Kelly Lynette Mitchell v. CAROLYN W. COLVIN, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY LYNETTE MITCHELL,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
No. 13-17394
D.C. No. 2:12-cv-00358-CMK
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Craig M. Kellison, Magistrate Judge, Presiding
Argued and Submitted January 7, 2016
San Francisco, California
Before: WALLACE and KOZINSKI, Circuit Judges, and WHALEY,**
Senior District Judge.
Appellant Kelly Lynette Mitchell appeals from the Magistrate Judge’s order
FILED
MAR 15 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 Ninth Circuit Rule 36-3.
** The Honorable Robert H. Whaley, Senior District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.

-- 1 of 5 --

page 2
affirming the Commissioner’s denial of her application for disability benefits under
the Social Security Act, 42 U.S.C. §§ 401-434 & 1381-1383f. We affirm.
Mitchell alleges the Administrative Law Judge (“ALJ”) erred by: (1) improperly
rejecting the opinion of examining physician Dr. Patrick Wong, MD; (2) failing to
account for his own finding of moderate limitations in concentration, persistence,
and pace; and (3) failing to properly consider lay witness testimony.
Rejection of Examining Physician’s Opinion
An ALJ must give more deference to the opinion of a treating or examining
physician than that of a non-examining physician. Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1996) (as amended). If contradicted, an examining physician’s
opinion may be rejected for “specific and legitimate reasons that are supported by
substantial evidence in the record.” Id. at 830-31.
In the instant case, two state agency physicians, Drs. Wong and Loomis,
authored inconsistent opinions on Mitchell’s ability to adapt to a workplace and
workplace stressors. Both doctors found Mitchell able to carry out simple
instructions, but Dr. Wong opined that when exposed to workplace stressors,
Mitchell was at a high risk for functional deterioration. Dr. Loomis, on the other
hand, determined that Mitchell was able to maintain concentration, persistence, and
pace throughout a normal workday when restricted to simple tasks, and that she

-- 2 of 5 --

page 3
could adequately interact with co-workers and supervisors. Dr. Loomis
recommended Mitchell’s contact with the general public be restricted.
Although Dr. Wong examined Mitchell and Dr. Loomis did not, the ALJ
reduced the weight given to Dr. Wong’s opinion because it did not reflect the
progress shown by Mitchell in subsequent visits with her treating psychiatrist.
Mitchell visited Dr. Saba Rizvi, MD, for several months after visiting Dr. Wong,
and the record demonstrates a pattern of improvement. The functional capacity
assessed by Dr. Loomis is more consistent with the record, and we find no error in
the ALJ’s decision to assign great weight to Dr. Loomis’s opinion.
Mitchell’s Functional Limitations in Her Residual Functional Capacity
Mitchell claims that the ALJ’s failure to include his own finding of moderate
limitations in concentration, persistence, and pace in the residual functional
capacity assessment constitutes reversible error. We disagree.
Both Drs. Wong and Loomis assessed Mitchell capable of simple tasks. In
turn, the ALJ restricted Mitchell to “simple, repetitive tasks” in his determination
of Mitchell’s residual functional capacity. Based on this residual functional
capacity, a vocational expert opined that Mitchell was capable of working;
however, the vocational expert also stated that the addition of moderate limitations
in concentration, persistence, and pace would preclude her from work.

-- 3 of 5 --

page 4
This is similar to our previous holding in Stubbs-Danielson v. Astrue, 539
F.3d 1169 (9th Cir. 2008), in which the ALJ adequately accounted for the
claimant’s moderate limitations with regard to pace by limiting the claimant to
simple tasks at the recommendation of a non-examining state agency consultant
upon review of the medical record. Id. at 1173-74. In determining benefit
eligibility, the ALJ in Stubbs-Danielson rejected the portions of the vocational
expert testimony that were not specific to the residual functional capacity assessed
to the claimant. Id.
Here, the ALJ accounted for Mitchell’s moderate functional limitations in
the residual functional capacity. See id. at 1174 (holding that an ALJ’s “assessment
of a claimant adequately captures restrictions related to concentration, persistence,
or pace where the assessment is consistent with restrictions identified in the
medical testimony”). Because the ALJ’s assessment of Mitchell’s residual
functional capacity was proper and complete, the ALJ’s hypothetical question
based on that residual functional capacity was also proper and complete. See id. at
1175-76. Thus, the ALJ was entitled to find that Mitchell was not disabled based
on the vocational expert’s response to his question. The ALJ was also entitled to
reject the portion of the vocational expert testimony that was not responsive to the

-- 4 of 5 --

page 5
limitations he identified in his residual functional capacity assessment. See id. at
1173-74.
Rejection of Lay Witness Testimony
Finally, we find no error with the ALJ’s rejection of lay witness testimony
by Sally Lofthus, a former employer of the claimant.
To discount lay testimony, an ALJ must provide germane reasons. Dodrill v.
Shalala, 12 F.3d 915, 919 (9th Cir. 1993). An ALJ must “consider observations by
non-medical sources as to how an impairment affects a claimant’s ability to work.”
Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). However, non-medical
testimony cannot establish a diagnosis or disability absent corroborating competent
medical evidence. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).
The ALJ considered the contents of Lofthus’s letter, but chose not to give
weight to Lofthus’s opinion that Mitchell could not work because it was a
determination of disability. The opinion that Mitchell is unable to work is not
supported by the medical evidence, and it is non-medical testimony that attempts to
establish disability, which is impermissible. Id.
AFFIRMED.

-- 5 of 5 --