Cheryl Alo v. Nancy Berryhill ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL ALO, No. 17-35554
Plaintiff-Appellant, No. 1:16-cv-00180-BR
v. MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted March 27, 2019**
Before: FARRIS, O’SCANNLAIN, and TROTT, Circuit Judges.
Cheryl Lynn Alo appeals the district court’s affirmance of the Commissioner
of Social Security’s denial of her application for disability insurance benefits and
supplemental security income under Titles II and XVI of the Social Security Act.
We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review
*
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).
de novo, Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we reverse and
remand for further proceedings.
The ALJ’s decision lacks substantial evidentiary support in light of
physician assistant (“PA”) Tuttle’s May 2014 clarifying opinion, which the
Appeals Council reviewed and is now part of the record on review. See Brewes v.
Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1162-63 (9th Cir. 2012). The
Commissioner conceded that the ALJ’s failure to comment on the PA’s initial
statement was error, citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).
According to the PA’s clarified opinion, Alo needs to elevate her legs every two
hours for twenty minutes at a time. We reject the Commissioner’s argument that
the ALJ’s Residual Functional Capacity (“RFC”) provision for leg elevation for
only ten to fifteen minutes every two hours and thirty to sixty minutes at her lunch
break adequately accounted for PA Tuttle’s May 2014 opinion. The time allotted
by the RFC at each interval is shorter than the twenty minutes every two hours
specified by the PA. Thus, the RFC does not adequately account for PA Tuttle’s
opinion. What is missing from this record is an answer from a vocational expert as
to whether an individual resting for twenty minutes every two hours could sustain
competitive employment.
The ALJ cited specific, clear, and convincing reasons for discounting Alo’s
testimony, including inconsistencies in Alo’s testimony, inconsistencies between
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Alo’s testimony and daily activities, and a lack of supporting medical evidence.
See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Bray v. Comm’r Soc.
Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). While Alo advocates for a
different interpretation of the medical evidence, she has not demonstrated that the
ALJ’s interpretation was not reasonable. Because the ALJ provided a rational
interpretation of the evidence, Alo has not identified grounds to overcome the
ALJ’s determination. See Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Alo’s contention that the ALJ erred in relying upon her daily activities to
discount her testimony lacks merit. While Alo cites Trevizo v. Berryhill, 871 F.3d
664, 676 (9th Cir. 2017), in support of her argument, Trevizo is distinguishable
from the case at hand. The extent of Trevizo’s daily childcare responsibilities was
not clear from the record, while the record here contains more details concerning
Alo’s regular childcare tasks. For instance, Alo testified she shares tasks such as
cooking, as well as dressing and bathing her children with her husband, and she
drives her older child to school four days a week. Alo reported she also reads
stories, does puzzles, and plays board games with her children. Thus, it was
reasonable for the ALJ to discount Alo’s testimony that she was physically unable
to work at any job as inconsistent with these activities.
The ALJ’s reasoning that Alo “has two children under the age of five, both
of whom were born after the alleged onset date,” and that it is “unlikely that the
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claimant would have undertaken the burden of childbirth and childrearing in the
context of being as functionally limited as she claims to be” does not constitute a
clear and convincing reason supported by substantial evidence for rejecting her
testimony. The record does not elucidate the circumstances surrounding Alo’s
childbirths, and as a result, this reasoning lacks substantial evidentiary support.
Even though the ALJ erroneously relied upon Alo’s decision to bear children, the
ALJ cited other clear and convincing reasons for discounting Alo’s testimony, and
so this error was harmless. See Molina, 674 F.3d at 1115.
The ALJ’s error in failing to provide germane reasons for assigning little
weight to the lay witness testimony from Alo’s aunt, Ms. Hopkins, was harmless.
Although the ALJ discounted Ms. Hopkins’ statements due to inconsistencies
between this testimony and Alo’s reported activities, the testimony the ALJ cited
was not actually inconsistent with Alo’s reports. In addition, the ALJ erred by
relying upon that Ms. Hopkins “was not in a position to identify whether such
restrictions were medically necessary or had simply been adopted by the claimant
as a matter of preference.” Lay witnesses are not required to indicate whether their
observations of the claimant’s behavior stem from medically necessary limitations,
as this would run counter to the purpose of considering lay testimony. See Bruce v.
Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). Nevertheless, because the ALJ
provided clear and convincing reasons for discounting Alo’s testimony, and “the
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ALJ’s reasons for rejecting [Alo’s] testimony apply with equal force to the lay
testimony,” the error was harmless. See Molina, 674 F.3d at 1122.
We remand for further proceedings so that the ALJ can reconsider PA
Tuttle’s opinion and either credit the opinion or provide germane reasons for
discounting it, reformulate Crawford’s residual functional capacity if necessary,
conduct a new Step Five analysis if necessary, and engage in further proceedings
consistent with this decision that the ALJ deems appropriate.
REVERSED AND REMANDED.
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