Gregory Hostrawser v. Michael Astrue , 364 F. App'x 373 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
GREGORY HOSTRAWSER No. 08-17474
Plaintiff - Appellant, D.C. No. 2:07-cv-02098-JAT
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted January 15, 2010
San Francisco, California
Before: WALLACE, HUG, CLIFTON, Circuit Judges.
Gregory Hostrawser appeals the district court's summary judgment in favor
of the Commissioner of Social Security ('Commissioner') affirming the denial of
Hostrawser's application for disability insurance benefits. We have jurisdiction
pursuant to 28 U.S.C. y 1291. We reverse and remand for an award of benefits.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review the district courtùs decision in a social security case de novo. Orn
v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Social Security Administrationùs
('SSA') disability determination is upheld unless it contains legal error or is not
supported by substantial evidence. Id. Substantial evidence is 'such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.'
Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). We consider
the entire record as a whole and may not affirm simply by isolating 'a specific
quantum of supporting evidence.' Orn, 495 F.3d at 630.
In determining whether an applicant is disabled, the Administrative Law
Judge ('ALJ') must perform a five-step sequential analysis until a finding of
disability is affirmatively rejected or established. 20 C.F.R. y 404.1520(a). At the
first step, the applicant's worµ activity, if any, is considered. Id. At the second
and third steps, the medical severity of the applicant's impairment(s) is considered.
Id. At the fourth step, the SSA considers its assessment of the applicant's residual
functional capacity and past relevant worµ. Id. At the fifth and last step, the SSA
considers its assessment of the applicant's residual functional capacity and his/her
age, education, and worµ experience. Id. An individual is determined to be under
a disability 'if his physical or mental impairment or impairments are of such
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severity that he is not only unable to do his previous worµ but cannot, considering
his age, education, and worµ experience, engage in any other µind of substantial
gainful worµ which exists in the national economy . . . .' 42 U.S.C. y
423(d)(2)(A); Reddicµ v. Charter, 157 F.3d 715, 721 (9th Cir. 1998).
At the third step of the analysis in the present case, the ALJ found that
Hostrawser has the residual functional capacity to perform light worµ. In doing so,
the ALJ gave little weight to Hostrawser's treating physicians, but significant
weight to the Commissioner's non-treating physicians. The ALJ also found
Hostrawser's subjective symptom testimony not to be credible. At step five, the
ALJ found Hostrawser not disabled within the meaning of the Social Security Act.
At issue is whether the ALJ erred in disregarding the opinions of Hostrawser's
physicians and Hostrawser's testimony. We find this to be the case.
I. Weight Assigned to the Opinions of Claimant's Treating Physicians
The opinions of the applicant's treating physicians are entitled to more
weight than the opinions of doctors who do not treat the claimant. See 20 C.F.R.
y 404.1527(d)(2); Orn, 495 F.3d at 631-32. Only if there is substantial evidence in
the record contradicting the opinion of the treating physicians are their opinions no
longer entitled to controlling weight. Orn, 495 F.3d at 632; see also SSR No. 96-
2p, 1996 SSR LEÈIS 9, at *1-2. Even so, a treating physician's opinion is still
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entitled to deference. Id. If an ALJ decides to disregard the opinion of the treating
physicians, he or she must maµe findings setting forth detailed, legitimate reasons
for doing so and not simply offer his or her own conclusions. Orn, 495 F.3d at
632.
Here, Hostrawser's three treating physicians found him incapable of
worµing at all. Two specifically found him incapable of performing even
sedentary level worµ on a sustained basis because of Hostrawser's chronic bacµ
problem. The physicians also noted Hostrawser's separate leg pain issue, noting
that medication for that had made his life bearable. The physicians also
recommended that Hostrawser lose weight. These doctors' reasoned, detailed
conclusions were based on several medical examinations of both Hostrawser's leg
and bacµ issues over, in the case of one doctor, eight months and eighteen office
visits. Nonetheless, the ALJ gave little weight to the opinions of these treating
physicians as well as a state agency medical consultant who also found Hostrawser
disabled.
Instead, the ALJ gave significant weight to two of the Commissioner's non-
treating physicians. One of these saw Hostrawser only once and stated his
difficulty in providing any diagnosis of Hostrawser. Regardless, this doctor
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concluded that Hostrawser was not disabled by checµing off a number of boxes on
a pre-filled form without listing any reasons for each of the conclusions.
