FILED
NOT FOR PUBLICATION OCT 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM R WHITE, Jr., No. 13-35313
Plaintiff - Appellant, D.C. No. 2:12-cv-00590-JPD
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue II, Magistrate Judge, Presiding
Argued and Submitted August 26, 2014
Seattle, Washington
Before: WARDLAW, GOULD, and CHRISTEN, Circuit Judges.
William White appeals the district court’s order affirming the Social
Security Commissioner’s denial of disability benefits. White argues that the
administrative law judge (“ALJ”) erred by improperly determining that White was
not credible and by ignoring the lay testimony of his wife. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pursuant to 28 U.S.C. § 1291, and we agree with White. Accordingly, we reverse
the district court’s affirmance of the denial of benefits and remand for a new
hearing before the ALJ.
1. The ALJ’s conclusion that White’s testimony was not credible is not
supported by substantial evidence. See Molina v. Astrue, 674 F.3d 1104, 1110 (9th
Cir. 2012). Where, as here, a claimant has produced “objective medical evidence
of an underlying impairment which could reasonably be expected to produce
the . . . symptoms alleged . . . and there is no evidence of malingering, then the ALJ
must give specific, clear and convincing reasons in order to reject the claimant’s
testimony about the severity of the symptoms.” Id. at 1112 (internal quotation
marks omitted).1 The ALJ rejected White’s testimony as to the “intensity,
persistence and degree,” of his impairments as inconsistent with his physician
reports. However, the examples given by the ALJ were not inconsistencies at all
but were entirely consistent with White’s testimony at the hearing as to his mental
and physical impairments and alcohol dependence. For example, the ALJ found
“most striking” a supposed claim by White that alcohol had nothing to do with his
1
Because White explicitly argued before the district court that the ALJ’s
credibility finding was not supported by substantial evidence, the district court
erred in deeming White’s challenge to the ALJ’s adverse credibility finding
waived.
2
depression and suicidal ideation. But this was taking out of context a statement in
his testimony about what he would tell hospital staff depending on whether he
wanted to be released. In addition, the ALJ improperly discredited White for
allegedly failing to follow a treatment regimen when White was unable to afford
some recommended treatments, see Gamble v. Chater, 68 F.3d 319, 321 (9th Cir.
1995), and the record demonstrates that White occasionally sought too much
treatment, not too little. The remainder of the purported inconsistencies between
White’s reported daily activities and White’s statements regarding those activities,
to the extent they are inconsistencies at all, are explained by White’s deteriorating
condition. Therefore, the ALJ failed to give “specific, clear and convincing
reasons” for concluding that White was not credible. See Molina, 674 F.3d at 1112
(internal quotation marks omitted).
2. The ALJ also erred by failing to explain her reasons for disregarding the
lay witness testimony of White’s wife, id. at 1115, and by failing to discuss it
altogether. White’s wife confirmed White’s testimony by, for example, supporting
his claim that he “just can’t leave the house” for extended periods of time. Lay
witness testimony that explains a claimant’s symptoms and how they affect his
ability to work simply “cannot be disregarded without comment.” Nguyen v.
Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).
3
3. We therefore reverse and remand with instructions to the district court to
reverse the ALJ’s decision finding White not disabled and remand to the Social
Security Administration for a new hearing.2
REVERSED AND REMANDED.
2
We do not address White’s claim that the ALJ erred by not applying the
two-step analysis articulated in Bustamante v. Massanari, 262 F.3d 949 (9th Cir.
2001). That analysis is necessary only if the ALJ deems White disabled on
remand.
4