Sandra Gundy v. Michael Astrue , 433 F. App'x 595 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 19 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SANDRA K. GUNDY, No. 10-35306
Plaintiff - Appellant, D.C. No 3:09-cv-05111-KLS
v.
MEMORANDUM*
MICHAEL J. ASTRUE,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Karen L. Strombom, Magistrate Judge, Presiding
Argued and Submitted April 11, 2011
Seattle, Washington
Before: KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.
Sandra Gundy appeals the final decision of the Commissioner of Social
Security denying her application for disability insurance benefits under the Social
Security Act. We have jurisdiction under 28 U.S.C. §1291. We reverse and
remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
1. The ALJ improperly rejected the opinions of Gundy’s treating
physicians, who found that Gundy’s physical and mental limitations impaired her
ability to work. To reject the opinion of a treating doctor, the ALJ must present
specific and legitimate reasons based on substantial evidence in the record. Turner
v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010). Here, the ALJ erred
in rejecting Dr. Agunbiada’s assessment of Gundy’s ability to work because he
concluded that (1) the rating was based on a one-time examination; (2) Dr.
Agunbiada’s opinion was not adequately supported by her clinical findings, and (3)
Dr Agunbiada’s opinion was contradicted by that of examining physician Dr.
Quint, a urologist. The first reason is contradicted by the record; Dr. Agunbiada
was Gundy’s treating family physician and worked at the clinic that Gundy has
used for her primary care since the 1990s. The second reason could only be
reached by a crabbed reading of the record, which includes at least two
assessments by Dr. Agunbiada over a period of more than a year. The third reason
is not supported by substantial evidence in the record. The ALJ’s explanation that
Dr. Quint’s assessment is consistent with an “overall” record of improvement is
belied by the assessments of treating physicians over a period of several years, all
of whom found that Gundy variously suffered from moderate, marked, or severe
limitations in her daily functioning.
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2. Similarly, the ALJ improperly rejected the opinion of examining
family physician Dr. Grayson by concluding that her findings were contradicted by
Dr. Britz, a neurosurgeon. The record reveals, however, that Dr. Britz opined on
Gundy’s ability to return to pre-operative functioning after a follow-up surgery to
prevent recanalization of her brain aneurysm. By contrast, Dr. Grayson provided
an overall assessment of Gundy’s physical limitations, including complicating
factors like Gundy’s chronic obstructive pulmonary disease. Dr. Britz’s
assessment, therefore, neither contradicts, nor constitutes substantial evidence for
rejecting, Dr. Grayson’s assessment. See Turner, 613 F.3d at 1222.
3. The ALJ also uniformly rejected the opinions of Dr. Brose and Dr.
Eather, psychologists who examined Gundy at least three times over a period of
two years, stating that they were unsupported by clinical findings. The ALJ
instead relied on a records review that occurred before these mental health
assessments. This was error. The record indicates that both Dr. Brose and Dr.
Eather based their assessments on full examinations of Gundy. The records
review, undertaken without the benefit of the assessments of these examining
physicians, does not constitute substantial evidence for rejecting the later
assessments of the examining psychologists. The ALJ thus failed to present
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specific and legitimate reasons supported by substantial evidence for rejecting the
opinions of Dr. Brose and Dr. Eather.
4. Finally, where, as here, there is no evidence that a claimant is
malingering, an ALJ’s determination that the claimant is not credible must be
based on clear and convincing reasons. Valentine v. Comm’r of Soc. Sec. Admin.,
574 F.3d 685, 693 (9th Cir. 2009); Parra v. Astrue, 481 F.3d 742, 750 (9th Cir.
2007); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). The ALJ must specify
what testimony is not credible and what evidence undermines it. Parra, 481 F.3d
at 750. Here, to the extent the ALJ’s determination that Gundy was not credible
was based on the rejection of the physician and psychologist opinions that
supported her testimony, the credibility determination was in error.
5. As a consequence of these errors, the ALJ erred in his determination
of Gundy’s residual functional capacity and in finding that Gundy did not suffer
from significant non-exertional limitations. Consequently, we reverse the district
court’s judgment with instructions that it remand to the agency for the
determination of Gundy’s residual functional capacity and, if necessary, for a re-
evaluation of Gundy’s ability to engage in other substantial gainful activity at step
five of the sequential evaluation process in light of this disposition.
REVERSED and REMANDED.
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