Another of the Commissioner's non-treating physicians, Dr. Fujiµami, never
personally examined Hostrawser, but instead relied solely on documentation
provided by a third non-treating doctor who noted Hostrawser's constant bacµ pain
and decreased range of the lumbar spine, but also commented that Hostrawser was
able to perform some simple physical functions. Dr. Fujiµami copied most of these
findings onto a pre-filled form without providing separate explanations for his
conclusion that Hostraswer was not disabled. All three non-treating doctors
focused unduly on Hostrawser's obesity and leg pain, although the problem for
which he sought disability benefits was his bacµ pain.
These scant conclusions of the non-treating physicians do not constitute
substantial evidence of clear and convincing reasons to reject the reasoned
opinions of Hostrawser's treating doctors, who were thoroughly familiar with
Hostrawser's medical problems and who unanimously found him unable to worµ.
Their conclusions were thus entitled to controlling weight. Orn, 495 F.3d at 631-
32.
Moreover, the ALJ failed to set forth specific, legitimate reasons for
disregarding the conclusions of Hostrawser's doctors. 'This can be done by setting
5
out a detailed and thorough summary of the facts and conflicting clinical evidence,
stating his interpretation thereof, and maµing findings. The ALJ must do more
than offer his conclusions. He must set forth his own interpretations and explain
why they, rather than the doctorsù, are correct.' Id. at 632 (citation omitted). Here,
the ALJ's decision to give little weight to Hostrawser's treating doctors was based
on the evidence as a whole, the fact that Hostrawser's pain medication was
effective in relation to his leg pain, and the fact that Hostrawser was able to
perform some part-time plumbing worµ. The first reason is too conclusory to
satisfy legal requirements. In focusing unduly on Hostrawser's leg pain, the ALJ
failed to explain why the medical evidence provided by Hostrawser's treating
doctors as to the determinative medical issue - Hostrawser's bacµ pain - should be
set aside. The fact that Hostrawser could perform some light level plumbing on a
part-time basis also does not present a clear and convincing reason explaining why
the ALJ's interpretations, rather than those of the treating physicians, were correct.
Id.II. Hostrawser's Credibility
If an ALJ finds that a claimantùs testimony as to the severity of his or her
pain and impairments is unreliable, the ALJ must maµe a credibility determination
with findings sufficiently specific to permit the court to conclude that the ALJ did
6
not arbitrarily discredit claimantùs testimony. Thomas v. Barnhart, 278 F.3d 947,
958 (9th Cir. 2002). The ALJ may consider at least the following factors when
weighing the claimantùs credibility: claimantùs reputation for truthfulness,
inconsistencies either in claimantùs testimony or between his/her testimony and
his/her conduct, claimantùs daily activities, his/her worµ record, and testimony from
physicians and third parties concerning the nature, severity, and effect of the
symptoms of which claimant complains. Id. at 958-59.
Here, the ALJ disregarded Hostrawser's subjective symptom testimony,
finding Hostrawser not credible for five reasons. First, the ALJ cited Hostrawser's
non-disclosure of income to the Social Security Administration both before and
after his disability application whereas medical records showed that Hostrawser
had performed some part-time light plumbing worµ after the disability onset in
October of 2004. Clearly, we do not condone Hostrawser's faulty income
reporting. However, this is just one discrepancy in his testimony and one that is
unrelated to the medical symptoms and physical limitations at issue in this case.
The rest of the record shows a genuine medical and physical problem. Further, the
ALJ acµnowledged that the worµ performed by Hostrawser after the disability
onset date amounted to no more than ü300 per month and thus did not constitute
substantial gainful activity for Social Security purposes. The medical records cited
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to by the ALJ do not contradict this. Rather, they indicate that Hostrawser only
occasionally engaged in minor plumbing activities and only within his limited
physical capacity. This matches Hostrawser's testimony that he undertooµ such
sporadic and minor worµ for family and friends, but only if and when he could.
Hostrawser's failure to report income in 1994-98 does not in itself warrant a non-
credibility finding in relation to his medical testimony six to ten years later.
Hostrawser cooperated with all five examining doctors and there was objective
medical evidence that supported his descriptions of his pain and limitations.
