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Full Opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GINA L. BRITTON, No. 13-35626
Plaintiff-Appellant,
D.C. No.
v. 2:11-cv-00314-
EFS
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, Senior District Judge, Presiding
Submitted May 4, 2015*
Seattle, Washington
Filed June 2, 2015
Before: Andrew J. Kleinfeld, Ronald M. Gould,
and Morgan Christen, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 BRITTON V. COLVIN
SUMMARY**
Social Security
The panel affirmed the district court’s judgment affirming
the administrative law judge’s denial of claimant’s
application for disability benefits under the Social Security
Act.
The panel held that the ALJ reasonably weighed the
medical evidence, and there was substantial evidence in the
record to support the ALJ’s determination that claimant was
not eligible for disability benefits. Specifically, the panel
held that the ALJ could have reasonably accorded little
weight to a medical expert’s opinion that claimant’s condition
equaled the listing of fibromyalgia. The panel also held that
the ALJ provided germane reasons for discounting the
testimony of a nurse practitioner. Finally, the panel held that
the ALJ did not err by not including claimant’s migraines in
the examination of the vocational expert because substantial
evidence did not support including the additional limitations
caused by claimant’s migraines in the vocational assessment.
COUNSEL
Dana C. Madsen, Spokane, Washington, for Plaintiff-
Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BRITTON V. COLVIN 3
Catherine Escobar, Assistant Regional Counsel, Office of the
General Counsel, Social Security Administration, for
Defendant-Appellee.
OPINION
PER CURIAM:
In 2007, Gina Britton filed for Social Security Disability
Insurance Benefits, citing an assortment of ailments:
fibromyalgia, migraines, generalized dystonia,1 and others.
Because of her impairments, Britton claimed she could not
work, could only drive “very short distances,” experienced
broken sleep, could only walk for five to fifteen minutes,
could only stand for fifteen minutes, could only sit for a few
minutes without adjusting her position, and could only lift
five to ten pounds.
The administrative law judge found otherwise. He found
that Britton could carry up to twenty pounds and could sit,
stand, or walk for six hours in an eight-hour workday. Based
on these findings, the administrative law judge determined
that Britton could perform light work with significant
limitations. Those limitations included one-day off per
month for medical reasons, five percent of the work day spent
off-task, no fast-paced settings, no exposure to moving
machinery or heights, only superficial public contact, and
only occasional interaction with coworkers and supervisors.
1
General dystonia is a neurological movement disorder in which
sustained muscle contractions cause twisting and repetitive movements or
abnormal postures.
4 BRITTON V. COLVIN
While the limitations excluded some of Britton’s past
jobs, a vocational expert testified that Britton was still
capable of performing several jobs she had previously held:
phlebotomist,2 sales clerk, waitress, and sandwich maker.3
Based on the testimony of the vocational expert that Britton
could perform the above jobs, the administrative law judge
denied Britton’s application for disability benefits. The
Social Security Appeals Council denied review, and the
district court affirmed on appeal.
On appeal to this court, Britton argues that the
administrative law judge did not reasonably weigh the
medical evidence because the medical expert, Dr. McBarron,
testified that Britton met the listing for fibromyalgia.
However, an administrative law judge may disregard medical
opinion that is brief, conclusory, and inadequately supported
by clinical findings. Bayliss v. Barnhart, 427 F.3d 1211,
1216 (9th Cir. 2005).
Here, the administrative law judge could have reasonably
accorded little weight to Dr. McBarron’s opinion that
Britton’s condition equals the listing of fibromyalgia. That is
because Dr. McBarron’s opinion could not possibly be right.
An alleged case of fibromyalgia cannot meet the listing for
fibromyalgia because fibromyalgia is not a listed disability.
See Social Security Ruling 12-2p at *2. Dr. McBarron even
acknowledged this later in his testimony.
2
A phlebotomist is a person who draws blood.
3
The administrative law judge found Britton capable of only light work.
The Dictionary of Occupational Titles describes sandwich maker as
medium work. However, the vocational expert noted that the sandwich
maker job Britton previously held could be considered light work.
