Marvin Thomas Shoemaker Ii v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARVIN THOMAS SHOEMAKER II,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 15-35858
D.C. No. 6:14-cv-01220-KI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted January 19, 2018**
San Francisco, California
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit Judges.
Marvin Thomas Shoemaker II appeals the district court’s affirmance of the
Commissioner of Social Security’s denial of his application for disability insurance
benefits under Titles II and XVI of the Social Security Act. We have jurisdiction
FILED
JAN 23 2018
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. R. App. P. 34(a)(2).

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under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v.
Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we affirm.
I
The Administrative Law Judge did not err in affording only “some weight”
to the opinion of examining psychologist Dr. Eckstein. Because Dr. Eckstein’s
examining opinion was inconsistent with other medical evidence in the record, the
ALJ had to provide “specific and legitimate reasons” to reject Dr. Eckstein’s
opinion.1 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). The ALJ gave two
specific and legitimate reasons for giving Dr. Eckstein’s opinion “some weight.”
First, the ALJ noted that the prepared form filled out by Dr. Eckstein
provided only options that correlate to no limitations, marked limitations, or
extreme limitations. Because the form was limiting, the ALJ instead credited Dr.
Eckstein’s narrative evaluation. An ALJ “may permissibly reject[] . . . check-off
reports that [do] not contain any explanation of the bases of their conclusions.”
Molina, 674 F.3d at 1111. The ALJ reasonably characterized Dr. Eckstein’s
1 Shoemaker argues that the applicable standard is whether the ALJ gave
“clear and convincing” reasons, Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir.
2012), because Dr. Eckstein’s opinion was based on testing that the other
physicians did not consider. This argument does not have merit. Though Dr.
Eckstein employed a different method for assessing Shoemaker’s psychological
functioning, she sought to evaluate the same characteristics as Dr. Salbador and the
agency psychologists did.
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narrative evaluation as supporting moderate limitations rather than a complete
inability to work.
Second, the ALJ noted that Dr. Eckstein wrote in her second evaluation that
Shoemaker’s situation was essentially unchanged from the year before, but
inconsistently reduced his GAF score from 52 to 45. Lacking the explanation in
Dr. Eckstein’s supplemental letter, the ALJ gave a specific and legitimate reason
for discrediting the lower GAF score.
The ALJ gave three additional reasons that are not specific or legitimate.
First, the ALJ noted Shoemaker’s failure to obtain psychotherapy or take his
psychotropic medications. Aside from whether these observations are supported
by substantial evidence, they are not a specific or legitimate reason to question Dr.
Eckstein’s opinion. Second, the ALJ stated that Dr. Eckstein did not attribute any
of Shoemaker’s cognitive deficits to marijuana, while Dr. Salbador noted that it
was unclear how much, if any, of Shoemaker’s anxiety was related to marijuana
use. This reason is not specific or legitimate because these opinions are not
inconsistent. Third, the ALJ perceived Dr. Eckstein’s second opinion to be overall
“less impartial and more apologetic,” which is not specific or legitimate. However,
these errors are harmless because the ALJ provided two legally sufficient reasons
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supported by substantial evidence. Carmickle v. Comm'r, Soc. Sec. Admin., 533
F.3d 1155, 1162 (9th Cir. 2008).
II
The ALJ did not err in assessing Shoemaker’s residential functional
capacity. Shoemaker alleges that the ALJ erred in making an adversity credibility
assessment of his testimony. However, the RFC accommodates Shoemaker’s
description of his symptoms and is supported by substantial evidence. Carmickle,
533 F.3d at 1163. Because the ALJ’s interpretation of Shoemaker’s testimony is
rational, the ALJ’s decision must be upheld. Molina, 674 at 1111.
Shoemaker identifies three limitations that he alleges would be part of the
RFC if the ALJ had fully credited his testimony. First, he argues that the RFC
should include a need to rest or lie down at will. Shoemaker testified that when his
pain is severe, he gets up and down, moves around in his seat to find a comfortable
spot, and lies down quite a bit. He testified that sometimes moving around can
make the pain better. A rational interpretation of this testimony is consistent with
the RFC requiring “the freedom to shift in his chair at will without taking him off
task.”
Second, and relatedly, Shoemaker argues that the RFC should reflect that he
cannot maintain attention because his pain interferes with his ability to focus or
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pay attention to things. Shoemaker testified that the pain interferes with his ability
to focus “quite a bit,” “at least every week.” However, Shoemaker has also
reported that he does not have “too many difficulties with his concentration
although his pain can cause him to lose focus when he is watching a show.” The
ALJ found that Shoemaker had moderate difficulties with concentration,
persistence, and pace and limited Shoemaker to “simple, routine tasks” with “the
freedom to shift in his chair at will without taking him off task.” These findings
are a rational interpretation of Shoemaker’s self-reported limited capacity to pay
attention due to his pain.
Third, Shoemaker argues that the RFC should incorporate an inability to
accept instructions and respond appropriately to criticism from supervisors. The
RFC reflects that Shoemaker “cannot work with the public or closely with co-
workers,” “cannot perform tasks as part of a team,” and “is limited to ever
interacting in close vicinity with more than two or three other persons.” This
finding is consistent with a rational interpretation of Shoemaker’s testimony that he
doesn’t deal well with other people and that he can deal with people one-on-one
but not in larger groups.
AFFIRMED.
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