Linda Bustamante v. Carolyn W. Colvin

MEMORANDUM *

Linda Bustamante appeals the district court’s judgment affirming the Commissioner of Social Security’s denial of her application for disability insurance benefits under Title II of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Bustamante’s main contention is that the ALJ erred by rejecting the opinion of a state agency examining psychiatrist in favor of the opinion of a nonexamining state agency reviewer. In particular, Busta-mante argues that the ALJ improperly relied on her failure to seek treatment and her noncompliance with the treatment she did receive to reject the examining psychiatrist’s opinion that she has disabling depression. Though Bustamante is correct that failure to seek or comply with treatment is an impermissible ground for rejecting a doctor’s diagnosis of mental illness when the failure is attributable to the mental illness, see Regennitter v. Comm’r of the Soc. Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir.1999), there is “no medical evidence that [Bustamante’s] resistance was attributable to her mental impairment rather than her own personal preference,” Molina v. Astrue, 674 F.3d 1104, 1114 (9th…

dissenting:

I respectfully dissent.

It is sometimes “reasonable for [an Administrative Law Judge (“ALJ”) ] to conclude that the level or frequency of treatment [is] inconsistent with the level of complaints” a claimant asserts or a medical expert finds. Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir.2012) (internal quotation marks omitted). But no reasonable factfinder could doubt that Bustamante is severely depressed, as evidenced by (1) her recent suicide attempt; (2) her multiple reported prior attempts; (3) her persistent suicidal ideation; and (4) her post-suicide-attempt diagnosis, by her treating psychiatric clinic, of “major depressive disorder, recurrent episode, severe.” Indeed, Bustamante’s recent suicide attempt and major depression diagnosis occurred after both mental health opinions discussed by the ALJ were rendered, serving strongly to corroborate'the examining doctor’s opinion the ALJ rejected, and severely to undermine the paper-review opinion the ALJ credited.

Furthermore, “an adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT APR 10 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

LINDA BUSTAMANTE, No. 13-15152

Plaintiff - Appellant, D.C. No. 2:12-cv-00075-NVW

v.

MEMORANDUM*

CAROLYN W. COLVIN, Commissioner of Social Security Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of Arizona Neil V. Wake, District Judge, Presiding

Argued and Submitted March 12, 2015 San Francisco, California

Before: BERZON, BYBEE, and OWENS, Circuit Judges.

Linda Bustamante appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of her application for disability

insurance benefits under Title II of the Social Security Act. 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 9th Cir. R. 36-3. Bustamante’s main contention is that the ALJ erred by rejecting the opinion

of a state agency examining psychiatrist in favor of the opinion of a…