Heather Gilliland v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HEATHER L. GILLILAND, No. 17-17428
Plaintiff-Appellant, D.C. No. 2:16-cv-01978-GMS
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding
Submitted September 10, 2020**
Before: LEAVY, CLIFTON, and BYBEE, Circuit Judges.
Heather L. Gilliland appeals the district court’s judgment affirming the
Commissioner of Social Security’s decision denying her application for disability
insurance benefits under Title II 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.
When assessing the limitations from Gilliland’s fibromyalgia, the
Administrative Law Judge (ALJ) erred by discounting the opinion of treating
rheumatologist Dr. Mona Amin without considering Dr. Amin’s treating
relationship or specialization. See Revels v. Berryhill, 874 F.3d 648, 664 (9th Cir.
2017) (“[A] rheumatologist’s specialized knowledge is particularly important with
respect to . . . fibromyalgia.”); Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir.
2017) (ALJ’s failure to consider the requisite factors “constitutes reversible legal
error”); 20 C.F.R. § 404.1527(c)(2), (5) (generally, a treating physician’s opinion is
entitled to greater weight than an opinion from a non-treating source, and a
specialist’s opinion is entitled to greater weight than an opinion from a non-
specialist).
The ALJ also erred by discounting Dr. Amin’s opinion as unsupported by
objective findings and apparently based on Gilliland’s subjective complaints. See
Revels, 874 F.3d at 656-57, 663 (because fibromyalgia is marked by normal
objective findings and diagnosed based on the patient’s subjective complaints, ALJ
erred by discounting treating physician’s opinion as unsupported by objective
findings). The ALJ likewise erred by accepting the opinion of a nonexamining
medical advisor as supported by normal objective findings. See id.
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 The ALJ also erred by discounting Dr. Amin’s opinion as unsupported by
Gilliland’s routine and conservative treatment, where he pointed to no evidence
that Gilliland’s treatment, which included several pain medications and trigger
point injections, was “conservative.” See id. at 667 (ALJ’s finding that a series of
medications and epidural steroid injections were conservative treatment for
fibromyalgia was unsupported). Finally, the ALJ erred by discounting Dr. Amin’s
opinion as inconsistent with Gilliland’s activities of daily living, where the record
established that Gilliland performed these activities with frequent breaks. See id.
at 664 (claimant’s ability to perform some household tasks with breaks was not
inconsistent with doctor’s opinion that she needed significant breaks); see also
Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (a plaintiff’s ability to
carry on “certain daily activities” does not detract from credibility).
As to limitations resulting from Gilliland’s mental health impairments, the
ALJ provided germane reasons to discount the opinion of licensed professional
counselor Nicole Balles as unsupported by and inconsistent with the record. See
Revels, 874 F.3d at 655 (setting out standard). The ALJ reasonably incorporated
the opinion of consulting psychologist Dr. Kenneth Littlefield into the residual
functional capacity by limiting Gilliland to occasional interaction with coworkers
and supervisors. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir.
2008) (no error where ALJ translated assessed impairments into concrete work
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restrictions).
The ALJ provided clear and convincing reasons to discount Gilliland’s
symptom testimony based on the reason she stopped working and her attempts to
find employment at a higher exertional level than her past work. See Bruton v.
Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (ALJ properly discounted testimony
because claimant stopped working because he was laid off, not because he was
injured); Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (ALJ properly
considered unsuccessful attempts to find employment); see also Molina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012) (where the ALJ has provided a rational
interpretation of the evidence, this court must uphold the ALJ’s conclusion). Any
error in the ALJ’s remaining reasons was harmless. See Molina, 674 F.3d at 1115
(where ALJ provided at least one valid reason to discount testimony, error in
remaining reasons is harmless).
We reverse and remand to the district court with instructions to remand to
the agency for further proceedings. See Treichler v. Comm’r, Soc. Sec. Admin.,
775 F.3d 1090, 1099 (9th Cir. 2014).
REVERSED and REMANDED.
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