FILED

NOT FOR PUBLICATION

AUG 02 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GINA L. SAMUELS, No. 14-15989

Plaintiff-Appellant, D.C. No. 2:12-cv-01665-JAT

v.

MEMORANDUM*

CAROLYN W. COLVIN, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Argued and Submitted May 11, 2016 San Francisco, California

Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.

Gina L. Samuels appeals from the district court order affirming the

Administrative Law Judge’s denial of her application for supplemental security

income under the Social Security Act. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. The ALJ provided “specific, clear and convincing reasons” for discounting

Samuels’s testimony on the “intensity, persistence, and limiting effect” of her

symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). Samuels’s self-reported

activities, the objective medical evidence, and Samuels’s failure to seek more

aggressive treatment were inconsistent with Samuels’s estimation of her abilities.

See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (holding that

applicant’s description of her childcare activities was inconsistent with her claim

that her pain from fibromyalgia prevented her from any gainful activity); see also

Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding that an ALJ may

consider objective medical evidence as a factor “in his credibility analysis”).

Though the ALJ made some errors when describing Samuels’s medical history, the

errors were ultimately harmless because the ALJ’s other grounds for discounting

Samuels’s testimony remained convincing. Carmickle v. Comm’r, Soc. Sec.

Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).

2. We reject Samuels’s claim that the ALJ improperly weighed the medical

source opinions of her treating providers. Dr. Soloman, a treating physician,

2 checked the “No” box on a check list that asked, “Can claimant perform work 8

hours a day, 5 days a week on a regular and consistent basis?” He wrote in that

“pain, fatigue, and smell” impaired her ability to do so and that she could only sit

for less than two hours, lift and carry less than ten pounds, and stand or walk for

less than two hours. But another physician, Dr. Cunningham, who examined

though did not treat Samuels, contradicted this assessment, saying that she could

lift or carry twenty pounds occasionally and ten pounds frequently, and stand or

walk for about six hours a day, and sit with normal breaks for about six hours a

day. He opined regarding her symptom reports that she was “partial[ly] credible;

for instance, states is in pain, but refuses pain meds.” Since Dr. Soloman’s opinion

was contradicted by Dr. Cunningham’s opinion, the ALJ could reject Dr.

Soloman’s opinion if the ALJ provided “‘specific and legitimate reasons’

supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821,

830 (9th Cir. 1995) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.

1983)).

Substantial evidence supports the specific reasons that the ALJ cited for his

assessment of Dr. Soloman’s opinion. Dr. Cunningham’s opinion that Samuels

was capable of “medium exertional work” was supported by his independent

3 examination of Samuels. See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007)

(“[W]hen an examining physician provides ‘independent clinical findings that

differ from the findings of the treating physician,’ such findings are ‘substantial

evidence.’” (quoting Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985))). And

Dr. Soloman’s opinion was only supported by a brief check-off form. Thomas v.

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The ALJ need not accept the opinion

of any physician, including a treating physician, if that opinion is brief, conclusory,

and inadequately supported by clinical findings”).

We also reject Samuels’s claim that the ALJ did not properly weigh

Katherine Lijoi’s opinion concerning the extent of her disabilities. Because Lijoi is

a nurse practitioner, and not a physician, she is not an “acceptable medical source”

under 20 C.F.R. § 404.1513(a). Accordingly, the ALJ needed only germane

reasons to discount her testimony. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.

2012). The ALJ provided such a reason by noting that the objective medical

evidence did not support Lijoi’s conclusions.

4 3. Samuels failed to object to the vocational expert’s testimony. Accordingly,

the issue was not preserved for appeal. See Meanel v. Apfel, 172 F.3d 1111, 1115

(9th Cir. 1999).

AFFIRMED.

5

FILED

Samuels v. Colvin, No. 14-15989

AUG 02 2016

WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

The ALJ’s decision in this case suffers from two major flaws: The ALJ

failed to provide valid grounds for discounting Samuels’ credibility, and the ALJ

did not properly weigh the opinions of the medical professionals who treated

Samuels.

First, the ALJ failed to provide clear and convincing reasons for discrediting

Samuels’ allegations about the intensity and effects of her symptoms. In

concluding that Samuels’ activities of daily living were inconsistent with her

subjective complaints, the ALJ found it “[m]ost significant[]” that Samuels has

been “able to care for her young children at home . . . without any particular

assistance.” But the record does not show that Samuels has been able to care for

her children, or perform other household tasks, without assistance. As in Garrison

v. Colvin, 759 F.3d 995 (9th Cir. 2014), where we reversed the ALJ for making a

similar error, Samuels emphasized that she had help, primarily from her teenage

daughter, in performing routine daily activities, and that she was regularly unable

to do laundry, prepare meals, or carry grocery bags by herself. See id. at 1015–16.

The ALJ also found Samuels’ subjective complaints inconsistent with the

medical evidence, but the ALJ’s reasoning was erroneous on this score as well.

The ALJ relied heavily on the apparent discrepancy between the relatively mild Page 2 of 3 objective indicators of rheumatoid arthritis in the record and Samuels’ complaints

of severe pain. The record contains an obvious explanation for that discrepancy,

which the ALJ failed to properly address. Samuels also suffers from fibromyalgia,

a disease that eludes objective measurement. See Benecke v. Barnhart, 379 F.3d

587, 590–91, 594 (9th Cir. 2004). The ALJ discounted the possible effects of

fibromyalgia on the ground that Samuels received “no specific treatment” for it.

The ALJ was wrong: One of Samuels’ treating rheumatologists, Dr. Smith,

assessed fibromyalgia to be “a major issue” and prescribed tramadol for pain in

December 2009. (It’s unclear in any event why receiving treatment specifically for

fibromyalgia—a rheumatic pain disorder, see id. at 589–90—would be relevant

when, as here, the claimant suffers from rheumatoid arthritis and receives

aggressive treatment for associated pain.) In evaluating Samuels’ credibility, the

ALJ erred by refusing to account for the possible effects of fibromyalgia on the

level of pain Samuels reported experiencing.

Second, the ALJ’s errors in assessing Samuels’ credibility also infected the

ALJ’s consideration of the opinions of the medical professionals who treated

Samuels. Dr. Soloman and Physician’s Assistant Lijoi, who both treated Samuels,

concluded that Samuels’ condition precluded her from sustaining an ordinary

eight-hour workday. Even though the ALJ needed to provide only “germane Page 3 of 3 reasons” for discounting Lijoi’s opinion, see Molina v. Astrue, 674 F.3d 1104,

1111 (9th Cir. 2012), the ALJ did not clear even that low bar. The ALJ rejected

both opinions because they were inconsistent with the relatively benign objective

indicators of rheumatoid arthritis, and because both Lijoi and Dr. Soloman based

their diagnoses at least in part on Samuels’ subjective complaints. But

fibromyalgia “is diagnosed entirely on the basis of patients’ reports of pain and

other symptoms,” Benecke, 379 F.3d at 590, so reliance on Samuels’ subjective

complaints is not an appropriate reason to discount either opinion. Nor could the

ALJ rely on the supposed inconsistency between the relatively mild objective test

results and Samuels’ reported level of pain. Lack of corroboratory test results is a

hallmark of the disease, which may cause immense pain nonetheless. See id. at

589–90, 594.

Because these errors are by no means harmless, I would reverse and remand

for further proceedings.