FILED
NOT FOR PUBLICATION MAY 12 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
MARVIN A. SAUNDERS, No. 09-17541
Plaintiff - Appellant, D.C. No. 2:08-cv-00595-MHM
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted March 16, 2011
San Francisco, California
Before: PAEZ, BERZON, and BEA, Circuit Judges.
Marvin A. Saunders ('Saunders') appeals the district court's judgment
affirming the final decision by the Commissioner of Social Security denying
Saunders's application for disability insurance benefits under Title II of the Social
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Security Act. We have jurisdiction pursuant to 28 U.S.C. y 1291, and we reverse
and remand for further proceedings.
We review de novo the district court's judgment affirming the administrative
law judge's ('ALJ') denial of social security benefits. Berry v. Astrue, 622 F.3d
1228, 1231 (9th Cir. 2010). The denial of benefits by an ALJ may be set aside
only if it is based on legal error or is not supported by substantial evidence. Id.
Where the claimant has presented objective medical evidence of an underlying
impairment and there is no affirmative evidence of malingering, an ALJ's adverse
credibility finding must be supported by clear and convincing reasons.
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
Saunders contends that the ALJ improperly discredited his pain testimony.
We agree. The ALJ failed to provide clear and convincing reasons for discrediting
Saunders's pain and symptom testimony. At step 2 of the sequential evaluation
process, the ALJ relied on objective medical evidence from Saunders's treating
physicians, finding him 'severely' impaired. At step 4, the ALJ emphasized the
conclusions of Dr. McPhee, a state-agency examining physician, who opined that
Saunders was 'overly dramatic' and could perform medium worµ. In light of the
substantial evidence from Saunders's treating physicians, the ALJ erred by relying
on Dr. McPhee's opinion. See Orn v. Astrue, 495 F.3d 625, 632-33 (9th Cir.
2
2007) (holding that a treating physician's opinion must be given controlling weight
if it is well-supported and consistent with other substantial evidence in the record).
Saunders's treating physicians diagnosed him with chronic bacµ pain, prescribed
morphine, and instructed him to lie down to relieve pain. Dr. Rodriguez
specifically counseled Saunders to change jobs, noting that his condition was so
severe that he had to quit his job. By contrast, Dr. McPhee examined Saunders on
only one occasion and did not review his medical records or MRI results before
rendering his opinion. We therefore conclude that the ALJ erred by relying on Dr.
McPhee to find that Saunders's pain testimony was not credible.
We also conclude that the ALJ further erred by finding that Saunders's daily
activities were inconsistent with his pain and symptom testimony. We have held
consistently that, activities such as light household chores, cooµing meals, and
grocery shopping are activities that do not necessarily translate to the worµ
environment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Vertigan
v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (holding that grocery shopping,
driving a car, and limited walµing for exercise are not inconsistent with disability);
Reddicµ v. Chater, 157 F.3d 715, 723 n.1 (9th Cir. 1998) (noting that limited
cooµing, cleaning, and shopping are not indicative of an ability to engage in
sustained worµ activity). The ALJ's assertions about Saunders's daily activities
3
considerably exaggerate the evidence in the record. Saunders's activities were
limited. For example, his cooµing was limited to maµing sandwiches or heating up
frozen food one to three times per weeµ. Moreover, Saunders testified that his
children often assisted him with many of the household chores, and after any
activity, he would need to lie down and rest. Accordingly, we conclude that
substantial evidence does not support the ALJ's determination to discredit
Saunders's pain testimony on the basis of his daily activities.
Finally, the ALJ improperly discredited Saunders's testimony on the basis of
his observations at the hearing that Saunders wore a brace and used a cane when
'no treating physician had prescribed these assistive devices.' This observation
provides little, if any, support to discredit Saunders's testimony. See Orn, 495
F.3d at 639-40; see also Gallant v. Hecµler, 753 F.2d 1450, 1455 (9th Cir. 1984).
Saunders truthfully responded to the ALJ's questions, admitting that the brace and
cane helped him to cope with the pain and feel more comfortable. Whether
prescribed by a doctor or not, Saunders did suffer from a 'serious' impairment,
and his use of these devices is not clear and convincing evidence to find him not
credible. Moreover, because the ALJ's other reasons for discrediting Saunders
were not proper, personal observations of a claimant's function cannot form the
sole basis for discrediting his testimony. Orn, 495 F.3d at 639-40.
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Saunders also contends that the ALJ erred in assessing his residual
functional capacity ('RFC') at step 4 of the sequential evaluation process. We
agree. Because the ALJ improperly relied on the testimony of Dr. McPhee, over
the opinions and records of Saunders's treating physicians, and improperly
discredited Saunders's testimony, the ALJ's RFC determination is not supported
by substantial evidence. We therefore remand for further proceedings consistent
with this disposition.
REVERSED AND REMANDED
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FILED
Saunders v. Astrue, 09-17541 MAY 12 2011
MOLLY C. DWYER, CLERK
BEA, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
The majority substitutes its own credibility determination for that of the
administrative law judge ('ALJ'), ignoring the significant deference required of
this court. I therefore dissent.
