Terry Lanning v. Andrew Saul ( 2020 )


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  •                            NOT FOR PUBLICATION                            FILED
    UNITED STATES COURT OF APPEALS                         DEC 28 2020
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    TERRY LANNING,                                  No.    19-35991
    Plaintiff-Appellant,            D.C. No. 4:18-cv-05134-SAB
    v.
    MEMORANDUM*
    ANDREW M. SAUL, Commissioner of
    Social Security,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Eastern District of Washington
    Stanley Allen Bastian, Chief District Judge, Presiding
    Argued and Submitted December 11, 2020
    Seattle, Washington
    Before: BERZON and MILLER, Circuit Judges, and GLEASON,** District Judge.
    Terry Lanning appeals from the district court’s order affirming an
    administrative law judge’s (ALJ’s) denial of disability insurance benefits and
    supplemental security income under Titles II and XVI of the Social Security Act.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Sharon L. Gleason, United States District Judge for
    the District of Alaska, sitting by designation.
    We have jurisdiction under 
    42 U.S.C. § 405
    (g) and 
    28 U.S.C. § 1291
    . We reverse
    and remand with instructions to remand to the Social Security Administration.
    1.     The ALJ prejudicially erred by assigning “[l]ittle weight” to the
    opinions of Dr. Woolever and Dr. Henderson and by failing to consider the opinion
    of Dr. Palasi. An ALJ “must consider all medical opinion evidence.” Tommasetti v.
    Astrue, 
    533 F.3d 1035
    , 1041 (9th Cir. 2008) (citing 
    20 C.F.R. § 404.1527
    (b)). A
    treating physician’s opinion holds “substantial weight.” Ford v. Saul, 
    950 F.3d 1141
    , 1154 (9th Cir. 2020) (quoting Embrey v. Bowen, 
    849 F.2d 418
    , 422 (9th Cir.
    1988)). Even if contradicted, it may be discounted only for “specific and legitimate
    reasons” supported by substantial evidence. 
    Id.
     (quoting Lester v. Chater, 
    81 F.3d 821
    , 830 (9th Cir. 1995)). Nevertheless, reversal is not warranted if the ALJ’s error
    was harmless, “meaning it was ‘inconsequential to the ultimate nondisability
    determination.’” 
    Id.
     (quoting Tommasetti, 
    533 F.3d at 1038
    ).
    Dr. Woolever, Lanning’s primary-care physician, reported that Lanning was
    severely limited by coronary artery disease, chronic obstructive pulmonary disease
    (COPD), and hip pain and was therefore unable to perform even sedentary work
    for 99 months. The ALJ assigned little weight to Dr. Woolever’s opinion “because
    it was done at a time when [Lanning] was limited by heart problems, and the
    record shows these problems resolved after stent placement.” But Dr. Woolever’s
    opinion was also based on Lanning’s COPD and hip pain. In fact, Dr. Woolever
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    assigned those impairments a severity rating of five—the maximum—indicating an
    “[i]nability to perform one or more basic work-related activities,” including sitting,
    standing, and walking. By contrast, Dr. Woolever assigned a severity rating of four
    to Lanning’s heart disease. Even if Lanning’s heart treatment allowed him to
    perform all of the work activities previously limited by his heart disease, Dr.
    Woolever’s evaluation shows that Lanning’s hip pain would, at a minimum,
    prevent him from sitting and standing in a work environment. Given the substantial
    weight that must be accorded to the opinion of a treating physician, the ALJ’s
    failure to adequately consider Dr. Woolever’s opinion was not harmless.
    Dr. Henderson, Lanning’s treating orthopedic surgeon, reported that Lanning
    was severely limited by his total hip replacement and was therefore unable to
    perform even sedentary work for three months. The ALJ assigned little weight to
    Dr. Henderson’s opinion “because it was only relevant for a short period of time
    right after [Lanning’s] hip surgery.” But even if Dr. Henderson’s report could not
    by itself justify a finding of disability, that does not mean that it was not probative
    evidence that Lanning was disabled for at least three months. The ALJ’s
    discounting of this evidence was not harmless. Dr. Henderson noted at a pre-
    operation appointment five months earlier that Lanning reported “increasing pain,
    particularly over the past several years,” and that he had an abnormal gait, “definite
    pain” with movement, and “difficulty performing activities of daily living.” A year
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    before that, Lanning presented to Dr. Henderson with hip pain and antalgic gait,
    and Dr. Henderson diagnosed him with progressive degenerative change of his
    right hip. Taken together, Dr. Henderson’s reports suggest a period of greater than
    12 months, before and after surgery, in which Lanning was disabled.
    The government argues that Lanning “frequently had a normal gait on
    examination,” but it points to only one such exam since Dr. Henderson’s first
    diagnosis. And at that exam, which was conducted by Dr. Woolever, the doctor
    also noted chronic pain, congenital hip dysplasia, hip bursitis, and hip pain as
    problems. In any event, “[o]ccasional symptom-free periods . . . are not
    inconsistent with disability.” Lester, 81 F.3d at 833. The government also argues
    that discounting Dr. Henderson’s opinion was harmless because Lanning
    “routinely reported that he was able to do his activities of daily living.” But the
    ALJ did not find that Lanning’s activities occupied a substantial part of his day, cf.
    Vertigan v. Halter, 
    260 F.3d 1044
    , 1050 (9th Cir. 2001), or that they were readily
    transferable to a work environment, cf. Diedrich v. Berryhill, 
    874 F.3d 634
    , 643
    (9th Cir. 2017).
    Dr. Palasi, a non-examining State physician, rendered two opinions, one in
    2015 based on her review of Dr. Woolever’s opinion and Lanning’s medical
    records, and the other in 2017 based on her review of both Dr. Woolever’s and Dr.
    Henderson’s opinions and Lanning’s medical records. Lanning’s attorney relied on
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    Dr. Palasi’s opinions at the administrative hearing, but the ALJ never mentioned
    them in his decision. That was error, see Vasquez v. Astrue, 
    572 F.3d 586
    , 596 (9th
    Cir. 2009), and it was not harmless. In her 2015 opinion, Dr. Palasi agreed with Dr.
    Woolever’s conclusion that Lanning had a less-than-sedentary residual functional
    capacity for 99 months due to coronary artery disease, COPD, and obesity. In her
    2017 opinion, Dr. Palasi again agreed that Lanning was capable of less than
    sedentary work due to hip osteochondrosis, coronary artery disease, and COPD.
    But unlike Dr. Henderson, Dr. Palasi identified Lanning’s impairment as expected
    to last 12 months, which would meet the statutory duration requirement. 
    42 U.S.C. § 423
    (d)(1)(A) (Title II); 
    id.
     § 1382c(a)(3)(A) (Title XVI).
    2.     When prejudicial error has occurred, we ordinarily remand for further
    proceedings, Dominguez v. Colvin, 
    808 F.3d 403
    , 407 (9th Cir. 2015), and we do
    so here. On remand, the ALJ should consider the opinions of Dr. Palasi and re-
    evaluate whether Dr. Woolever’s and Dr. Henderson’s opinions should be assigned
    greater weight. See Marsh v. Colvin, 
    792 F.3d 1170
    , 1173 (9th Cir. 2015). The ALJ
    should also reconsider whether Lanning’s testimony and his wife’s function reports
    should be credited in light of this re-examination of the medical opinion evidence.
    REVERSED AND REMANDED.
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