medical bases for these assessments, she wrote “See

medical records.”

      Here, as a beginning, we adopt without alteration the district court’s analysis

which we find to be correct.

                    Family practitioner Dr. Alison Forney-Gorman has
             been one of Parent’s treating physicians at least since
             August 2006. In November 2009, just a few weeks
             before the administrative hearing, Dr. Forney-Gorman
             completed a medical questionnaire on which she
             indicated that Parent could lift no more than 15 pounds,
             could stand, walk, and sit for a combined total of only
             three hours in an eight-hour day, would need to lie down
             seven to 10 times each day, and would miss more than
             five days of work each month.
                    The ALJ rejected Dr. Forney-Gorman’s restrictive
             assessment. The ALJ explained that, “having compared
             Dr. Forney-Gorman’s treatment notes with her
             assessment,” he did “not find support for the degree of



                                          6
limitations and frequency of rest breaks and absences
identified.”
         Although Dr. Forney-Gorman has been Parent’s
treating physician for a number of years, there are
relatively few progress notes. For the most part, it
appears that Dr. Forney-Gorman saw Parent on a
monthly basis during the relevant time period, usually to
refill his pain medications. As those progress notes
reflect, Parent had several severe impairments for which
Dr. Forney-Gorman prescribed pain medication. The
ALJ accepted as much, finding that Parent could not
return to medium-level work, and would be precluded
from performing any more than a limited range of light
work.
         Dr. Forney-Gorman’s progress notes do not,
however, contain much in the way of specific clinical
findings. And some of her observations are inconsistent
with the extreme limitations she later imposed. In
October 2009, for example, Dr. Forney-Gorman wrote
that [P]arent was in no acute distress, oriented, displayed
an appropriate mood and affect, good judgment, and
good insight. When she completed the subsequent
medical questionnaire, Dr. Forney-Gorman simply
referenced her progress notes. She did not point to or
identify any clinical findings, or otherwise explain what
it was that led her to impose such extreme limitations.
Absent any such explanation, the ALJ reasonably
rejected Dr. Forney-Gorman’s conclusory opinion. See
e.g. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
2002) (an ALJ may reject a treating physician’s opinion
if it is “brief, conclusory, and inadequately supported by
clinical findings”); Carmickle v. Comm’r of Soc. Sec.
Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (an
ALJ may discount a medical opinion based on
contradictions between the opinion and contemporaneous
treatment notes).



                            7
(record citations and footnote omitted).

      Returning to our analysis, Dr. Forney-Gorman’s opinion is not consistent

with other substantial evidence in the record. Here, it is important to distinguish

between Dr. Forney-Gorman’s medical findings and diagnosis, on one hand, and

her opinion related to Parent’s ability to work, on the other. The ALJ did not reject

Dr. Forney-Gorman’s diagnosis and medical findings, just her conclusory opinion

regarding Parent’s ability to work. Dr. Forney-Gorman’s notes reflect that much

of her information regarding the intensity, persistence, and limiting effects of

Parent’s impairments came from him. Ordinarily, this source would not be

suspicious, but given the self-serving problems with Parent’s credibility, this

circumstance diminishes the force of her opinion. It simply does not follow that

Dr. Forney-Gorman’s medical findings require a conclusion that Parent was

disabled and unable to work.

      The constellation of Parent’s impairments or combination thereof did not

meet or medically equal the criteria that end the inquiry at step three of a

claimant’s sequential evaluation, a point which Parent’s counsel does not contest.

Thus, the inquiry proceeded to the next step.

      20 C.F.R. § 404.1527 explains how the Social Security Administration

evaluates opinion evidence such as Dr. Forney-Gorman’s:


                                           8
             (b) How we consider medical opinions. In determining
             whether you are disabled, we will always consider the
             medical opinions in your case record together with the
             rest of the relevant evidence we receive.

             (c) . . . (3) Supportability. The more a medical source
             presents relevant evidence to support an opinion,
             particularly medical signs and laboratory findings, the
             more weight we will give that opinion.

(emphasis added) (internal citation omitted).

      In arriving at his conclusions, the ALJ said he carefully considered “all the

evidence.” With respect to his findings, he said he considered “the entire record.”

These statements encompass among other things the evidence of Parent’s

exaggerated effects of his impairments which in turn weighs against Dr. Forney-

Gorman’s opinion.

