Viles v. Commissioner of Social Security Administration , 401 F. App'x 230 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDA C. VILES, No. 09-35783
Plaintiff - Appellant, D.C. No. 3:08-cv-06093-MO
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted July 14, 2010
Portland, Oregon
Before: PREGERSON, WARDLAW and RAWLINSON, Circuit Judges.
Appellant Linda C. Viles challenges the district court’s judgment upholding
Appellee Commissioner of Social Security’s determination that Viles was not
disabled.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
As the parties recognized during oral argument, this was a close case, with
the record containing conflicting evidence regarding whether the claimant was
disabled. When there are conflicting views of the medical evidence and the
Administrative Law Judge selects one view over the other, our precedent mandates
affirmance. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(recognizing that “[t]he court will uphold the ALJ’s conclusion when the evidence
is susceptible to more than one rational interpretation”) (citations omitted).
AFFIRMED.
2
FILED
Viles v. Astrue, No. 09-35783, Pregerson, J., Dissenting. OCT 27 2010
MOLLY C. DWYER, CLERK
I dissent. Although this is a close case, I believe that, on balance, the COURT OF APPEALS
U.S.
evidence weighs in favor of the claimant, Linda Viles. Viles is a sixty-one year-
old woman whose life has been turned upside down by severe manic episodes
caused by bipolar affective disorder.
The ALJ erred in not considering the medical reports of two treating
physicians and one examining physician, all of whom found that Viles exhibited
symptoms while on medication. We have previously held that “the opinion of a
treating physician is generally entitled to the greatest weight.” Tonapetyan v.
Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). The Social Security Regulations
provide that “[t]reatment [must] clearly [be] expected to restore capacity to engage
in any [substantial gainful activity].” SSR 82-59(3), 1975-1982 Soc .Sec. Rep.
Serv. 793, 1982 WL 31384 (S.S.A.). The three physicians’ medical reports
constitute substantial evidence that Viles’s treatment – taking Lithium – does not
fully restore her capacity to engage in a normal life, including work.
Further, record evidence suggests that when Viles either stopped taking her
medication or overdosed, she did so because of her disorder. ER 158-160. In
addition, the ALJ’s Residual Functional Capacity report did not account for all of
Viles’s limitations. This error was not harmless because the ALJ based his finding
that Viles was not disabled at least in part on the Residual Functional Capacity
report. Finally, the ALJ erred in discrediting Viles’s testimony without offering
any “clear and convincing” reasons for doing so. See Swenson v. Sullivan, 876
F.2d 683, 687 (9th Cir. 1989). The ALJ based his reasoning on the general finding
that Viles “does okay” while on medication, which the record evidence shows is
not the case. For the above reasons, I cannot join the majority’s decision.