Jodi Pierce v. Carolyn W. Colvin , 565 F. App'x 621 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JODI C. PIERCE, No. 12-35788
Plaintiff - Appellant, D.C. No. 1:11-cv-00105-RFC
v.
MEMORANDUM*
CAROLYN W. COLVIN,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Senior District Judge, Presiding
Argued and Submitted February 3, 2014
Seattle, Washington
Before: FISHER, GOULD and CHRISTEN, Circuit Judges.
Jodi C. Pierce appeals the district court’s grant of summary judgment in
favor of the Commissioner of the Social Security Administration, upholding the
denial of her application for disability insurance benefits and supplemental security
income. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and
reverse and remand in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The ALJ articulated germane reasons for giving little weight to the
opinion of Pierce’s counselor, Timothy Dove. See Molina v. Astrue, 674 F.3d
1104, 1111 (9th Cir. 2012). The ALJ adopted the opinion of the medical expert
because she was the only acceptable medical source who reviewed Pierce’s entire
medical record. The ALJ permissibly rejected Dove’s opinion because it was
inconsistent with Dove’s treatment notes and care plan and because its extreme
characterization of Pierce’s limitations was not supported by the medical record.
See id. at 1112; Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir.
2010). Pierce’s inability to afford alternative mental health treatment does not
invalidate this conclusion.
2. The ALJ did not give sufficiently specific, clear and convincing
reasons for discrediting Pierce’s testimony regarding the number of days she is
debilitated by depression or a manic episode. See Robbins v. Soc. Sec. Admin., 466
F.3d 880, 883 (9th Cir. 2006). Her testimony that she is debilitated several days
per month would, if credited, establish that she is disabled. The ALJ apparently
rejected this testimony because it was not supported by the medical record, but an
ALJ may not disregard a claimant’s testimony on this basis when the testimony
concerns the severity of symptoms that her underlying impairment could
reasonably be expected to cause. See id. at 883-84. The other reasons the ALJ
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offered also were not sufficiently specific to Pierce’s testimony regarding the
severity of this symptom. See Vasquez v. Astrue, 572 F.3d 586, 591-92 (9th Cir.
2009). We decline to apply the “credit-as-true” rule in this case and reverse and
remand with instructions to remand to the agency for further determinations on an
open record regarding how often Pierce is debilitated by depression or a manic
episode. See Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). The ALJ
may take more evidence if it would be useful, but is not required to do so.
3. The remainder of the ALJ’s adverse credibility determination is
affirmed.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
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