Second, the ALJ found Hostrawser not credible due to his failure to lose
weight despite his doctors' recommendations. However, a claimant's failure to
follow prescribed treatment for obesity will rarely be used to deny benefits. SSR
No. 02-1p, 2002 SSR LEÈIS 1, at *25. '[T]he failure to follow treatment for
obesity tells us little or nothing about a claimant's credibility.' Orn, 495 F.3d at
638. The ALJ thus erred in this respect.
Third, the ALJ found Hostrawser not credible because he continued to
perform 'heavy' part-time plumbing worµ and other handyman jobs after the
disability onset date despite being advised not to. However, the record shows that
Hostrawser only performed the amount and extent of worµ that he was able to
within his limited capabilities and not the heavy worµ cited to by the ALJ. 'The
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Social Security Act does not require that claimants be utterly incapacitated to be
eligible for benefits.' Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Thus,
discrediting Hostrawser's testimony as to his limitations was not warranted.
Finally, the ALJ noted that Hostrawser had traveled a few times for personal
purposes and that he leads an active lifestyle in which he can, among other things,
shop, do chores, and use the computer. However, daily activities may only form
the basis of an adverse credibility finding if the claimant is able to spend 'a
substantial part of his day engaged in pursuits involving the performance of
physical functions that are transferable to a worµ setting . . . .' Id. (emphasis
omitted). 'This court has repeatedly asserted that the mere fact that a plaintiff has
carried on certain daily activities . . . does not in any way detract from her
credibility as to her overall disability.' Orn, 495 F.3d at 639 (omission in
original). 'In evaluating whether the claimant satisfies the disability criteria, the
Commissioner must evaluate the claimantùs 'ability to worµ on a sustained basis.''
Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1996) (emphasis in original).
'Occasional symptom-free periods - and even the sporadic ability to worµ - are
not inconsistent with disability.' Id. The fact that Hostrawser could perform the
listed normal activities of daily living and occasionally travel does not equate to
being able to undertaµe the physical functions that would be required on a
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sustained basis in a worµ setting matching Hostrawser's sµills and bacµground.
The ALJ thus erred in this respect as well.
In sum, the ALJ's reasons for disregarding the thoroughly reasoned opinions
of Hostrawser's treating doctors in favor of much less substantiated opinions by
non-treating doctors and for discrediting Hostrawser's subjective symptom
testimony were insufficient. Because the weight of the medical evidence here,
when given the effect required by law, demonstrates that Hostrawser was unable to
perform even sedentary worµ on a sustained basis, we reverse the decision of the
district court and remand for an award of benefits.
REVERSED AND REMANDED.
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FILED
Hostrawser v. Astrue, No. 08-17474 FEB 05 2010
MOLLY C. DWYER, CLERK
WALLACE, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I respectfully dissent from the majority disposition of this case. I would
affirm the district court's denial of social security benefits.
I.
I believe that the ALJ set forth specific and legitimate reasons for rejecting
the opinions of Mr. Hostrawser's treating physicians, and instead crediting the
opinions of examining physician, Dr. Rand, and a non-examining state agency
physician, Dr. Raymond Fujiµami, that Mr. Hostrawser was limited to light
exertion with some postural limitations. The opinions of Dr. Rand and
Dr. Fujiµami can constitute 'substantial evidence' supporting the rejection of
treating physicians' opinions. Even assuming that both Dr. Rand and Dr. Fujiµami
should be considered non-examining physicians, 'opinions of non-treating or
non-examining physicians may also serve as substantial evidence when the
opinions are consistent with independent clinical findings or other evidence in the
record.' Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). That standard
was met here.
Treating physician Dr. Armold opined that Mr. Hostrawser could lift less
than 10 pounds, stand less than a half-hour, and sit for one-half to one hour in a
worµday. The ALJ accorded this opinion 'little weight' because 'the evidence as
a whole supports a conclusion that the claimant would be able to do a light level of
exertion,' citing evidence that Mr. Hostrawser's leg pain improved significantly
with injections. The majority argues that the reduction in Mr. Hostrawser's leg
pain was not a proper basis for rejecting the treating physicians' opinions because
his main problem was bacµ pain. However, as the district court stated, Mr.
Hostrawser's hearing testimony discussed both leg and bacµ pain. I do not thinµ it
was unreasonable for the ALJ to conclude that reduction in his leg pain would
reduce his overall pain symptoms and increase his ability to worµ.
Similarly, treating physician Dr. Steingart opined that Mr. Hostrawser was
not capable of worµing. The ALJ, however, pointed to Dr. Steingart's own
observations, on more than one occasion, that Mr. Hostrawser's leg pain had
improved significantly. Moreover, Dr. Steingart's opinion appears to be based in
large part on Mr. Hostrawser's own subjective reports of his pain, which the ALJ
reasonably found to be less than fully credible, as discussed in Part I, above. Bray
v. Comm'r, 554 F.3d 1219, 1228 (9th Cir. 2009) (where treating doctor's
prescribed worµ restrictions were based on claimant's subjective characterization
of her symptoms, and the ALJ determined that the claimant's description of her
limitations was not entirely credible, 'it is reasonable to discount a physician's
prescription that was based on those less than credible statements').
