FILED
NOT FOR PUBLICATION
AUG 18 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNA MARIE PHILLIPS, No. 13-15066
Petitioner - Appellant, D.C. No. 1:11-cv-01928-GSA
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
Argued and Submitted February 12, 2015
San Francisco California
Before: TASHIMA, McKEOWN, and CLIFTON, Circuit Judges.
Anna Marie Phillips appeals the district court’s judgment affirming the
Commissioner’s denial of her application for disability insurance benefits. Phillips
argues that the Administrative Law Judge inappropriately considered evidence of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
her addiction to prescription drugs in light of Social Security Ruling (“SSR”)
13-2p, erred in discounting the opinion of treating physician Dr. Dumitru, and
further erred in discrediting Phillips’s pain testimony. We remand to the district
court with instructions to remand to the Social Security Administration for further
consideration.
SSR 13-2p provides that substance use disorders do not include “[a]ddiction
to, or use of, prescription medications taken as prescribed.” Although SSR 13-2p
was issued after Phillips was denied benefits, the Commissioner took the position
before us that it did not represent a change in the law and that the finding that
Phillips had abused drugs was based on her failure to take prescription medication
as prescribed.
The record does not support that conclusion. The ALJ’s decision placed
“greatest weight” on the opinion of Dr. Temple, including his testimony that
Phillips was “using more medication than she really needs.” That did not
demonstrate that she used more medication than she was prescribed, however. The
ALJ noted that “claimant’s doctors at Kaiser have prescribed her the pain
medications.”
The decision did refer to “drug seeking behavior” and the possibility that
Phillips obtained a greater quantity of medication than prescribed by claiming that
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the medication was stolen. Substantial evidence supported the ALJ’s
determination that on multiple occasions, Phillips requested additional
prescriptions because her medication had been “stolen” or “lost.” She also failed
to attend pain management programs to which her doctors had referred her.
But neither the ALJ’s decision nor the testimony of Dr. Temple upon which
it relied distinguished between (a) medications taken in excess of the amounts
prescribed by Phillips’s doctors and (b) medications taken as prescribed that Dr.
Temple believed were unnecessary and should not have been prescribed. The latter
category would not necessarily indicate a substance use disorder as defined by the
Commissioner. Similarly, the ALJ attributed the side effects that limited Phillips
to less than sedentary work to “taking the excessive quantities of medication, levels
that Dr. Temple feels is unnecessary.” But that Dr. Temple believed the
medications were unnecessary did not establish that they had not been taken as
prescribed.
The ALJ found that with “substance abuse,” Phillips was disabled. But the
decision did not state a finding as to whether Phillips would have been disabled if
she limited her use to medications taken as prescribed. Neither the precise basis
for the ALJ’s finding nor the impact of SSR 13-2p in this context is clear, and
those questions should be addressed by the agency in the first instance. On
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remand, the agency should determine whether Phillips’s excessive use constituted
evidence of a substance use disorder.
The ALJ inadequately articulated the basis for dismissing the opinion of the
treating physician, Dr. Dumitru. Because Dr. Dumitru’s opinion was contradicted,
the ALJ had to provide “specific and legitimate reasons” based on substantial
evidence before rejecting it. See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).
The ALJ explained that Dr. Dumitru’s opinion was inconsistent with the record
and contradicted by the opinions of Dr. Temple and the State Agency, as well as a
medical note by Dr. Sweeney. The ALJ later discussed and noted his reliance on
Dr. Temple’s opinion and the note by Dr. Sweeney, but left his specific reasons for
discounting Dr. Dumitru’s opinion to be inferred. On remand, the ALJ should
reconsider his dismissal of Dr. Dumitru’s opinion.
Substantial evidence supported the ALJ’s credibility determination regarding
Phillips. The ALJ provided clear and convincing reasons for discrediting Phillips’s
pain testimony. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
In making this determination, the ALJ properly considered inconsistencies in
Phillips’s testimony as well as inconsistencies between her testimony and her daily
activities, work post disability onset, and the objective medical record. See Smolen
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v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); Burch v. Barnhart, 400 F.3d 676,
681 (9th Cir. 2005).
Costs are awarded to appellant Phillips.
VACATED and REMANDED.
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