'An ALJ cannot be required to believe every allegation of disabling pain, or
else disability benefits would be available for the asµing . . . .' Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989). 'If there is medical evidence establishing an
objective basis for some degree of pain and related symptoms, and no evidence
affirmatively suggesting that the claimant was malingering, the [ALJ's] reason for
rejecting the claimant's testimony must be 'clear and convincing' and supported by
specific findings.' Dodrill v. Shalala, 12 F.3d 915, 917 (9th Cir. 1993). To
comply with that standard, the ALJ is 'required to point to specific facts in the
record which demonstrate that [the claimant] is in less pain than [he] claims.' Id.
at 918. 'In determining credibility, an ALJ may engage in ordinary techniques of
credibility evaluation, such as considering claimant's reputation for truthfulness
and inconsistencies in claimant's testimony.' Burch, 400 F.3d at 680. 'If the
ALJ's finding is supported by substantial evidence, the court may not engage in
second-guessing.' Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)
(internal quotations omitted).
The majority's analysis is the epitome of second-guessing. The ALJ here
identified clear and convincing reasons, supported by specific findings, for
discounting in part Saunders's pain testimony: (1) the ALJ noted that Dr. McPhee
reported Saunders 'had an overly dramatic presentation and had a tendency to
groan, grimace and grunt out of proportion to the gentle nature off the examination
procedures'; (2) the ALJ stated that '[n]o treating physician ha[d] assessed
limitations on [Saunders]'s ability to perform worµ related activities'; (3) the ALJ
noted that Saunders was able to perform many daily activities, including caring for
his ill fianc7e, light household chores, preparing meals, grocery shopping, driving a
car, and taµing his grandchildren to and from daycare and church; and (4) the ALJ
noted that Saunders wore a brace and used a cane at the disability hearing, despite
no treating physician ever prescribing these assistive devices. There is no doubt
Saunders suffered from a severe bacµ impairment; the question before the ALJ was
whether there was pain from such impairment, the nature and amount of any such
pain, and whether such pain was debilitating.
The majority contends the ALJ erred in relying on Dr. McPhee's opinion,
when Dr. Rodriguez--Saunders's treating physician--had counseled Saunders to
change jobs due to the severity of his pain. Notably, however, Dr. Rodriguez did
not counsel Saunders to stop worµing; even Dr. Rodriguez believed Saunders
2
could perform some degree of worµ. Indeed, no physician--treating, examining,
or otherwise--concluded that Saunders was incapable of worµing due to his bacµ
condition. Therefore, Dr. McPhee's conclusion that Saunders's pain was not in
fact debilitating was consistent with that of his treating doctor. As such, this
constitutes a 'clear and convincing' reason for discrediting in part Saunders's pain
testimony.
Next, the majority finds the ALJ erred in concluding that Saunders was
exaggerating his pain on the basis of the numerous daily tasµs Saunders completed.
'[I]f a claimant is able to spend a substantial part of his day engaged in pursuits
involving the performance of physical functions that are transferable to a worµ
setting, a specific finding as to this fact may be sufficient to discredit an allegation
of disabling excess pain.' Fair, 885 F.2d at 603. Saunders cared for his seriously
ill fianc7e, performed light household chores, prepared meals, shopped for
groceries, drove a car, and tooµ his grandchildren to and from daycare and church.
The ALJ was entitled to find that if Saunders could perform these household
functions, he could also perform light worµ functions. Therefore, this specific
finding was 'sufficient to discredit [Saunders's] allegation of disabling excess
pain.' Id.
Finally, the majority holds the ALJ erred in basing his credibility
3
determination on 'his observations at the hearing that Saunders wore a brace and
used a cane' without a physician's prescription. Mem. Dispo. at 4. '[T]he [ALJ]
may also consider his or her own recorded observations of the individual as part of
the overall evaluation of the credibility of the individual's statements.' Soc. Sec.
Ruling 96-7p. Despite the majority's disagreement with the ALJ's conclusion, this
is a 'clear and convincing' reason, supported by a specific finding, for disbelieving
the severity of pain alleged by Saunders. It is called 'exaggeration.' Therefore, it
must be upheld. Dodrill, 12 F.3d at 917; see also Verduzco v. Apfel, 188 F.3d
1087, 1090 (9th Cir. 1999) (finding the ALJ offered a clear and convincing reason
for discrediting the claimant's pain testimony because the claimant 'used a cane at
the hearing, although none of his doctors had ever indicated that he used or needed
to use an assistive device in order to walµ').
Although the majority may have come to a different conclusion if deciding
this question in the first instance, the ALJ pointed to clear and convincing reasons,
supported by specific findings, for concluding Saunders's pain testimony was not
fully credible. Therefore, rather than 'second-guessing' the ALJ's determination,
Tommasetti, 533 F.3d at 1039, I would affirm.
4