Theresa Speck v. Kilolo Kijakazi ( 2023 )

FILED
NOT FOR PUBLICATION JUN 23 2023
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERESA J. SPECK, No. 22-35835
Plaintiff-Appellant, D.C. No. 1:21-cv-00036-KLD
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Kathleen Louise DeSoto, Magistrate Judge, Presiding
Argued and Submitted June 13, 2023
Portland, Oregon
Before: RAWLINSON and SUNG, Circuit Judges, and RAKOFF,** District
Judge.
Theresa Speck (Speck) appeals the district court’s grant of summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
judgment in favor of the Commissioner of Social Security (Commissioner). Speck
contends that the Administrative Law Judge (ALJ) erred in denying her
applications for Social Security benefits. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we vacate and remand to the district court for remand of
Speck’s case to the agency for further proceedings.
“We review a district court’s judgment de novo and set aside a denial of
benefits only if it is not supported by substantial evidence or is based on legal
error. . . .” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (citation and
internal quotation marks omitted).
1. The ALJ did not provide “an explanation supported by substantial
evidence” for rejecting the opinion of Speck’s treating physician. Woods v.
Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Despite the decade of treatment
records provided by Speck’s physician, the ALJ relied on two treatment notes to
support his determination that the physician’s “examinations [were] not consistent
with his opinion.” However, other treatment notes reflected functional limitations
not considered by the ALJ, such as the treating physician’s observation that “[p]ain
remain[ed] a central issue in [Speck’s] life,” that Speck was “[f]unctionally . . .
quite limited” due to her pain, and that Speck’s pain was “widely distributed” and
she “no longer [went] shopping or participat[ed] with her children’s activities.”
2
See Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014) (concluding that
treatment notes did not provide substantial evidence for rejecting physician’s
opinion because the notes “must be read in context of the overall diagnostic picture
the provider draws”) (citations and internal quotation marks omitted).
Additionally, the ALJ did not discuss the treating physician’s diagnoses and
clinical support for his opinion. The treating physician opined that Speck had
“pain in her left lower extremity that [was] a consequence of nerve root irritation in
her back. This [was] a conclusion supported by the neurosurgeon, as well as [the
treating physician].” The ALJ did not address whether the treating physician’s
opinion was consistent with the diagnoses and assessments from other medical
providers, including a physician who opined that Speck’s X-rays “showed
degenerative arthritis of the . . . joints” and “a huge overlay of other pain from her
back and possible fibromyalgia.” See Woods, 32 F.4th at 792 (stating that “[t]he
agency must articulate how persuasive it finds all of the medical opinions from
each doctor or other source, and explain how it considered the supportability and
consistency factors in reaching these findings”) (citation, alterations, and internal
quotation marks omitted).
2. The ALJ did not provide “specific, clear, and convincing reasons” for
rejecting Speck’s symptom testimony. Ahearn v. Saul, 988 F.3d 1111, 1116 (9th
3
Cir. 2021) (citation omitted).1 The ALJ did not specify which aspects of Speck’s
testimony were not credible, and did not cite to objective medical opinions that
were inconsistent with or contradicted Speck’s testimony. See id.
3. The ALJ erred in not “consider[ing] limitations and restrictions imposed
by all of [Speck’s] impairments, even those that [were] not severe,” in assessing
Speck’s residual functional capacity. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th
Cir. 2017) (citation and internal quotation marks omitted). Although the ALJ
concluded that Speck’s only severe impairment was inflammatory arthritis, Speck
was also diagnosed with chronic back pain, degenerative disc disease, “lumbar
radiculopathy,” “[f]requent headache,” Sjordren’s syndrome, “rheumatoid arthritis
of multiple sites,” and myalgia. The ALJ should have incorporated those non-
severe impairments into the RFC. Notably, the vocational expert (VE) confirmed
that, whether due to pain or “any other causitive factor,” an individual needing
more than “two 15 minute breaks” and “ten minutes or more added on to any or all
of the breaks on at least an occasional basis” would not be able to perform
1
The Commissioner maintains that the ALJ’s discounting of Speck’s
testimony was warranted because “a doctor who examined Speck’s eyes thought
that she might be malingering.” However, Speck “presented medical records
supporting multiple diagnoses . . . that could reasonably produce the pain she
describe[d],” and “we must determine whether the ALJ properly discounted
[Speck’s] subjective testimony under the clear and convincing standard.” Smartt,
53 F.4th at 497 (internal quotation marks omitted).
4
“competitive employment.” Due to the ALJ’s failure to properly consider all of
Speck’s impairments and limitations, as well as the discounting of Speck’s
symptom testimony and her treating physician’s opinion, substantial evidence does
not support the ALJ’s determination that Speck could perform sedentary work. See
Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014) (explaining that “[t]he
ALJ’s depiction of the claimant’s disability must be accurate, detailed, and
supported by the medical record”) (citation omitted).
We remand to the agency for further proceedings consistent with our
decision.2
VACATED and REMANDED.
2
Speck seeks a remand for the ALJ to more fully consider her impairments,
the medical evidence, and her symptom testimony, and does not assert that we
should remand for an award of benefits.
5