BRITTON V. COLVIN 5
What Dr. McBarron may have meant was that Britton’s
fibromyalgia was severe enough to be equivalent to one of the
listed disabilities. However, Dr. McBarron’s testimony was
that Britton could perform light work. The ability to perform
light work is incompatible with a listed disability, for a listed
disability conclusively establishes that a claimant cannot
work and, hence, is eligible for disability benefits. See, e.g.,
20 C.F.R. § 404.1520(a)(4)(iii). Dr. McBarron’s testimony
did not support a finding that Britton’s fibromyalgia—
something Dr. McBarron even expressed doubt about—
rendered her unable to work.
It is true that Michael Keith, a nurse practitioner, opined
that Britton could not work because of her fibromyalgia.
However, a nurse practitioner is not an acceptable medical
source. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012). Rather, nurse practitioners are defined as “other
sources,” the testimony of whom the administrative law judge
may discount if he “gives reasons germane to each witness
for doing so.” Id.
The administrative law judge discounted Keith’s
testimony for a good reason: namely, that Dr. McBarron had
testified that Britton was capable of light work. In according
little weight to Keith’s testimony, the administrative law
judge also pointed to Britton’s daily activities, such as home
schooling her children, which discredited Keith’s opinion.
Britton asserts that Keith’s testimony should be accorded
deference as medical testimony because Keith worked closely
under Drs. Wukelic and Wu. This court held in Gomez v.
Chater that a nurse practitioner could be considered a
medically acceptable source where he worked so closely
under a physician that he was acting as the physician’s agent.
6 BRITTON V. COLVIN
Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996).4
However, nothing in the record indicates that Keith worked
so closely under Drs. Wukelic or Wu as to be considered an
agent of either. The record only shows that Keith, who
worked at Northwest Medical Rehabilitation, received
documents from and forwarded documents to the Rockwood
Clinic, where Drs. Wukelic and Wu worked. In fact, the
documents sent by the Rockwood Clinic incorrectly identified
Keith as a physician, suggesting that the Rockwood doctors
did not know Keith. Given that Keith worked in a different
doctors group and given that he was misaddressed, the record,
if anything, suggests that Keith did not work closely at all
under Drs. Wukelic and Wu. The administrative law judge
did not improperly weigh the testimony of McBarron and
Keith about Britton’s fibromyalgia.
Also, Britton maintains that the administrative law judge
erred by not including her migraine headaches in his
examination of the vocational expert. It is true the
administrative law judge did not expressly account for
Britton’s migraines in any of the hypothetical job seekers he
described to the vocational expert. “It is, however, proper for
an [administrative law judge] to limit a hypothetical to those
impairments that are supported by substantial evidence in the
record.” Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir.
2001).
Here, substantial evidence did not support including
migraines in the examination of the vocational expert. There
4
Gomez partially relied on 20 C.F.R. § 416.913(a)(6), which has been
repealed. See 65 Fed. Reg. 34950-01; Molina, 674 F.3d at 1111 n.3. We
express no view on the validity of Gomez. But even applying Gomez,
Keith should not be considered a medically acceptable source here.
BRITTON V. COLVIN 7
was no independent medical evidence establishing that
Britton suffers from migraines three to four days a month,
that she must rest when she gets them, and that they last for
two to four hours, as she claimed. While Dr. McBarron
testified to this effect, he relied exclusively on Britton’s
testimony regarding the frequency, duration, and intensity of
her migraines. Dr. McBarron’s testimony does not constitute
substantial evidence because it was based on Britton’s
testimony, which the administrative law judge determined
was not credible as to the severity or frequency of her
conditions. The vocational expert did take account of an
absence one day per month. Without substantial evidence to
support including additional limitations caused by Britton’s
migraines in the vocational assessment, it cannot be said the
administrative law judge erred in conducting the examination
of the vocational expert as he did.
There was substantial evidence in the record to support
the administrative law judge’s determination that Britton was
not eligible for disability benefits.
AFFIRMED.