      We respectfully reject our concurring and dissenting colleague’s assertions

that we have inappropriately manufactured “ad hoc reasons” for disregarding Dr.

Forney-Gorman’s opinion, and that we have done for the ALJ what he should have

done himself. To test Dr. Forney-Gorman’s opinions on the subject, submitted by

Parent on his behalf, the ALJ simply followed the doctor’s lead. When she was

asked to provide “the medical bases” for her opinions, she directed everyone to her

“medical records.” Thus, the ALJ did what the doctor suggested, and he found

insufficient support -- as detailed by the district court -- for her unsubstantiated


                                           9
conclusions, as do we. We can hardly fault the ALJ for following the doctor’s

instructions to see if he could find what she suggested he would. He did not.

Neither do we.

                              Hypothetical Questions

      Parent’s final issue is that the ALJ inappropriately ignored the vocational

expert’s testimony as to the third hypothetical presented to him, a hypothetical

which included his limitations as described by Parent himself and by Dr. Forney-

Gorman. Because this claim is essentially a restatement of Parent’s unpersuasive

arguments regarding (1) his credibility, and (2) Dr. Forney-Gorman’s rejected

opinion, this claim also has no merit.

                                     Conclusion

      The ALJ concluded that “the evidence of record does not support finding the

claimant has restrictions greater than those identified in [his] residual functional

capacity.” The record supports this decision.

      AFFIRMED.




                                          10
                                                                              FILED
Parent v. Astrue, No. 11-35843                                                 APR 08 2013

                                                                           MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, concurring in part and dissenting in part.             U.S. COURT OF APPEALS



      I concur in the majority’s conclusion that the ALJ’s decision to discredit

Parent’s testimony is supported by substantial evidence. I disagree, however, with

the majority’s determination that the ALJ did not err in rejecting Dr. Forney-

Gorman’s opinion.

      A treating physician’s opinion is entitled to special weight because a treating

physician “is employed to cure and has a greater opportunity to know and observe

the patient as an individual.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.

1995) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). Thus, to

reject a treating physician’s opinion, an ALJ must “‘make[] findings setting forth

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

the record.’” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 692 (2009)

(quoting Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)). An ALJ can

only meet this burden “by setting out a detailed and thorough summary of the facts

and conflicting clinical evidence, stating [his] interpretation thereof, and making

findings.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting

Magallanes, 881 F.2d at 751).

      Although the district court and majority provide their own reasons for

                                     Page 1 of 6
setting aside Parent’s treating physician’s opinion, the ALJ did not. I am also not

persuaded by the majority’s attempt to distinguish between rejecting a treating

physician’s “medical findings and diagnosis” and rejecting a treating physician’s

opinion with respect to a patient’s inability to work. Mem. at 9. Such a distinction

is unfounded in reason and this court’s case law. A physician’s opinion with

respect to a patient’s inability to work is, of course, a medical finding. Indeed, it is

ordinarily the relevant medical finding for purposes of disability claims. See

Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (holding that the ALJ’s

rejection of the treating physicians’ “opinions of total disability” was not supported

by substantial evidence). Because the ALJ failed to meet his burden, I would

reverse and remand.

      The sole explanation the ALJ gave for disregarding the opinion of Dr.

Forney-Gorman, Parent’s treating physician, was cursory at best: “[H]aving

compared Dr. Forney-Gorman’s treatment notes with her [assessment in the

disability medical questionnaire], the undersigned does not find support for the

degree of limitations and frequency of rest breaks and absences identified.” We

have rejected such vague and conclusory explanations as insufficient to meet the

“specific, legitimate reasons” standard. In Embrey, we confronted a similarly

vague finding by the ALJ: “The opinions of total disability tended [sic] in the

                                      Page 2 of 6
record are unsupported by sufficient objective findings and contrary to the

preponderant conclusions mandated by those objective findings.” 849 F.2d at 421.

We explained:

      To say that medical opinions are not supported by sufficient objective
      findings or are contrary to the preponderant conclusions mandated by
      the objective findings does not achieve the level of specificity our
      prior cases have required. The ALJ must do more than offer his
      conclusions. He must set forth his own interpretations and explain
      why they, rather than the doctors’ are correct.

Id. at 421-22; see also Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009).

