holding that any error the ALJ may have committed in assuming without 25 confirmation from the record that plaintiff was sitting while watching television and thus 26 engaging in inconsistent daily activities was harmless and did not “negate the validity of 27 the ALJ’s ultimate conclusion that [plaintiff’s] testimony was not credible”
How later courts described this case
- holding that any error the ALJ may have committed in assuming without 25 confirmation from the record that plaintiff was sitting while watching television and thus 26 engaging in inconsistent daily activities was harmless and did not “negate the validity of 27 the ALJ’s ultimate conclusion that [plaintiff’s] testimony was not credible”
- finding that the ALJ properly 24 discounted a medical opinion that was in the form of a checklist, was not supported 25 by objective evidence, “was contradicted by other statements and assessments of 26 [Plaintiff’s] medical condition, and was based on [Plaintiff’s] subjective descriptions 27 of pain”
- finding harmless error where one of the 25 agency adjudicator’s reasons for discrediting a claimant’s testimony was not supported by the record but two other reasons were, such that there was substantial evidence to 26 support the ultimate credibility determination
- holding that the ALJ did not err in giving minimal weight to the views of treating physicians whose opinions were conclusory, in the form of a check list, lacked substantive medical findings, and conflicted witji the “results of a consultative medical evaluation”
Written by the judges who cited it.
The opinion
GRABER, Circuit Judge,
dissenting.
I respectfully dissent. In my view, the administrative law judge (ALJ) relied on two factors that are not supported by the record. I am not convinced that the ALJ necessarily would have reached the same conclusion under a correct analysis of the record. Accordingly, we should reverse and remand for reconsideration.
1. Watching Television
One of the factors on which the ALJ relied in finding Batson’s complaints of pain incredible was this:
[Batson] stated in his Activities of Daily Living (ADLs) and Socialization Questionnaire, dated January 7, 1999, that he watches television or listens to the radio between eight and ten hours. He also stated in the Claimant’s Questionnaire, dated September 14, 1999, that he watches television at least six hours a day. Since he is capable of sitting watching television, between six-ten hours a day, it is an indication he should be capable of sitting at least six hours out of an eight hour work day and it is not unreasonable to assume his impairment would not prevent him from being gainfully employed.
(Emphasis added; exhibit references omitted.)
As the majority points out, the record does not support that reasoning. Batson never said that he was “sitting” while watching television. It is possible to watch television while lying down, reclining, or standing, as well as while sitting; and at home one can change positions at will.
Moreover, it is hard to imagine an activity less indicative of work capability than passively watching television or listening to the radio. The ALJ apparently would condemn every claimant to a world of utter silence if the claimant is expected to prove impairment.
2. Dr. Keenen’s Opinion on Disability
The ALJ rejected the disability opinion of Dr. Keenen, Batson’s treating physician, for the following reasons:
We [sic] have reviewed Dr. Keenen’s report[of June 21, 1999], and give minimal evidentiary weight since Dr. Keenen states these restrictions are based on *1199 the claimant’s subjective descriptions of pain.
We [sic] have considered Dr. Keenen’s report [of September 28, 1999,] and given minimal evidentiary weight because it is in the form of a check list without supportive objective evidence.
Although Dr. Keenen’s opinion as a treating physician is acceptable evidence, we have considered all medical reports and given minimal evidentiary weight because of the contradictory statements and assessments of the claimant’s medical condition.
(Exhibit references omitted.)
In my view, it is not possible to understand Dr. Keenen’s opinion to rest solely on subjective complaints. Nor is it appropriate to view one of Dr. Keenen’s reports, in isolation, as a mere checklist. The Social Security regulations make clear that a treating physician’s reports are to ' be viewed in light of the entire treatment relationship. The weight accorded a treating physician’s opinion depends on the length of the treatment relationship, the frequency of visits, and the nature and extent of treatment received. 20 C.F.R. § 404.1527 (d)(2)®, (ii).
Batson began to experience pain in his neck and left upper extremity in October 1996. An MRI in 1997 revealed disc herniation, and Dr. Keenen — a Board-certified orthopedic surgeon who completed a fellowship in spinal surgery' — performed surgery on Batson on September 3, 1997. In an October 1998 examination report, Dr. Keenen discussed a later MRI showing that there “is some protrusion of disc material at the level of the arthrodesis that is potentially causing some of [Batson’s] symptoms.” On September 14, 1999, Dr. Keenen identified “cervical spondylosis” as “the vertebrogenic disorder” from which Batson suffered. He also reported “significant limitation of motion in the spine,” muscle weakness, and sensory loss — as well as pain. Dr. Keenen expressly concluded that Batson’s physical impairments were reasonably consistent with his symptoms and functional limitations and that Batson had no psychological limitations. Dr. Keenen also referred the reader to his office notes for additional information. Dr. Keenen’s office notes state that Batson continued to have neck and upper extremity pain as of January 12,1999.
It is true that, in response to a request for information regarding Batson’s work restrictions, Dr. Keenen wrote: “These restrictions are based on subjective descriptions of pain.” But it is only by taking that response entirely out of context that the ALJ could reject Dr. Keenen’s opinion as lacking a basis in objective medical findings.
To summarize, Dr. Keenen had treated and examined Batson on many occasions for more than two years, and he performed back surgery on Batson in 1997. The ALJ’s stated reasons essentially ignore that significant history when discounting Dr. Keenen’s opinion because of the isolated use of a checMist sent to him by someone else.
The ALJ’s final error is the grudging statement that a treating physician’s opinion is merely “acceptable” evidence. “A treating physician’s medical opinion as to the nature and severity of an individual’s impairment must be given controlling weight if that opinion is well-supported and not inconsistent with the other substantial evidence in the case record.” Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir .2001); see also 20 C.F.R. § 404.1527 (d)(2). Even when not accorded controlling weight, a treating physician’s opinion is entitled to deference. When contradicted by the opinion of a non7treat-ing physician, the treating physician’s opinion “can only be rejected for specific and legitimate reasons that are supported *1200 by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995). The ALJ’s quoted rejection of Dr. Keenen’s opinion fails to meet that standard.
In conclusion, the ALJ’s reasons for rejecting Dr. Keenen’s opinion are not supported by substantial evidence in the record as a whole, and one of the ALJ’s reasons for disbelieving Batson is not supported by any evidence. Therefore, I would reverse and remand. I respectfully dissent from the majority’s contrary conclusion.