April West v. Carolyn Colvin , 609 F. App'x 463 ( 2015 )


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  •                                                                              FILED
    NOT FOR PUBLICATION                            JUL 06 2015
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    APRIL DENISE WEST,                                   No. 13-15741
    Plaintiff - Appellant,              D.C. No. 2:12-cv-01542-NVW
    v.
    MEMORANDUM*
    CAROLYN W. COLVIN, Commissioner
    of Social Security,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the District of Arizona
    Neil V. Wake, District Judge, Presiding
    Argued and Submitted June 10, 2015
    San Francisco, California
    Before: HAWKINS and WATFORD, Circuit Judges and RAKOFF,** Senior
    District Judge.
    April West (“West”) appeals the district court’s order upholding the final
    decision    of    the    Commissioner     of   the   Social   Security   Administration
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District
    Court for the Southern District of New York, sitting by designation.
    (“Commissioner”), which denied her disability insurance benefits. West contends the
    administrative law judge (“ALJ”) improperly discounted the weight of an examining
    physician’s opinion and did not give sufficient reasons to reject West’s testimony
    regarding her symptoms and limitations. We affirm in part and reverse in part.
    We agree with West that the ALJ failed to give “specific and legitimate”
    reasons supported by substantial evidence for disregarding state agency examining
    physician Dr. Drinkwater’s opinion in favor of the opinion of non-examining agency
    physician Dr. Farrell. See Moore v. Comm’r of Soc. Sec., 
    278 F.3d 920
    , 924 (9th Cir.
    2002). The ALJ’s decision to give Dr. Drinkwater’s opinion little weight appears
    based primarily on x-rays taken of West’s spine in June 2008, which Dr. Farrell
    reviewed in October 2008. However, Dr. Drinkwater’s opinion appears to have been
    based on a MRI of West conducted in February 2009, which he described as “very
    abnormal.” These test results were not even available to Dr. Farrell in October, and
    the ALJ’s opinion appears to either conflate the two test results or ignore the MRI
    entirely. We conclude that the ALJ’s assessment of Dr. Drinkwater’s opinion is not
    supported by substantial evidence. See Ryan v. Comm’r of Soc. Sec., 
    528 F.3d 1194
    ,
    1202 (9th Cir. 2008) (a non-examining doctor’s assessment by itself is not substantial
    evidence).
    2
    Contrary to West’s assertion, however, the ALJ did provide “specific, clear and
    convincing reasons” for disregarding her subjective report of her limitations.
    Tommasetti v. Astrue, 
    533 F.3d 1035
    , 1039 (9th Cir. 2008). The ALJ offered
    numerous specific reasons for finding West not fully credible regarding the extent and
    severity of her limitations, including a plethora of inconsistent statements West made
    to various doctors, her admission in testimony that she did not give Dr. Barry a full
    picture of her history in order to be a good candidate for bariatric surgery, her failure
    to follow treatment recommendations, and her failure to put forth a good effort at
    some examinations. See 
    id. at 1039–40
    (discussing the various factors an ALJ may
    consider in weighing a claimant’s credibility).
    Because we affirm in part and reverse in part, a remand for further proceedings
    is warranted. Cf. Treichler v. Comm’r of Soc. Sec., 
    775 F.3d 1090
    , 1106 (9th Cir.
    2014). We remand with instructions to the district court to remand this case to the
    Commissioner for further proceedings.
    AFFIRMED in part, REVERSED in part and REMANDED. Each party
    shall bear their own costs.
    3
    

Document Info

Docket Number: 13-15741

Citation Numbers: 609 F. App'x 463

Filed Date: 7/6/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023