Kathy Talley v. Michael Astrue , 400 F. App'x 167 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KATHY S. TALLEY, No. 08-35827
Plaintiff - Appellant, D.C. No. 3:07-cv-06133-MO
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted October 7, 2010
Portland, Oregon
Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.
Kathy Talley appeals the district court order affirming the decision to deny
her disability benefits. We conclude that the ALJ did not give sufficient reasons for
disregarding or discrediting evidence from Talley’s treating therapist, Pam Jones;
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
from Dr. Barbara Perry, an examining psychologist; and from Talley herself. We
therefore reverse and remand for further proceedings before the ALJ.
The ALJ’s decision did not account for or give a reason for discounting the
testimony of Talley’s treating therapist, Pam Jones. Testimony from a treating
therapist qualifies as an “other source” under 20 C.F.R. § 404.1513(d). Such
testimony from an “other source” can only be discounted by providing specific
reasons, germane to the witness. Stout v. Comm’r of Soc. Sec., 454 F.3d 1050, 1053
(9th Cir. 2006); see SSR 06-03p at *3, *5. That error was not harmless because we
cannot conclude that “no reasonable ALJ, when fully crediting the testimony,
could have reached a different disability determination.” Stout, 454 F.3d at 1056.
The ALJ improperly discredited evidence from Dr. Barbara Perry, an
examining psychologist. The uncontradicted opinion of an examining doctor can
only be rejected for clear and convincing reasons. Widmark v. Barnhart, 454 F.3d
1063, 1066 (9th Cir. 2006). The ALJ’s proffered reasons were unconvincing
because they did not account for evidence that suggested an opposite result. See
Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). Moreover, the evidence
provided by Pam Jones, which was improperly disregarded, would, if credited,
contradict the ALJ’s offered reasons for discrediting the evidence of Dr. Perry and
generally support her conclusions.
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The ALJ did not provide sufficient reasons to discredit Talley’s testimony.
Where a claimant establishes that she suffers from impairments that might
reasonably be expected to cause some degree of her alleged symptoms, the ALJ
must present “specific, clear and convincing reasons” in order to reject her
subjective testimony about the extent of her symptoms. Smolen v. Chater, 80 F.3d
1273, 1281 (9th Cir. 1996). The ALJ’s proffered reasons were not convincing, and
were taken selectively from the record while ignoring evidence that suggested an
opposite result. See Gallant, 753 F.2d at 1456. Additionally, the improperly
disregarded evidence provided by Pam Jones, if credited, would support Talley’s
testimony and undermine several of the ALJ’s reasons for discrediting it.
REVERSED and REMANDED for further proceedings.
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