Gregory Givens v. Kilolo Kijakazi ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY LEE GIVENS, No. 19-35671
Plaintiff-Appellant, D.C. No. 2:18-cv-00581-JR
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, Chief District Judge, Presiding
Submitted May 9, 2022**
Pasadena, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and ROBRENO,***
District Judge.
Gregory Lee Givens appeals the district court’s affirmance of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
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Commissioner of Social Security’s denial of his application for disability insurance
benefits under Title II of the Social Security Act. We reverse and remand.
Givens’s claim for benefits was first denied by the ALJ in 2012. The district
court remanded the case to the ALJ for further proceedings in 2015 after the
Commissioner conceded that the ALJ erred in evaluating evidence related to
Givens’s complex regional pain syndrome (“CRPS”), in evaluating plaintiff’s
testimony, and in weighing the medical opinion of treating neurologist Dr. Rodrigo
Lim. On remand, a different ALJ concluded that CRPS was not a “medically
determinable” impairment for Givens, and she ignored some of the limitations Dr.
Lim attributed to CRPS.
The ALJ’s determination that CRPS was not medically determinable is not
supported by substantial evidence because it relied on a mischaracterization of the
testimony the medical expert provided in 2012 and ignored substantial record
evidence of the clinical basis for the diagnosis. The ALJ also failed to consult the
guidance of Social Security Ruling (SSR) 03-2p, “Titles II and XVI: Evaluating
Cases Involving Reflex Sympathetic Dystrophy Syndrome/Complex Regional Pain
Syndrome.” SSR 03-2p, 2003 WL 22399117 (Oct. 20, 2003). “Although Social
Security Rulings do not have the same force and effect as the statute or regulations,
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they are binding on all components of the Social Security Administration . . . and
are to be relied upon as precedents in adjudicating cases.” Orn v. Astrue, 495 F.3d
625, 636 (9th Cir. 2007) (alteration in original) (citation omitted).
The ALJ stated that she had nonetheless “considered all of the claimant’s
established symptoms and resulting functional limitations—regardless of the
diagnostic label attached to them—in assessing the maximum residual functional
capacity.” But her decision does not mention the impairments to Givens’s left
hand and arm, which Dr. Lim expressly noted.
In assessing Dr. Lim’s opinions, the ALJ focused on Dr. Lim’s brief later
opinions from 2016 and 2017 and rejected their apparent view that Givens’s
condition was worsening. The ALJ did not address in any meaningful way the
notes and opinions from 2011 and 2012 in which Dr. Lim described more fully
Givens’s CRPS diagnosis and its attendant limitations. She thus did not provide
specific and legitimate reasons for tacitly rejecting those parts of his opinions. See
Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007) (“Of course, an
ALJ cannot avoid [the requirement to give reasons for rejecting a medical opinion]
simply by not mentioning the treating physician’s opinion and making findings
contrary to it.”).
Page 4 of 4
The ALJ’s errors were not harmless because they were not “inconsequential
to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035,
1038 (9th Cir. 2008) (citation omitted). Because Givens has not requested a
remand for an award of benefits, we do not consider whether such relief would be
appropriate at this stage and instead remand for further proceedings. See Brown-
Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (“A remand for an immediate
award of benefits is appropriate, however, only in ‘rare circumstances.’” (quoting
Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014))).
On remand, the ALJ is directed to evaluate Givens’s CRPS with the guidance of
SSR 03-2p and to reassess Givens’s residual functional capacity, including all of
his relevant limitations.
REVERSED and REMANDED.