Erik Brancaccio v. Andrew Saul ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIK BRANCACCIO; WILLIAM No. 18-16007
BRANCACCIO,
D.C. No. 2:16-cv-02479-CMK
Plaintiffs-Appellants,
v. MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Craig Kellison, Magistrate Judge, Presiding
Argued and Submitted December 3, 2019
San Francisco, California
Before: THOMAS, Chief Judge, and W. FLETCHER and MILLER, Circuit
Judges.
William Brancaccio (Brancaccio) appeals from the district court’s judgment
affirming the administrative law judge’s denial of Social Security disability
benefits for his son, Erik Brancaccio, who is now deceased. We have jurisdiction
under 28 U.S.C. § 1291, and we reverse and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review the district court’s order de novo. Tommasetti v. Astrue, 533 F.3d
1035, 1038 (9th Cir. 2008). We will reverse “the denial of benefits only if the
[ALJ’s] decision ‘contains legal error or is not supported by substantial evidence.’”
Id. (quoting Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)); see also 42 U.S.C.
§ 405(g).
Brancaccio argues that the ALJ erred in determining that Erik Brancaccio’s
lumbar impairment did not meet the criteria for a listed impairment at step three,
that he did not have a severe mental impairment, and that a report from his
physical therapist was not a “medical opinion.” We reject those challenges.
We agree with Brancaccio, however, that the ALJ erred in failing to
“evaluate every medical opinion” received. 20 C.F.R. § 404.1527(c). The
Commissioner concedes that the migraine headache report from Dr. McAlpine, one
of Erik Brancaccio’s treating physicians, was a medical opinion. The ALJ may not
reject a treating physician’s medical opinion “unless clear and convincing reasons
for doing so exist and are set forth in proper detail.” Embrey v. Bowen, 849 F.2d
418, 422 (9th Cir. 1988); accord Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir.
1995). The ALJ did not mention Dr. McAlpine’s report, let alone provide clear and
convincing reasons for rejecting it.
Further, the ALJ’s conclusion that Erik Brancaccio had a “normal range of
motion” was not supported by substantial evidence. Tommasetti, 533 F.3d at 1038.
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Dr. Van Kirk’s physical exam found a “full range of motion” for the upper and
lower extremities, but “[s]light limitation” on the range of motion for the cervical
spine and “[m]oderate limitation” on the range of motion for the thoracolumbar
spine. Two other treating physicians also reported abnormal range of motion.
The Commissioner argues that the ALJ’s errors were harmless, but we
disagree because we are unable to say that the errors were “inconsequential to the
ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th
Cir. 2012) (citation omitted). The vocational expert testified that a hypothetical
individual who was “limited to simple, routine, repetitive tasks” and was required
to “take unscheduled breaks—at least two unscheduled breaks per day beyond
those customarily allowed in the business place”—would not be able to perform
“any work in the national economy.” In light of that testimony, the evidence the
ALJ apparently overlooked—including, in particular, Dr. McAlpine’s conclusion
that Erik Brancaccio’s migraine headaches “interfere[d] with [his] ability to
work”—might have affected the ultimate disability determination.
Brancaccio urges us to remand for an award of benefits, but even if the
overlooked evidence were credited as true, the ALJ “would [not] be required to
find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020
(9th Cir. 2014). Instead, the ALJ will need to determine whether Dr. McAlpine’s
report and the medical opinions regarding Erik Brancaccio’s decreased range of
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motion show that he was unable to work without limitations, and, if so, determine
whether those limitations precluded work in the national economy. We reverse and
remand to the district court with instructions to remand to the agency for further
proceedings.
REVERSED and REMANDED.
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