FILED
NOT FOR PUBLICATION JUL 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
CARL A. COMBS, No. 09-16135
Plaintiff - Appellant, D.C. No. 3:08-cv-01728-MEJ
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Submitted April 16, 2010**
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges, and COLLINS, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
1
Appellant Carl Combs ('Combs') appeals the district court's summary
judgment in favor of the Commissioner of Social Security ('Commissioner'). The
district court affirmed the decision of the Administrative Law Judge ('ALJ')
denying Combs Disability Insurance benefits and Supplemental Security Income
benefits under Titles II and ÈVI of the Social Security Act. The ALJ concluded,
on the basis of step five in the five-step sequential analysis in 20 C.F.R.
y404.1520(a)-(g), that Combs was not 'disabled' within the meaning of the Act,
42 U.S.C. y 1382c(3), because he retained 'the capacity to do many unsµilled,
entry-level sedentary jobs existing in the national economy and the several regions
of the country.' We have jurisdiction under 28 U.S.C. y 1291. We review de novo
the district court's decision affirming the ALJ, and we reverse and remand for
further proceedings.
1. Combs's Treating Physician
Combs contends that the ALJ erred by rejecting the opinion of Dr.
Rosenberg, Combs's treating physician, without providing legally adequate
reasons for doing so. Both credibility and the weight of medical testimony is
determined by the ALJ. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).
If the treating or examining physician's opinion is contradicted by another doctor,
as here, the ALJ may reject that opinion only if he provides specific and legitimate
2
reasons supported by substantial evidence in the record. Lester v. Chater, 81 F.3d
821, 830-31 (9th Cir. 1995).
The ALJ's reasons for rejecting Dr. Rosenberg's opinion met that standard.
He found that Dr. Rosenberg's opinion was not supported by any other examiner.
Relying on observations and test results from treating physicians as well as reports
from non-examining state agency physicians, the ALJ determined that Dr.
Rosenberg's opinion was not supported by substantial evidence in the record. The
ALJ, therefore, permissibly rejected a medical opinion of a treating physician that
the ALJ determined was unsupported by the record as a whole. See Batson v.
Comm'r, 359 F.3d 1190, 1195 (9th Cir. 2004).
2. Adverse Credibility
Next, Combs argues that the ALJ erred in rejecting Combs's testimony
regarding his pain and functional limitations without clear and convincing reasons
for doing so.
Combs testified that his bacµ and necµ pain were 'severe' and on a pain
scale of zero to ten, the pain was a 'ten' on a 'continuous basis' throughout the
day. He further testified that he only had the ability to sit for 40-45 minutes before
he needed to stand up for 10-15 minutes, after which time he applied heat and ice
and then laid down for about an hour. He testified that he repeated this process
3
five to six times a day and that if he did not go through this process, the pain he
experienced was so severe that it prevented him from concentrating.
In evaluating the credibility of a claimant's subjective complaints of pain, an
ALJ must consider the factors listed in SSR 88-13:
1. The nature, location, onset, duration, frequency, radiation, and
intensity of any pain;
2. Precipitating and aggravating factors (e.g., movement, activity,
environmental conditions);
3. Type, dosage, effectiveness, and adverse side-effects of any pain
medication;
4. Treatment, other than medication, for relief of pain;
5. Functional restrictions; and
6. The claimantùs daily activities.
See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Further, the ALJ may
consider an 'unexplained or inadequately explained failure to seeµ treatment or to
follow a prescribed course of treatment,' in addition to 'ordinary techniques of
credibility evaluation, such as the claimant's reputation for lying, prior inconsistent
statements concerning the symptoms, and other testimony by the claimant that
appears less than candid.' Id.
4
Where, as here, 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
only reject the claimant's testimony about the severity of the symptoms if he gives
'specific, clear and convincing reasons' for the rejection. Ligenfelter v. Astrue,
504 F.3d 1028, 1036 (9th Cir. 2007); Smolen, 80 F.3d at 1281.
The ALJ found that Combs's allegations of pain were not credible in view of
the lacµ of objective medical signs or findings; the existence of protracted
worµers's compensation litigation; and the invalid results at the psychological
consultative examination. We conclude that this assessment does not support an
adverse credibility finding.
First, the ALJ erred in relying on the lacµ of objective medical evidence
regarding the severity of Combs's pain. See Reddicµ v. Chater, 157 F.3d 715, 722
(9th Cir. 1998) ('Once the claimant produces medical evidence of an underlying
impairment, the Commissioner may not discredit the claimant's testimony as to the
severity of symptoms merely because they are unsupported by objective medical
evidence.').
Second, the ALJ erred in failing to discuss any of the factors promulgated by
SSR 88-13 or evidence this Court has indicated is to be considered in maµing a
5
credibility determination. Instead, the ALJ relied on the existence of the worµers's
compensation claim and the invalid results of the psychological exam-- evidence
which is not probative of Combs's credibility-- to support his adverse credibility
determination.
Due to the ALJ's faulty credibility assessment, we will remand for further
administrative review and apply the credit-as-true rule to Combs's improperly
discounted pain testimony. On remand, the ALJ is instructed to accept Combs's
symptom testimony as true in determining whether he is entitled to benefits. See
Vasquez v. Astrue, 572 F.3d 586, 594 (9th Cir. 2009)(applying the credit-as-true
rule to improperly discounted pain testimony and noting that '[b]y requiring the
ALJ to specify 'any factors discrediting a claimant at the first opportunity,' the
[credit-as-true] rule ensures that pain testimony is carefully assessed, and helps
prevent unnecessary duplication in the administrative process.')(quoting Varney v.
Secretary of Health and Human Services, 859 F.2d 1396, 1398 (9th Cir. 1988)).
REVERSED and REMANDED.1
1
Combs's third argument is derivative of the credibility issue. Combs
contends that the ALJ erred in assessing his residual functional capacity and did
not include all of Combs's limitations in the hypothetical posed to the vocational
expert. On remand, the ALJ will have an opportunity to address this issue.
6
FILED
Combs v. Astrue, Case No. 09-16135 JUL 13 2010
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO UR T OF AP PE A LS
I concur in the result.