Fernando Leon v. Nancy A. Berryhill, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO LEON,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant-Appellee.
No. 15-56237
D.C. No.
2:14-cv-08559-JEM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John E. McDermott, Magistrate Judge, Presiding
Submitted February 13, 2017**
Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and KORMAN,** District Judge.
FILED
APR 17 2017
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. App. P. 34(a) (2)
*** The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.

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Fernando Leon appeals the district court’s decision affirming the denial by
the Commissioner of Social Security of his applications for disability benefits. The
sequential evaluation process for determining whether a claimant is disabled has
five steps, only two of which are relevant here. See Lester v. Chater, 81 F.3d 821,
828 n.5 (9th Cir. 1995), as amended (Apr. 9, 1996). At step two, the
Administrative Law Judge (“ALJ”) found that Leon has the severe impairments of
degenerative disc disease, status post left knee injury, and a mood disorder not
otherwise specified. At step four, the ALJ found that Leon has a residual functional
capacity that allows him to perform medium work consisting of simple, repetitive
tasks.
On appeal, Leon’s principal argument concerns step four. He argues that his
moderate to marked limitations in concentration and completing a normal work-
day and work-month preclude him from working. Specifically, Leon relies on: (1)
the report of Dr. Betty Borden, an examining psychologist, stating that he has
moderate to marked limitations in these areas, (2) the report of his treating
physician, Dr. Nynn Soe, stating that he would need to take frequent breaks during
the work-day and miss work more than three times a month, and (3) the vocational
expert’s testimony that there would be no work available for an individual that has
a marked limitation “in the ability to maintain attention and concentration for
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extended periods” and has to take “unscheduled breaks” once “every hour for 10 to
15 minutes.” Thus, if the reports of Dr. Borden and Dr. Soe support these
limitations, it would require a finding that Leon is disabled. The dispositive issue,
then, is whether the ALJ’s rejection of these reports was supported by substantial
evidence.
1. An examining physician’s opinion, such as Dr. Borden’s, can be rejected
when it is internally inconsistent and conflicts with a non-examining physician’s
opinion. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602–03 (9th
Cir. 1999). Dr. Borden’s report defines a moderate limitation as one “which
affects but does not preclude ability to function,” and a marked limitation as one
“which seriously affects ability to function.” In the main section of her report, Dr.
Borden states that Leon has “marked impairment in the area of concentration,
persistence and pace as a result of depression and memory difficulties.” In the
summary conclusions checklist section, however, while she does check as
“markedly limited” Leon’s “ability to maintain attention and concentration for
extended periods,” , she checks as both “markedly” and “moderately limited”
Leon’s “ability to complete a normal work-day and work-week without
interruptions from psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods.” Dr. Borden
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does not explain this confusing conflation of the terms “markedly” and
“moderately limited,” even though the form instructs the completing physician to
“[r]ecord in this section any elaborations on the preceding capacities.”
Moreover, Dr. Borden’s reference to Leon’s depression as one of the causes
of his “marked impairment,” cannot be reconciled with the section of her report
titled “Diagnostic Impressions,” under which depression should have been listed as
coming within “Axis I.” “The American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders (4th ed. 1994, text rev. 2000) categorizes
mental diagnoses under five different axes. Axis I diagnoses include mood and
anxiety disorders.” Hallet v. Morgan, 296 F.3d 732, 748 n.8 (9th Cir. 2002).
Nevertheless, Dr. Borden’s report stated “[n]o diagnosis” for Axis I. Significantly,
her opinion that Leon has marked mental limitations is inconsistent with the
testimony of Dr. Edward Jasinski, to which the ALJ gave “great weight.” Dr.
Jasinski, a non-examining psychologist, testified that Leon had only “moderate
limitations with regards to concentration, persistence and pace and for complex or
detailed tasks.”
2. A treating physician’s opinion, such as Dr. Soe’s, can be rejected if it is
“brief, conclusory, and inadequately supported by clinical findings.” See Thomas
v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (citing Matney ex rel. Matney v.
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Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)). In a “Physical Residual Functional
Capacity Questionnaire,” Dr. Soe, an internist, stated that she expected Leon to
miss work more than three times a month. The ALJ, however, assigned “little
weight” to Dr. Soe’s report, and Leon has not challenged that finding on appeal or
before the district court. Indeed, it is unclear whether Dr. Soe attributed this
limitation to Leon’s mood disorder or his physical condition. Moreover, when
asked to “[i]dentify any psychological conditions affecting your patient’s physical
condition,” Dr. Soe checked “Depression,” and then simply wrote “get depress
[sic] at time.” Dr. Soe did not explain how Leon’s occasional depression affected
his ability to work. Indeed, later in her report, when asked to “describe any other
limitations []such as psychological limitations . . . that would affect your patient’s
ability to work at a regular job on a sustained basis,” Dr. Soe did not identify any
limitations, instead drawing a line through the area designated for a response.
3. Leon’s remaining argument that he “meets and/or equals 20 C.F.R., Part
404, Subpart P, Appendix 1 at Listing § 12.05C,” i.e., the listing for intellectual
disability, was not raised before the district court. Thus, it is waived on appeal.
AFFIRMED.
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