Cary Anderson v. Andrew Saul ( 2019 )

FILED
NOT FOR PUBLICATION
AUG 13 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARY ANDERSON, No. 18-35541
Plaintiff-Appellant, DC No. CV 17-0133 SLG
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted June 13, 2019
Anchorage, Alaska
Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.
Cary Russell Anderson (“Anderson”) appeals the district court’s judgment
affirming the Commissioner of Social Security’s (the “Commissioner”) denial of
his application for Disability Insurance Benefits and Supplemental Security
Income benefits under Titles II and XVI of the Social Security Act. We review de
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
novo the district court’s decision affirming the denial of benefits, and we may
reverse the decision of the administrative law judge (“ALJ”) where that decision is
based on legal error or where the findings of fact are not supported by substantial
evidence. Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand for further
proceedings.
We hold that the ALJ committed reversible error in discrediting Anderson’s
subjective testimony. Where, as here, the ALJ has found that the claimant has
“presented objective medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms alleged” and there
is no evidence of malingering, “the ALJ can reject the claimant’s testimony about
the severity of [his] symptoms only by offering specific, clear and convincing
reasons for doing so.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)
(quotation marks and citations omitted). Under the specific, clear and convincing
standard, the ALJ must “identify the testimony she found not credible” and “link
that testimony to the particular parts of the record supporting her non-credibility
determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). Here,
the ALJ rejected three portions of Anderson’s testimony as not credible: (1)
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Anderson’s “pain related to psoriatic arthritis,” (2) Anderson’s “alleged difficulty
using his hands,” and (3) Anderson’s alleged limited mobility.
1. The ALJ explained that Anderson’s testimony regarding his severe
pain was not credible because “in [Anderson’s] treatment notes with [Nurse]
Bushnell he frequently describes his pain as controlled on Percocet, and notes he
uses an elliptical, as well as walks.” These reasons for discrediting Anderson’s
pain testimony are neither clear nor convincing. Although Nurse Bushnell’s
treatment records did note that Anderson’s pain was eased when he was on
Percocet, the fact that Percocet eases some of Anderson’s pain does not discount
that he is indeed in serious pain. In fact, treatment records indicate he consistently
complained of pain during his visits, sometimes quite significant pain, despite the
Percocet. Nurse Bushnell, for example, reported that Anderson had “severe
psoriasis” and pain at nearly every visit over the course of several years. Thus,
evidence that Anderson’s pain could, at times, be managed or reduced is not
inconsistent with Anderson’s descriptions of extreme pain.
Nor is a single medical record noting Anderson’s occasional use of the
elliptical inconsistent with Anderson’s statements about pain, as Anderson does not
assert that he is in extreme pain every minute of every day such that he can never
be active. And, contrary to the ALJ’s determination, Anderson’s treatment records
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supported Anderson’s testimony regarding his limitations in movement. Nurse
Bushnell noted that Anderson has “joint issues, difficulty walking, movement,
weight bearing.” Dr. Meinhardt similarly noted that Anderson had difficulty
standing and climbing onto the exam table due to generalized joint pain, that
Anderson made “all of his maneuvers quite slowly,” and that Anderson had
difficulty laying down supine and sitting back up due to low back pain. These
observations in treatment notes are consistent across multiple years. Thus, the ALJ
erred in discrediting Anderson’s testimony on his limitations in movement.
2. The ALJ’s explanation that Anderson’s “alleged difficulty using his
hands is not fully credible” because “he did not have demonstrated difficulty with
manipulative activities during the record” is also insufficient: it is impermissibly
vague because it does not “link that testimony to the particular parts of the record
supporting [the] non-credibility determination.” Brown-Hunter, 806 F.3d at 494;
see also Tonapetyan v. Halter, 242 F.3d 1144, 1147–48 (9th Cir. 2001) (explaining
that the ALJ may not “reject the claimant’s statements regarding [his] limitations
merely because they are not supported by objective evidence”). It is also not
supported by the record, as multiple of Anderson’s treatment records noted
Anderson’s arthritic hands and hand-related joint pain.
