NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 20 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
THAVIN OM, No. 11-17618
Plaintiff - Appellant, D.C. No. 3:10-cv-03874-EDL
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Argued and Submitted November 7, 2013
San Francisco, California
Before: REINHARDT and WATFORD, Circuit Judges, and LYNN, District
Judge.**
The administrative law judge (ALJ) erred in denying Thavin Om disability
benefits. The ALJ’s denial of benefits turned on his finding that Om was not
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for the Northern District of Texas, sitting by designation.
Page 2 of 5
credible and his related rejection of Dr. Gracer’s and Dr. D’Souza’s medical
opinions. The ALJ failed to provide clear and convincing reasons for finding Om
not credible, see Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007),
and thus, the ALJ lacked a permissible basis for rejecting the opinions of her
treating and examining sources.
The ALJ provided five main reasons for his adverse credibility finding:
(1) perceived inconsistencies regarding Om’s English proficiency; (2) Om’s ability
to perform some housework and interact with others; (3) the CDIU’s observations;
(4) Dr. McGee’s opinion that Om gave inconsistent effort during a consultative
examination; and (5) Om’s failure to seek ongoing mental-health treatment after
2006.
We agree with the district court that the first two reasons are not clear and
convincing. Om’s limited English proficiency was consistent with the functional
report she filed, and her ability to read a single pill bottle, at best, marginally
conflicts with her stated inability to read English. Similarly, and as the district
court observed, Om’s ability to perform some chores and interact with others is not
inconsistent with her disability. Disability claimants “should not be penalized for
attempting to lead normal lives in the face of their limitations.” Reddick v. Chater,
157 F.3d 715, 722 (9th Cir. 1998).
Page 3 of 5
The remaining three reasons the ALJ gave for his adverse credibility finding
also are not clear and convincing. First, the CDIU’s observations were generally
consistent with Om’s description of her limitations, and Om’s seeming lack of
emotional or physical problems during her brief interview does not conflict with
her claimed disability. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
Indeed, Om readily admitted during her testimony that her energy level and mood
fluctuate throughout the day. And the ability to remain composed for a mere
twenty-five minutes does not indicate Om could navigate “the more grueling
environment of the workplace.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989);
cf. Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984).
Second, Dr. McGee’s observation that Om gave inconsistent effort during a
consultative examination was not sufficient to discount Om’s credibility. It is true
that Dr. McGee “[did] not feel comfortable making any definitive statements about
[Om’s] cognitive ability to work.” But Dr. McGee did not directly question Om’s
credibility or find that she was malingering, and Dr. McGee diagnosed Om with a
depressive disorder. Moreover, Om, herself, and her treating and examining
sources acknowledge she has difficulty concentrating, potentially explaining her
inconsistent testing performance. Discounting Om’s credibility based on Dr.
McGee’s equivocal evaluation is particularly unconvincing because two other
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medical sources agreed that Om exhibited symptoms of depression and PTSD. See
Reddick, 157 F.3d at 723.
Third, Om’s failure to seek ongoing mental-health treatment after 2006 does
not serve to discredit her testimony. As a threshold matter, “it is a questionable
practice to chastise one with a mental impairment for the exercise of poor
judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th
Cir. 1996) (internal quotation marks omitted). Further, Om remained on
psychotropic drugs through at least mid-2008. Even when she was in treatment,
Dr. Gracer noted that she struggled to remember appointments, potentially
explaining her failure to continue treatment.
In short, considered together, the ALJ’s reasons for finding Om not credible
do not rise to the level of clear and convincing. As such, his adverse credibility
finding was not supported by substantial evidence.
Given that Om should have been found credible, it follows that the ALJ also
erred by rejecting Dr. Gracer’s and Dr. D’Souza’s opinions. The ALJ rejected
their opinions because they were based primarily on Om’s statements, which the
ALJ found not credible, rather than on a rigorous analysis of her symptoms. But
Om’s statements were credible, and both Dr. Gracer and Dr. D’Souza discussed
Page 5 of 5
Om’s specific symptoms and cited the relevant sections of the DSM-IV in making
their diagnoses.
In light of our rulings above, it is clear from the record that the ALJ would
be required to find Om disabled at step 5 on remand, notwithstanding her failure to
attend two consultative examinations on the advice of counsel. Once her testimony
and her medical sources’ opinions are properly credited, the record makes clear
that Om cannot engage in substantial gainful activity that exists in “significant
numbers” in the national economy. Reddick, 157 F.3d at 728–29; see Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1202 (9th Cir. 2008). Thus, we reverse the
decision of the district court and remand with instructions to remand to the
Commissioner for a calculation of benefits. See Orn, 495 F.3d at 640.
REVERSED and REMANDED.