Lorain Benear v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORAIN BENEAR,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 19-15444
D.C. No. 2:17-cv-04160-JAT
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted February 2, 2021
Phoenix, Arizona
Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.
Lorain Benear 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. While we review de novo the district court’s order, we
FILED
MAR 4 2021
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.

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may only set aside the Commissioner’s denial of benefits if it is not supported by
substantial evidence or is based on legal error. Ford v. Saul, 950 F.3d 1141,
1153–54 (9th Cir. 2020). We affirm.
First, we conclude that the administrative law judge (“ALJ”) provided
specific and legitimate reasons for discounting the opinions of Benear’s three
treating physicians. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). The
ALJ afforded little weight to the opinion of Dr. Hayashi primarily because his
opinion was conclusory “and unsupported by the medical evidence.” While a
physician’s use of checkbox forms is not by itself a reason to discount his or her
opinion, Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017), the ALJ’s
assessment is nonetheless supported by substantial evidence. There is no
explanation of the inconsistency between Dr. Hayashi’s notes from his office visit
examinations and his evaluations on the forms concluding that Benear was so
impaired. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (noting that
incongruence between a physician’s questionnaire opinion and medical records is a
specific and legitimate reason to discount her opinion).
In affording little weight to Dr. Hagevik’s opinion, the ALJ noted that Dr.
Hagevik only briefly treated Benear, and the results of his examinations were
unremarkable. The ALJ discounted Dr. McClain’s opinion that Benear “will never
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be able to work,” because he acknowledged in the same letter that he “do[es] not
a[ss]ess patients for work related activities.” Moreover, the ALJ reasonably
considered that Dr. McClain’s assessment was contradicted by the consulting
physician’s examination of Benear. In sum, the ALJ provided specific and
legitimate reasons for rejecting the treating physicians’ opinions.
Second, the ALJ properly relied on Dr. Ostrowski’s opinion and acted within
her discretion when she denied Benear’s requests to subpoena the agency’s
consulting and examining physicians for in-person testimony. See 20 C.F.R.
§ 404.950(d)(1); Ford, 950 F.3d at 1154.
Third, the ALJ’s conclusion that Benear’s mental impairments were non-
severe is supported by substantial evidence. The ALJ discussed Benear’s initial
function report and first psychological examination, and explained that the second
psychological examiner believed that Benear may have been exaggerating her
symptoms. The ALJ also concluded that Benear’s ability to bathe and dress on her
own, drive, and conduct herself appropriately at dozens of medical appointments
suggested that Benear’s mental impairments resulted only in mild limitations.
Finally, the ALJ provided clear and convincing reasons for discounting
Benear’s pain testimony. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (as
amended). We agree with Benear that the ALJ’s reliance on medical appointments
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that predate Benear’s amended disability onset date was misplaced. However, the
ALJ’s remaining rationales for discounting Benear’s testimony, namely that her
subjective complaints were inconsistent with her largely conservative treatment
and some of her conduct, are supported by substantial evidence. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“A decision of the ALJ will not be
reversed for errors that are harmless.”). With one exception during the relevant
period, Benear’s physicians treated her pain with only medications and braces.
Benear was able to drive independently and travel. The ALJ also properly
considered the consulting psychologist’s report that Benear attended her
examination dressed for a cocktail party while claiming not to attend to personal
hygiene. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (noting that an
ALJ may consider inconsistencies between a claimant’s testimony and an
examining physician’s observations in assessing the credibility of subjective pain
testimony).
AFFIRMED.
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