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3. The ALJ’s stated reasoning for discrediting Anderson’s testimony that
he had difficulty walking was also not clear and convincing. The ALJ explained
that Anderson’s testimony was contradicted by Nurse Bushnell’s notes that
Anderson had an “overall normal gait during examinations” and “[Anderson’s]
reported ability to walk and use an elliptical.” This is not a sufficient reason.
Although Nurse Bushnell’s notes do state that Anderson had used an elliptical and
had an “ overall normal” gait, the fact that Anderson is able to walk or exercise
occasionally is not “inconsistent with the pain-related impairments that [Anderson]
described in [his] testimony.” Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir.
2014). “We have repeatedly warned that ALJs must be especially cautious in
concluding that daily activities are inconsistent with [a claimant’s] testimony . . .
because impairments that would unquestionably preclude work and all the
pressures of a workplace environment will often be consistent with doing more
than merely resting in bed all day.” Id.; see also Trevizo v. Berryhill, 871 F.3d
664, 679 (9th Cir. 2017) (noting that claimant with mobility issues because of
psoriatic plaques on her feet had a normal gait). Further, as explained above, the
treatment notes of Nurse Bushnell, Dr. Meinhardt, and others in fact support
Anderson’s assertion that he had difficulty moving and walking due to joint pain.
Accordingly, the mere fact that Anderson could accomplish a few physical tasks
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some of the time is not sufficient to discredit Anderson’s testimony that he had
difficulty walking.
• ! •
None of the ALJ’s identified reasons for discrediting portions of Anderson’s
testimony is clear and convincing, and the remainder of the ALJ’s discussion of
Anderson’s testimony related to “unspecified conflict[s] between Claimant’s
testimony,” and merely “summarized the medical evidence supporting her [residual
functional capacity] determination.” Brown-Hunter, 806 F.3d at 494 (quotation
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marks and citation omitted). The ALJ therefore committed legal error in
discrediting Anderson’s testimony.1
This error was not harmless. Had Anderson’s testimony regarding his
limitations been credited, the ALJ surely could not have concluded that Anderson
was capable of performing most forms of light work—which includes jobs that
“require[] a good deal of walking or standing,” 20 C.F.R. § 404.1567(b). Further,
1
The ALJ also suggested that Anderson’s allegations regarding the
extent of his psoriasis were not credible, citing to treatments records indicating
Anderson’s stability on Enbrel and the fact that “there is no evidence of suspicious
lesions in the record.” These reasons are not clear and convincing. The treatment
records consistently indicated that Anderson had significant scaling areas of
psoriasis. These scaling areas frequently covered large portions of his body, were
painful, and would bleed. Further, the treatment records consistently indicated that
although Anderson took Enbrel, it was not as effective as hoped for and often
resulted in intolerable side effects. Lastly, “suspicious lesions” likely referred to
cancerous lesions (e.g., melanoma or other potential skin cancer), which has no
bearing on whether or not Anderson has extensive psoriatic lesions.
Moreover, the ALJ made no effort to explain why many of the other
limitations claimed by Anderson were not credible. In particular, Anderson
testified and described in his written statement at great length that his daily life and
activities are limited by extensive and regular bleeding caused by his psoriasis.
The ALJ made no attempt to address these limitations or to explain why they
should not be credited. Anderson also testified that he frequently became sick
because the medicines he used to control his psoriatic arthritis suppressed his
immune system, and that he was often severely fatigued after taking care of daily
tasks like showering or spending an afternoon with his son. The ALJ likewise
provided no basis not to credit this testimony. Thus, these claimed limitations
should have been accounted for when determining Anderson’s residual functional
capacity. See, e.g., Trevizo, 871 F.3d at 678 n.6; Burrell v. Colvin, 775 F.3d 1133,
1138 (9th Cir. 2014).
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if Anderson’s testimony had been credited, the ALJ would have had to determine
that Anderson would have had to take much more extensive breaks during the
course of the workday, and would have missed a substantial number of workdays
during a month on account of his pain and bleeding. Accordingly, we reverse. and
remand.2
REVERSED and REMANDED with instructions for the district court
further to remand this case to the Commissioner to allow further development of
the record by Anderson regarding his symptoms and limitations, and for
reconsideration of the record evidence in light of this disposition.
2
Because the ALJ’s erroneous discrediting of Anderson’s testimony
alone warrants reversal, we need not and do not reach Anderson’s other arguments.
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