Linda Weirick v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDA WEIRICK, No. 19-15029
Plaintiff-Appellant, D.C. No. 2:17-cv-03817-JAT
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted August 10, 2020
San Francisco, California
Before: CHRISTEN and OWENS, Circuit Judges, and BATAILLON,** Senior
District Judge.
Linda Weirick appeals the decision of the district court affirming the
Commissioner of Social Security’s denial of her application for disability benefits.
We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). As the parties
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joseph F. Bataillon, Senior United States Senior
District Judge for the District of Nebraska, sitting by designation.
are familiar with the facts, we do not recount them at length here. We reverse and
remand for an award of benefits.
Linda Weirick alleges disability by reason of constant back and pelvic pain
and urinary incontinence. After a hearing, the ALJ found Weirick had severe
impairments of genitourinary disorder and spine disorder and could not return to her
former job but had the residual functional capacity (RFC) to perform a range of light
work that exists in the national economy. In making that finding, the ALJ credited
the testimony of a consulting examiner over that of Weirick’s treating physicians
and discounted Weirick’s subjective complaints. Weirick appealed and the district
court affirmed the agency decision.
We review the district court’s order de novo, and, like the district court, we
review the Commissioner’s final decision for substantial evidence. See Dale v.
Colvin, 823 F.3d 941, 943 (9th Cir. 2016). “Substantial evidence means more than
a mere scintilla, but less than a preponderance. It means such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Revels v.
Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
1. The ALJ failed to properly credit the opinions of Weirick’s treating
physicians. The law is clear in this circuit that the ALJ must defer to a treating
doctor’s opinion, even if controverted by another doctor, unless the ALJ makes
findings setting forth specific, legitimate reasons based on substantial evidence in
2 19-15029
the record for rejecting the opinions. See Turner v. Comm’r of Soc. Sec., 613 F.3d
1217, 1222 (9th Cir. 2010). A treating physician’s opinion that is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence” in the record is to be given
controlling weight. Garrison v. Colvin, 759 F.3d 995, 1012 n.10 (9th Cir. 2014).
Here, the ALJ discredited the treating physicians’ opinions in part because
they were too extreme in light of the objective medical evidence and the consulting
examiner’s opinion. The clinical signs and objective medical evidence in the record
fully support the treating physicians’ conclusions and substantiate Weirick’s
symptoms of severe back and pelvic pain, fatigue, and incontinence. The record
contains MRI imaging showing disc bulges, facet arthropathy, degenerative changes,
and nerve root compression; records of physical examinations involving palpable
tenderness, observations of antalgic gait and difficult mobility; and clinical records
of complications from failed pelvic mesh surgery, pelvic edema, radiating pain, and
co-morbid fibromyalgia. The opinion of the consulting examiner does not
effectively counter the treating physicians’ findings.
2. The ALJ erred in determining Weirick’s RFC. The ALJ found Weirick
would be off task for no more than 5% of a workday and did not include likely
absences as a limitation. In determining a claimant’s RFC, the ALJ “must consider
a claimant’s physical and mental abilities,” “as well as the total limiting effects
3 19-15029
caused by medically determinable impairments and the claimant’s subjective
experiences of pain.” Garrison, 759 F.3d at 1011.
Both of Weirick’s treating physicians stated she would be “off-task” for more
than 10% of the workday and would be absent more than six days per month. The
treating physicians’ opinions as to those limitations are consistent with objective
medical evidence and should have been credited by the ALJ. The vocational expert
testified that a person with those limitations would be precluded from competitive
employment.
3. The ALJ erred in rejecting Weirick’s subjective testimony about the
severity of her symptoms. The ALJ discounted Weirick’s testimony, finding that
her daily activities—grocery shopping, driving short distances, attending church,
preparing meals, visiting with family, reading books, watching television, feeding
pets, doing her own laundry, and caring for her grooming—were not consistent with
disabling pain and fatigue and also because Weirick achieved some level of relief
from medication.
“When an Administrative Law Judge (ALJ) determines that a claimant for
Social Security benefits is not malingering and has provided objective medical
evidence of an underlying impairment which might reasonably produce the pain or
other symptoms she alleges, the ALJ may reject the claimant’s testimony about the
severity of those symptoms only by providing specific, clear, and convincing reasons
4 19-15029
for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015). We
have “‘repeatedly asserted that the mere fact that a plaintiff has carried on certain
daily activities . . . does not in any way detract from her credibility as to her overall
disability.’” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v.
Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). “The ALJ must make ‘specific
findings relating to [the daily] activities’ and their transferability to a work setting
to conclude that a claimant’s daily activities warrant an adverse credibility
determination.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)).
Here, the ALJ did not find malingering and, as discussed above, the record
contains objective medical evidence of underlying impairments that reasonably
could be expected to produce Weirick’s pain and other symptoms. The ALJ did not
make specific findings on Weirick’s daily activities and transferability to a work
setting, and did not explain how Weirick’s activities were inconsistent with her
testimony that she suffers from near-constant pain, is incontinent, needs to visit the
bathroom often, and needs to lie down or nap several times a day. Also, there is
scant evidence that Weirick’s pain medications could achieve a degree of pain
control that would enable her to engage in sustained full-time work at a low level of
absenteeism and a high level of on-task behavior. Weirick regularly and consistently
sought treatment for complaints of disabling pain, in spite of her use of narcotic pain
medications. The ALJ also failed to consider the effects of narcotic pain medication
5 19-15029
on Weirick’s concentration and ability to focus.
4. We remand for the calculation and award of benefits. “The record has been
fully developed and further administrative proceedings would serve no useful
purpose.” Garrison, 759 F.3d at 1020. The ALJ “failed to provide legally sufficient
reasons for rejecting” the treating physicians’ opinions and the claimant’s testimony.
Id. The vocational expert’s testimony establishes that if the improperly discredited
opinions of the treating physicians were credited as true, there would be no jobs in
the national economy that she could perform and “the ALJ would be required to find
the claimant disabled on remand.” Id. Because we find that the record as a whole
does not create any “serious doubt as to whether the claimant is, in fact, disabled
within the meaning of the Social Security Act[,]” a remand for an award of benefits
is the appropriate remedy. Id. at 1021.
REVERSED and REMANDED with instructions to remand to the ALJ for
calculation and award of benefits.
6 19-15029