FILED
NOT FOR PUBLICATION JUL 19 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
RALPH N. DAVIS, No. 10-35703
Plaintiff - Appellant, D.C. No. 2:09-cv-00191-CI
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Cynthia Imbrogno, Magistrate Judge, Presiding
Argued and Submitted May 6, 2011
Seattle, Washington
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
Appellant Ralph N. Davis ('Davis') appeals the district court's summary
judgment in favor of the Commissioner of Social Security ('Commissioner'). The
Administrative Law Judge ('ALJ') denied Davis's Disability Insurance benefits
and Supplemental Security Income benefits under Titles II and ÈVI 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. The ALJ concluded, on the basis of step four in the five-step
sequential analysis in 20 C.F.R. y 404.1520(a)-(g), that Davis was not 'disabled'
within the meaning of the Act, 42 U.S.C. y 1382c(3), because he could still
perform his past relevant worµ as a cabinet assembler. We have jurisdiction under
28 U.S.C. y 1291. We review de novo the district court's decision, and we reverse
and remand for further proceedings.
Davis contends that the ALJ erred by rejecting the opinion of Dr. Joseph
Cools, the impartial medical expert selected by the ALJ to testify at the disability
hearing, without providing legally adequate reasons for doing so. See 20 C.F.R.
y 404.1527(f)(2)(iii) (providing standards for the ALJ's consideration of expert
testimony). We agree. The ALJ's reason for rejecting Dr. Cools's testimony was
that he 'apparently accepted the exaggerated symptoms without question despite
repeated references in the record to symptom magnification and malingering.'
Dr. Cools, however, did not blindly accept Davis's symptoms. Rather, he
specifically noted the extensive evidence of malingering and exaggeration and
discussed how they complicate Davis's diagnosis. Significantly, Dr. Cools noted
that he relied on evidence in the record, which included clinical notes prepared by
Dr. Tom Arnold after his twelve sessions with Davis, Dr. Robert Baxley's
2
September 2004 Psychiatric Evaluation, and Dr. Pamela Ridgeway's March 2007
Psychological Diagnostic Evaluation.
Additionally, Dr. Cools's findings are largely consistent with the opinion of
Dr. Arnold, Davis's treating psychologist. The two opinions differed in their
classification of the severity of Davis's limitations, but even Dr. Arnold's more
conservative 2007 evaluation still found a number of mild and moderate functional
limitations. As the treating psychologist, Dr. Arnold's opinion was due
'controlling weight.' See 20 C.F.R. y 404.1527(d)(2); see also Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1995) (holding that such testimony can be rejected only if
the ALJ provides 'specific and legitimate reasons supported by substantial
evidence in the record.'). Since Dr. Cools's testimony was supported by evidence
in the record and did not improperly ignore the evidence of malingering, we
conclude that the ALJ failed to provide adequate reasons for rejecting the opinion
of Dr. Cools. See 20 C.F.R. y 404.1527(f)(2)(iii). Cool's opinion was that
malingering was but a symptom of an underlying disabling psychological
condition, and that Davis was unable to worµ on the basis of the underlying
disability, not on account of malingering, as the dissent incorrectly assumes.
With respect to the testimony of the Vocation Expert ('VE'), the
hypothetical posed by the ALJ did not taµe into account all of the claimant's
3
limitations. Although claimant's attorney attempted to asµ a more complete
hypothetical, Davis' counsel at oral argument acµnowledged that additional
testimony by the VE would be necessary on remand. We therefore reverse and
remand to the district court with instructions to reverse the administrative decision
and remand for such additional proceedings.
The district court concluded that Davis is ineligible for Title II disability
insurance and can only qualify for Title ÈVI benefits. Davis has not appealed that
conclusion, accordingly, any challenge has been waived.
REVERSED and REMANDED for further proceedings consistent with this
decision.
Plaintiff is awarded costs on appeal.
4
FILED
Davis v. Astrue, No. 10-35703 JUL 19 2011
MOLLY C. DWYER, CLERK
Callahan, Circuit Judge, dissenting U.S . CO U RT OF AP PE A LS
I do not believe malingering is a compensable disability. I dissent.1
In my view, substantial evidence supports the Administrative Law Judge's
('ALJ') conclusion that Davis could perform his past worµ as a cabinet assembler.
The ALJ found the testimony of Dr. Cools, a non-treating, non-examining medical
expert, to be unsupported by evidence in the record. Because the testimony given
by Dr. Cools was not supported by any findings, and conflicted with the opinions
of other physicians, including his treating physician, the ALJ was not required to
accept his testimony, and was certainly not required to give his testimony more
weight than the treating physician's opinion. Bray v. Comm'r of Soc. Sec. Admin.,
554 F.3d 1219, 1228 (9th Cir. 2009).
The ALJ asµed the Vocational Expert ('VE') a hypothetical based on the
limitations he found credible and supported by the objective evidence in the record.
The VE stated that a person with those limitations would be able to perform
Davis's past worµ as a cabinet assembler. Substantial evidence supports the ALJ's
1
I concur in the portion of the decision that finds Davis is ineligible for
benefits under Title II of the Social Security Act and that he has waived any
challenge to that finding.
decision as to Davis's limitations. Because we do not review the ALJ's decision
de novo, his judgment should not be replaced with ours. See Flaten v. Sec'y of
Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). I would affirm the
district court's decision upholding the ALJ. Given my dissent, I would also not
award costs to the plaintiff on appeal.