      The ALJ’s decision in this case suffers from the same fatal flaw of lack of

specificity. It was not enough for the ALJ merely to say that Dr. Forney-Gorman’s

opinion is not supported by her progress notes without more. He must set forth his

interpretations of the doctor’s notes and explain why they are insufficient to

support her medical conclusions regarding Parent’s inability to work. This is

critical here because, in the twenty pages or so of treatment notes that are in the

record, nothing glaringly conflicts with Dr. Forney-Gorman’s opinions. In fact,

many of the notes reflect chronic pain and sleep deprivation that “significantly

limit[ Parent] during the day.”

      The “ALJ need not accept the opinion of any physician, including a treating

physician, if that opinion is brief, conclusory, and inadequately supported by



                                     Page 3 of 6
clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). But the

ALJ must state that the medical opinion’s brevity or lack of support is the reason

for his decision and explain his reasoning with specificity. Such specific reasoning

is entirely lacking in the ALJ’s decision here. Instead, the ALJ’s decision leaves

this court with the unacceptable task of speculating about what may have motivated

his decision to disregard the treating physician’s medical opinion. The “specific,

legitimate reasons” standard was adopted precisely because an appellate court

cannot engage in such speculation when determining whether an ALJ’s decision is

supported by substantial evidence. Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th

Cir. 1991) (en banc) (“As we have previously recognized, a reviewing court should

not be forced to speculate as to the grounds for an adjudicator’s rejection of a

claimant’s allegations of disabling pain.”); see also Robbins v. Soc. Sec. Admin.,

466 F.3d 880, 884 n.2 (9th Cir. 2006) (“Indeed, with no reference to the record in

this part of the decision, we are left to guess what testimony the ALJ was

considering and why he thought it undermined Robbins’s credibility. . . . Our

review of the record on this issue . . . is beside the point. See SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947) (emphasizing the ‘fundamental rule of

administrative law’ that ‘a reviewing court, in dealing with a determination or

judgment which an administrative agency alone is authorized to make, must judge

                                     Page 4 of 6
the propriety of such action solely by the grounds invoked by the agency’);

Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (‘We are constrained to

review the reasons the ALJ asserts.’).”).

      Despite the foregoing, the district court’s ruling and the majority’s judgment

affirm the ALJ’s decision by providing an independent analysis of Dr. Forney-

Gorman’s treatment notes. Thus, the district court and majority, relying on the

district court’s analysis, provide their own “specific, legitimate reasons” for

disregarding Dr. Forney-Gorman’s medical opinion. The district court notes that

there were “relatively few progress notes” based on the number of years Dr.

Forney-Gorman provided treatment; that they did not contain “much in the way of

specific clinical findings”; and that some were inconsistent with extreme

limitations, such as an October 2009 note that Parent was “in no acute distress,

oriented, displayed an appropriate mood and affect, good judgment, and good

insight.” The district court also noted that Dr. Forney-Gorman failed to bolster her

opinion with specific clinical findings.

      If the ALJ had provided any of these reasons in his decision, his

determination to disregard the doctor’s opinion might very well pass muster under

the specific and legitimate reasons test. It is nonetheless worth noting that in the

same October 2009 note the district court references, Dr. Forney-Gorman indicated

                                     Page 5 of 6
that Parent was experiencing worsening shortness of breath and dry cough; flaring

COPD symptoms and hip pain; pain uncontrolled by his prescription for Lortab;

limited range of motion secondary to pain; and diminished strength secondary to

pain. These notes support a finding of significant disability. These differing

interpretations of that single note demonstrate why it was conjecture for the district

court to opine as to why the ALJ found that the notes did not support Dr. Forney-

Gorman’s medical conclusions.

      We cannot—nor may the district court—provide ad hoc reasons for

disregarding a treating physician’s opinion where the ALJ provides none. Nor can

an ALJ meet his burden of providing specific, legitimate reasons for rejecting a

treating physician’s opinion by simply referring “everyone” to the doctor’s

treatment notes without any reasoning. Mem. at 10. I would reverse and remand

to the Commissioner because the ALJ, in developing his residual functional

capacity determination provided no specific reasons of his own for disregarding

Dr. Forney-Gorman’s opinion. Because I would reverse and remand on this issue,

I would also remand the related issue of whether the hypothetical questions posed

to the vocational expert were legally correct.




                                     Page 6 of 6