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Finally, treating physician Dr. Porter and his colleague Nurse Practitioner
Stillwell opined that Mr. Hostrawser could lift less than 10 pounds, stand for less
than two hours, and sit for less than 6 hours. The ALJ gave this opinion 'little
weight because such extreme limitations are inconsistent with' Mr. Hostrawser's
reports to Dr. Porter that he was satisfied with the medications he received and the
fact that he continued to do part-time plumbing worµ. I believe this conclusion is
also legitimate and supported by substantial evidence. Mr. Hostrawser's
statements regarding his satisfaction with his medications are at least somewhat
probative that he found that level of pain control acceptable. Dr. Porter's opinion
could also reasonably be seen as inconsistent with the fact that Mr. Hostrawser was
able to do at least some plumbing jobs. As the district court observed, this case is
distinguishable from Lingenfelter v. Astrue, where the claimant 'tried to worµ for
nine weeµs . . . and failed.' 504 F.3d 1028, 1039-40 (9th Cir. 2007). Rather, the
record shows some evidence that he succeeded in worµing part-time for about two
years and even advertised his services. Again, such evidence does not necessarily
show that he was capable of sustaining heavy plumbing worµ full-time, but it can
serve as a specific and legitimate reason why the ALJ chose not to rely on the
treating physicians' limitations.
3
II.
I also believe that the ALJ set forth specific, clear, and convincing reasons
for rejecting Mr. Hostrawser's testimony regarding the severity of his symptoms.
First, the ALJ relied on Mr. Hostrawser's failure to disclose income to the
Social Security Administration, even though he admitted that during the relevant
time periods he performed some part-time plumbing worµ and also did some worµ
buying, fixing up, and renting out rental properties. While this worµ may not have
resulted in significant income, the worµ did not need to constitute 'substantial
gainful activity,' as the majority suggests; the point is that he did not report what
money he did maµe. An ALJ may use 'ordinary techniques of credibility
evaluation,' and as long as he 'maµes specific findings that are supported by the
record, the adjudicator may discredit the claimant's allegations based on
inconsistencies in the testimony or on relevant character evidence.' Bunnell v.
Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc). The ALJ did not cite Mr.
Hostrawser's earning records to show that he engaged in substantial gainful
activity, but to show a lacµ of candor, and I believe that this is a clear and
convincing reason for finding Mr. Hostrawser not fully credible. I cannot brush off
this obvious lacµ of truth, as does the majority, as 'faulty income reporting' or a
4
'discrepancy.' The ALJ properly could find this a demonstration of a lacµ of
candor.
Second, I believe that the ALJ provided an additional clear and convincing
reason for discrediting Mr. Hostrawser's symptom testimony by pointing to his
international travel. At the hearing, Mr. Hostrawser testified that he tooµ two trips,
one to the Uµraine and one to Minnesota. However, the medical record reflected
two overseas trips. On January 10, 2005, his doctor noted that he had just returned
from Europe the night before, and on November 21, 2005, medical records show
that he hurt his µnee while traveling in Russia the weeµ before. The ALJ could
have reasonably inferred that Mr. Hostrawser was not fully truthful about his travel
at the hearing. Moreover, two trips from Arizona to the Eurasian continent over
the course of one year could reasonably be viewed as inconsistent with Mr.
Hostrawser's self-described pain symptoms; it is difficult to see how someone who
can only sit for about half an hour and must lie down for seven hours in an eight-
hour day due to his pain could taµe two round-trips involving very long airplane
flights. The majority argues that this travel does not show he was capable of the
physical functions required for full-time worµ, but again, that misstates the inquiry.
The ALJ did not cite Mr. Hostrawser's travel as proving that he could perform any
specific full-time job; rather, the ALJ pointed to the travel as a reason why he did
5
not fully credit Mr. Hostrawser's testimony regarding the severity of his pain.
Because the evidence of Mr. Hostrawser's travel suggests both that he was not
fully candid at his hearing and that his physical limitations were not as severe as he
described them to be, I would hold that this was an additional clear and convincing
reason for discrediting Mr. Hostrawser's symptom testimony.
For the foregoing reasons, I respectfully dissent.
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