Lorraine Peterson v. Carolyn Colvin , 668 F. App'x 278 ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORRAINE DEE PETERSON, No. 15-35419
Plaintiff-Appellant, D.C. No. 3:14-cv-00084-RRB
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted August 3, 2016
Anchorage, Alaska
Before: FISHER, PAEZ and HURWITZ, Circuit Judges.
Lorraine Peterson appeals the district court’s judgment affirming the ALJ’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 we reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The ALJ improperly discounted the opinion of Peterson’s treating physician,
Dr. Teresa Bormann. “A treating physician’s opinion is entitled to ‘substantial
weight.’” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.
2009) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). “When
evidence in the record contradicts the opinion of a treating physician, the ALJ must
present ‘specific and legitimate reasons’ for discounting the treating physician’s
opinion, supported by substantial evidence.” Id. (quoting Lester v. Chater, 81 F.3d
821, 830 (9th Cir. 1995)). Here, the ALJ stated Dr. Bormann’s opinion was “not
consistent with the objective medical evidence and the claimant’s activities,” but
failed to specifically identify any objective medical evidence or activities that
undermine Dr. Bormann’s opinion. The ALJ mentioned only another physician’s
recommendation that Peterson exercise, but that does not undermine Dr.
Bormann’s opinion, which, while endorsing some significant physical limitations,
never indicates Peterson should not exercise. The Commissioner’s attempt to
rehabilitate the ALJ’s conclusion on appeal by offering several post hoc rationales
is unavailing. We “review the ALJ’s decision based on the reasoning and factual
findings offered by the ALJ – not post hoc rationalizations that attempt to intuit
what the adjudicator may have been thinking.” Id. at 1225.
2
In certain circumstances, we may exercise our discretion to remand with
instructions to grant benefits. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th
Cir. 2015). This is such a case. The record in this case is fully developed. See id.
The government has not established that evidence in the record “‘casts into serious
doubt’ the claimant’s claim to be disabled.” Id. (quoting Burrell v. Colvin, 775
F.3d 1133, 1141 (9th Cir. 2014)). And, the testimony of the vocational expert
establishes that, crediting Dr. Bormann’s opinion, Peterson could not perform jobs
existing in significant numbers in the national economy. Because “the ALJ would
necessarily have to conclude” that Peterson is disabled, we exercise our discretion
to remand with instructions that the district court remand to the Commissioner for
payment of benefits. Id.
REVERSED AND REMANDED.
3