                                                                             FILED
                           NOT FOR PUBLICATION
                                                                             DEC 09 2016
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LUCRETIA V. JOHNSON,                             No.   14-17089

              Plaintiff-Appellant,               D.C. No. 3:13-cv-05163-JSC

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

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                Jacqueline Scott Corley, Magistrate Judge, Presiding

                           Submitted October 17, 2016**
                             San Francisco, California

Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.

      Lucretia Johnson appeals the district court’s order affirming the

Administrative Law Judge’s (ALJ’s) partial denial of benefits. We have

jurisdiction under 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.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      First, substantial evidence supported the ALJ’s conclusion that the opinions

of Drs. Thompson and Leon were inconsistent with the findings of Dr. Polner. Dr.

Polner’s evaluation is relevant evidence even though it addressed Johnson’s

workers’ compensation claim. See Desrosiers v. Sec’y of Health & Human Servs.,

846 F.2d 573, 574-78 (9th Cir. 1988). The record establishes that Dr. Polner’s

report clearly contradicted the opinions of Drs. Thompson and Leon. For example,

Dr. Polner’s 2011 report concluded that Johnson should be given vocational

rehabilitation to find another job whereas in 2012 Drs. Thompson and Leon opined

that Johnson could not work at all. Similarly, in 2011 Dr. Polner concluded “none

of the testing suggests that [Johnson’s] clinical symptoms are grossly

incapacitating.” Dr. Thompson, however, found that Johnson was “unable to work

secondary to depression, anxiety, cognitive deficits, and emotional instability. She

will remain off work indefinitely.” Dr. Leon likewise reported that Johnson’s

symptoms fell under the most grave categorization level (“severe”) for twelve out

of twenty rating parameters included in the Social Security Administration’s

Medical Source Statement form. As such, substantial evidence supported the

ALJ’s conclusion that Dr. Polner’s report contradicted the opinions of Drs.

Thompson and Leon.




                                          2
      Second, the reports of Drs. Thompson and Leon regarding Johnson’s

purported inability to work and Johnson’s testimony to the same end also

contradicted her admitted daily activities. Matriculating in basic college classes

(even with academic accommodations), driving to doctor appointments and to

college Monday through Thursday, preparing her own meals and doing her own

laundry, and participating in physical exercise classes together are clearly

inconsistent with the notion that Johnson could not work at all. In particular,

Johnson’s testimony that the intensity and persistence of her symptoms limited her

ability to work was not credible because it contradicted her extensive daily

activities and college matriculation. The ALJ gave specific, clear, and convincing

reasons for finding Johnson’s testimony regarding the severity of her symptoms

less than credible. Robbins v. SSA, 466 F.3d 880, 883 (9th Cir. 2006).

      For these reasons, the ALJ also properly concluded that Drs. Thompson and

Leon’s opinions contradicted both Dr. Polner’s report and Johnson’s admitted daily

activities. As such, “specific and legitimate reasons supported by substantial

evidence in the record” existed for the ALJ properly to discount the opinions of

Drs. Thompson and Leon as well as Johnson’s testimony regarding her inability to

work. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (internal quotation marks

omitted).


                                           3
      Third, because the ALJ rightly discounted the opinions of Drs. Thompson

and Leon as well as Johnson’s testimony regarding the severity of her symptoms, it

was proper not to include the vocational limitations suggested by this evidence in

the hypothetical questions the ALJ posed to the vocational expert (VE). Bayliss v.

Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005) (explaining that an ALJ need

pose only hypothetical questions to a VE based on limitations found credible and

supported by substantial evidence in the record). The learning disability diagnosed

by Dr. Webster, even if included in the hypothetical questions to the VE, would not

have been relevant to determining whether Johnson could perform unskilled and

simple entry level work.

      Fourth, the ALJ’s determination that Johnson improved medically after

April 2011 complied with relevant regulations and law. As required by 20 C.F.R.

§ 404.1594(b)(1) and Attmore v. Colvin, 827 F.3d 872, 876 (9th Cir. 2016), the

ALJ considered Johnson’s symptoms during her closed period of disability before

April 2011 and later assessed Johnson’s symptoms after April 2011 when medical

improvement had purportedly occurred. The ALJ explicitly relied on the findings

of Dr. Polner’s 2011 report, which itself compared the medical evidence used to

determine that Johnson was disabled before April 2011 with the medical evidence

used to determine that she later medically improved. As such, the ALJ’s


                                         4
determination that Johnson medically improved as of April 2011 was legally

proper and supported by substantial evidence.

      In sum, the district court properly granted the Social Security

Commissioner’s cross-motion for summary judgment.

      AFFIRMED.




                                          5
                                                                       FILED
Lucretia V. Johnson v Colvin 14-17089
                                                                        DEC 09 2016
THOMAS, Chief Judge, dissenting:                                    MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS

      I respectfully dissent. The key issue in this case is whether Dr. Polner’s

report clearly contradicted the opinions of Johnson’s treating physicians, Drs.

Thompson and Leon, who concluded she could not work. I see no contradiction

that justifies the ALJ’s rejection of the treating physicians’ opinions. “A

willingness to try to engage in rehabilitative activity and a release by one’s doctor

to engage in such an attempt is clearly not probative of a present ability to engage

in such activity.” Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978). Moreover,

Johnson’s symptoms may have been “severe,” such that she could not work, even

if they were not “grossly incapacitating.”

      Johnson’s college attendance, with significant accommodations (and

relatively good grades), and her daily activities were consistent with her testimony

about her limitations and with Dr. Thompson’s and Dr. Leon’s opinions. Johnson

was not claiming a totally debilitating impairment. Rather, she alleged she cannot

complete simple tasks at a consistent pace without extra assistance, an

unreasonable number and length of rest periods, and undue interruptions or

distractions.1


      1
         It is worth noting that Johnson was taking college courses during the time
period in which the ALJ found her disabled.
      At best, the evidence suggests Johnson’s progress was slow and she

benefitted from treatment. The ALJ, however, was required to examine the

evidence in the broader context of Johnson’s impairment. See Attmore v. Colvin,

827 F.3d 872, 877 (9th Cir. 2016) (citing Garrison v. Colvin, 759 F.3d 995, 1018

(9th Cir. 2014)) (stating the ALJ must use examples that constitute examples of a

broader development); Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)

(“That a person who suffers from severe panic attacks, anxiety, and depression

makes some improvement does not mean that the person’s impairments no longer

seriously affect her . . . .”). Though Johnson’s participation in college classes

suggests some improvement, Johnson’s improvement was quite limited (as

suggested by Dr. Polner’s finding that her functional level remained the same), and

it is unclear whether the improvement was sustained given Dr. Thompson’s

additional requests for school accommodations in 2012, and Dr. Thompson’s and

Dr. Leon’s 2012 findings.

      For these reasons, I conclude that the Commissioner failed to meet her

burden of showing Johnson medically improved, and the Commissioner should

reinstate benefits until substantial evidence shows Johnson is capable of sustained

gainful employment. See Cassiday v. Schweiker, 663 F.2d 745, 750 (7th Cir.

1981). Therefore, I respectfully dissent.

                                            -2-
