Tony Crawford v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY ALLEN CRAWFORD, No. 17-35796
Plaintiff-Appellant, No. 6:16-CV-748
v. MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted December 17, 2018**
Before: GOODWIN, FARRIS, and LEAVY, Circuit Judges.
Tony Allen Crawford appeals the district court’s judgement affirming the
Commissioner of Social Security’s denial of Crawford’s application for disability
insurance benefits under Title XVI of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v.
*
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).
Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we reverse and remand for further
proceedings.
Substantial evidence supports the ALJ’s finding that Crawford has past
relevant work as a construction laborer, meaning that he did not meet the criteria
for disability under Medical-Vocational Guidelines Rule 203.10. While it is not
clear from the record whether Crawford worked as a construction laborer for three
months or sixth months, either duration meets the requirement for learning this
occupation under the Dictionary of Occupational Titles (“DOT”). See DOT App.
B; Id. at 869.687-026, 1991 WL 687635. Crawford has not shown that he was
denied the opportunity to respond to the finding that he had past relevant work
experience. See Holohan v. Massanari, 246 F.3d 1195, 1209 (9th Cir. 2001).
Crawford’s work experience also does not fall under the agency’s regulatory
exception for claimants who have worked only “off-and-on” during the pertinent
fifteen-year period, excluding these jobs from qualifying as past relevant work
experience. See DOT App. B. While the record shows periods of sporadic work
activity, it does not establish that Crawford “can hold a job for only a short period
of time,” as his work as a nightclub bouncer for several years refutes this
proposition. See Gatliff v. Comm’r of Soc. Sec. Admin., 172 F.3d 690, 694 (9th Cir.
1999).
The ALJ failed to provide specific and legitimate reasons for rejecting the
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opinion of examining psychologist Dr. Alvord. For instance, while the ALJ
reasoned that, although Dr. Alvord attributed Crawford’s anxiety to childhood
trauma, Crawford’s mental status was fairly normal and his memory was intact, the
ALJ did not explain the relationship between this trauma-induced anxiety and the
expected effect on memory or IQ. Because the ALJ “must set forth his own
interpretations and explain why they, rather than the doctors’, are correct,” the
ALJ’s omission of this explanation means that this reason is not specific and
legitimate. See Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299
(9th Cir. 1999) (citation and internal quotation marks omitted). The ALJ similarly
failed to elucidate how Crawford’s treatment history and daily activities fail to
support Dr. Alvord’s opinion. See id.Several of the ALJ’s reasons for discounting Dr. Alvord’s opinion also lack
substantial evidentiary support. See Trevizo v. Berryhill, 871 F.3d 664, 675 (9th
Cir. 2017). For example, the record does not substantiate the ALJ’s reasoning that
nothing in Crawford’s vocational history supports Dr. Alvord’s opinion, as
Crawford’s earning records demonstrate that he has not worked since 2005.
Similarly, the pyschodiagnistic test results that Dr. Alvord obtained contradict the
ALJ’s assertion that nothing in Dr. Alvord’s examination and testing results
supports his opinion about Crawford’s limitations.
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The ALJ cited several clear and convincing reasons for discounting
Crawford’s testimony as to his symptoms and limitations, including the lack of
supporting medical evidence, conservative treatment, reported activities, and
inconsistencies in Crawford’s statements. See Trevizo, 871 F.3d at 678; Molina v.
Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Tommasetti v. Astrue, 533 F.3d
1035, 1039-40 (9th Cir. 2008). Crawford’s objections to the ALJ’s reliance on his
inconsistent statements and lack of supporting medical evidence amount to
advocating for alternatives to the ALJ’s rational interpretation of the record and
therefore do not demonstrate error. See Revels v. Berryhill, 874 F.3d 648, 654 (9th
Cir. 2017). While the ALJ erred by citing Crawford’s criminal convictions to
discount his testimony, the error was harmless because the ALJ provided other
clear and convincing reasons. See Carmickle v. Comm’r, Soc. Sec. Admin., 533
F.3d 1155, 1162 (9th Cir. 2008).
The ALJ committed reversible error by failing to proffer specific and
legitimate reasons for rejecting Dr. Alvord’s opinion. Because the ALJ did not err
in discounting Crawford’s testimony, it is not clear from the record that crediting
Dr. Alvord’s opinion would require the ALJ to find Crawford disabled. See
Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Therefore, we remand for
further proceedings so that the ALJ can reconsider Dr. Alvord’s opinion and either
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credit the opinion or provide specific and legitimate 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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