Lorna Dorrell v. Carolyn Colvin

MEMORANDUM **

Lorna Dorrell appeals the district court’s order granting the Social Security Commissioner’s cross-motion for summary judgment and denying disability insurance benefits under Title II of the Social Security Act. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm the district court judgment.

First, substantial evidence supported the administrative law judge’s (“ALJ”) determination that Dorrell’s depression was not medically severe. Although the record established that Dorrell had a long history of depression, the record also established that her depression was treatable and responsive to medication.

Second, the ALJ gave specific, clear, and convincing reasons for finding Dorrell less than credible as to the severity of her migraine headaches. In particular, the ALJ noted that the migraine symptoms *481 Dorrell described appeared exaggerated given her daily activities and the significant gaps in treatment for Dorrell’s migraines as reflected in the record. See Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (listing factors “that an ALJ may consider in weighing a claimant’s credibility’ to include inconsistencies between testimony and conduct, daily…

dissenting:

Although the ALJ’s findings that Dor-rell’s depression was not severe enough to prevent her from working was supported by substantial evidence and free from legal error, the ALJ did not explain the decision to exclude Dorrell’s migraine headaches from the limitations in the residual functional capacity in spite of evidence in the medical records indicating that Dorrell had severe migraine headaches. This failure to provide a reasoned basis for rejecting two treating physicians’ opinions regarding Dorrell’s headaches constituted legal error. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (“[T]he Commissioner must provide ‘clear and convincing reasons’ for rejecting the uncontradicted opinion of an examining physician.”). Furthermore, unless a reviewing court can “confidently conclude that no reasonable ALJ, when fully crediting- the testimony, could have reached a different disability determination,” the error cannot be harmless. Stout v. Comm’r of Soc. Sec., 454 F.3d 1050, 1056 (9th Cir. 2006). Indeed, the error was not harmless here.

Therefore, I respectfully dissent.

FILED

NOT FOR PUBLICATION

NOV 02 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LORNA R. DORRELL, No. 14-17373

Plaintiff-Appellant, D.C. No. 2:13-cv-01227-CMK

v.

MEMORANDUM *

CAROLYN W. COLVIN, Commissioner Social Security Administration,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Craig Kellison, Magistrate Judge, Presiding

Submitted October 19, 2016** San Francisco, California

Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.

Lorna Dorrell appeals the district court’s order granting the Social Security

Commissioner’s cross-motion for summary judgment and denying disability

* 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. R. App. P. 34(a)(2). insurance benefits under Title II of the Social Security Act. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We affirm the district court…