Patricia Garcia v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA GARCIA,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
No. 14-16435
D.C. No. 1:13-cv-01220-SAB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Stanley Albert Boone, Magistrate Judge, Presiding
Submitted August 22, 2016**
Before: THOMAS, Chief Judge, D.W. NELSON, and LEAVY, Circuit Judges.
Patricia Garcia appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Garcia’s applications for disability
insurance benefits and supplemental security income under Titles II and XVI of the
FILED
AUG 24 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Social Security Act. Garcia contends that the administrative law judge (“ALJ”)
erred in giving little weight to the medical opinion of examining physician Dr.
Montgomery. We have jurisdiction under 28 U.S.C. § 1291. We review the
district court’s order de novo, Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
20120, and we affirm.
The ALJ provided specific and legitimate reasons for giving very little
weight to Dr. Montgomery’s contradicted opinion that Garcia could not use her
upper left extremity. First, the ALJ reasonably found that Dr. Montgomery’s
opinion was unsupported by his clinical findings showing that Garcia had some
reduced range of motion, but not a complete inability to use her left arm in a work
environment. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (noting
that when an ALJ is evaluating conflicting medical opinions, the ALJ need not
accept a medical opinion that is inadequately supported by clinical findings).
Second, the ALJ properly gave little weight to Dr. Montgomery’s opinion because
his opinion appeared to rely upon Garcia’s subjective complaints, which the ALJ
found were not credible, and Garcia does not challenge this finding on appeal. See
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding that an ALJ
may reject a medical opinion relying upon a claimant’s self-reporting that was
properly discounted as not credible).
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Garcia’s remaining contentions concerning the ALJ’s rejection of Dr.
Montgomery’s opinion lack merit.
Accordingly, substantial evidence supports the ALJ’s determination that
Garcia was not disabled within the meaning of the Social Security Act.
AFFIRMED.
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Patricia Garcia v Colvin 14-16435
Nelson, Senior Circuit Judge, dissenting:
The majority concludes that the ALJ provided specific and legitimate
reasons for giving very little weight to Dr. Montgomery’s opinions. I respectfully
disagree.
First, the ALJ did not reasonably conclude that Dr. Montgomery’s opinions
conflicted with his own examination of Garcia. Instead, the ALJ cherry picked the
negative diagnostic tests from Dr. Montgomery’s report while ignoring other
critical aspects. While the diagnostic tests reflect that Garcia may have reasonable
use her upper arm and shoulder, which is apparently all the ALJ considered, other
tests demonstrate that the opposite is true of her hand. Specifically, Dr.
Montgomery’s tests reflect substantial weakness in Garcia’s grip, limited range of
motion in her wrist, and extreme stiffness in Garcia’s fingers. Each time Dr.
Montgomery evaluated Garcia, he found significantly below normal range of
motion in all of the fingers on Garcia’s left hand. The ALJ’s determination that
Dr. Montgomery’s examination findings did not support his conclusion that Garcia
could not use her left arm in a work environment was therefore not legitimate.
Second, the ALJ did not reasonably conclude that Dr. Montgomery’s
opinions were based “to a large extent” on Garcia’s subjective complaints, which
the ALJ found were not credible. It is true that Garcia reported her alleged medical
FILED
AUG 24 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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history to Dr. Montgomery when he first evaluated her in 2005. It is also the case
that Dr. Montgomery included information in his February 5, 2010 report that he
may have learned from Garcia. But the fact that Dr. Montgomery interviewed
Garcia about her medical history and included limitations that he may have learned
from her in his 2010 report does not mean that his medical opinion was based “to a
large extent” on Garcia’s subjective complaints.
Our cases upholding an ALJ’s discounting of a physician’s opinion as
improperly based on a claimant’s self-reports have always required more than
appears in the record before us here. For example, in Tommasetti v. Astrue, we
affirmed a denial of benefits after specifically emphasizing the ALJ’s
determination that the medical opinion at issue “was essentially a ‘rehashing of
claimant’s own statement.’” 533 F.3d 1035, 1041 (9th Cir. 2008). Likewise, in
Fair v. Bowen, we affirmed an ALJ’s discounting of a physician’s opinion where
the physician specifically admitted that his “assessment . . . was premised to a large
extent upon the claimant’s own accounts of his symptoms and limitations.” 885
F.2d 597, 605 (9th Cir. 1989) (internal quotation marks omitted).
Here, there is nothing in the record reflecting that Dr. Montgomery’s opinion
was based “to a large extent” on Garcia’s subjective complaints. Instead, Dr.
Montgomery conducted extensive medical testing, that when considered as a
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whole, supports his conclusion that Garcia could not use her left hand. Dr.
Montgomery’s detailed reports are far from a “rehashing” of Garcia’s complaints
and nowhere does Dr. Montgomery admit that his conclusions were contingent
upon accepting Garcia’s complaints as fact. The ALJ’s determination that Dr.
Montgomery’s opinion appeared to be based on Garcia’s subjective complaint is
speculation.
Accordingly, in my view, the ALJ did not provide specific and legitimate
reasons for discounting Dr. Montgomery’s opinions. I dissent.
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