Stacey Case v. Michael Astrue

FILED
NOT FOR PUBLICATION MAR 29 2011

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

STACEY D. CASE, No. 10-35307

Plaintiff - Appellant, D.C. No. 2:09-cv-00083-JPH

v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,

Defendant - Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
James P. Hutton, Magistrate Judge, Presiding

Argued and Submitted March 9, 2011
Seattle, Washington

Before: McKEOWN, FISHER and GOULD, Circuit Judges.

Stacey Case appeals the district court’s judgment affirming the

Administrative Law Judge’s (ALJ) determination that Case was not disabled. Case

argues that the ALJ’s decision should be reversed because it did not contain the

requisite “specific, legitimate reasons” for rejecting her treating rheumatologist’s

opinions about her residual functional capacity (RFC). Morgan v. Comm’r of Soc.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (internal quotation marks and

citation omitted). Although the ALJ properly “set[] out a detailed and thorough

summary of the facts and conflicting clinical evidence,” id. (internal quotation

marks and citation omitted), we conclude that several of the ALJ’s reasons for

discounting the treating physician’s RFC were improper.

The ALJ erred by discounting the treating physician’s RFC because it was

completed “for obvious litigious purposes.” “The purpose for which medical

reports are obtained does not provide a legitimate basis for rejecting them” unless

there is additional evidence demonstrating impropriety, and the ALJ identified no

such evidence. Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995); see also

Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998). Although this error,

standing alone, might not have required reversal, the ALJ also erred by assuming

that Case’s shoulder impairment should be disregarded because it was only

recently diagnosed. The ALJ must consider impairments even if they were

diagnosed after the alleged date of disability onset. See Carmickle v. Comm’r, Soc.

Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (holding that the ALJ erred by

rejecting limitations because they were based on a “recent” diagnosis of a “non-

severe” impairment).

The ALJ also noted that Case’s shoulder injury was treated conservatively.

Although we have held that conservative treatment of allegedly disabling

2
conditions may undermine a finding of disability, see Johnson v. Shalala, 60 F.3d

1428, 1433 (9th Cir. 1995), it is unclear whether or to what extent this factored into

the ALJ’s decision.

In any event, even if the conservative treatment of the shoulder impairment

suggests that this particular injury is not severe, “[t]he ALJ is required to consider

all of the limitations imposed by the claimant’s impairments, even those that are

not severe,” because in combination with other impairments, non-severe

limitations may contribute to rendering a claimant disabled. Carmickle, 533 F.3d

at 1164. Notably, in the first and second hypothetical RFCs that the ALJ asked the

vocational expert (VE) to consider, the ALJ included no limitations on the ability

to push and pull with the upper extremities, and the VE testified that jobs would be

available. By contrast, the VE testified that there would be no work available

under the third hypothetical, where the ALJ had introduced additional impairments,

including limitations to the upper extremities consistent with Dr. Butler’s opinions

about Case’s shoulder impairment. Although this conclusion may have been due

to limitations other than the shoulder impairment, because it is unclear on appeal

which limitations made the difference, we cannot conclude the error was harmless.

REVERSED and REMANDED.