NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KAREN MATTOX, No. 09-15351
Plaintiff - Appellant, D.C. No. 2:06-cv-01698-GGH
v.
MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Gregory G. Hollows, Magistrate Judge, Presiding
Submitted March 9, 2010**
San Francisco, California
Before: FERNANDEZ, HAWKINS and THOMAS, Circuit Judges.
Karen Mattox (“Mattox”) appeals the adverse summary judgment upholding the
Commissioner of Social Security’s denial of her application for disability insurance
benefits under Title II of the Social Security Act. We reverse and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review a district court’s order affirming denial of social security benefits
de novo, Vasquez v. Astrue, 572 F.3d 586, 590 (9th Cir. 2009), and we may set aside
the Commissioner’s denial of benefits when the administrative law judge’s (“ALJ”)
findings are based on legal error or are not supported by substantial evidence. Id. at
591. However, “where the evidence is susceptible to more than one rational
interpretation,” we must affirm the decision of the ALJ. Andrews v. Shalala, 53 F.3d
1035, 1039-40 (9th Cir. 1995).
Even assuming Mattox’s waiver of her right to counsel was improper, the ALJ
developed a record in this case that was neither ambiguous nor inadequate to preclude
a proper evaluation of the evidence, see Mayes v. Massanari, 276 F.3d 453, 459-60
(9th Cir. 2001), meaning Mattox was not prejudiced in the proceeding. Vidal v.
Harris, 637 F.2d 710, 714 (9th Cir. 1981).
The ALJ did, however, fail to provide a clear and convincing reason for
discounting Mattox’s testimony, see Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th
Cir. 1996), and improperly credited testimony of a nontreating, nonexamining
physician over contradictory testimony of both a treating physician and an examining
physician without articulating a legitimate reason, see Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995) (ALJ must provide “specific and legitimate” reasons for
discounting treating and examining physicians’ contradicted opinions).
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As for Mattox’s testimony, the purported inconsistencies in her statements
regarding the weight she could lift, auditory hallucinations she heard, and anxiety she
experienced, are actually consistent with evidence in the record and cannot suffice as
clear and convincing evidence to discount her testimony. Similarly, the ALJ failed
to state whether he credited the lay testimony of Mattox’s boyfriend, and, if he did
not, to provide a clear and convincing justification for failing to do so.
Considering the medical evidence, the ALJ essentially rejected the conclusions
of Mattox’s treating physician Dr. Hutchinson and Dr. Straehley, an examining
physician, as based on Mattox’s subjective complaints. As we have explained, “[a]
physician’s opinion of disability ‘premised to a large extent upon the claimant’s own
accounts of his symptoms and limitations’ may be disregarded where those complaints
have been ‘properly discounted.’” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d
595, 602 (9th Cir. 1999) (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)).
Yet, Mattox’s complaints have not been “properly discounted” because there are no
legitimate inconsistencies, no evidence suggesting she is lying, and no evidence of any
malingering. See Smolen, 80 F.3d at 1284. In fact, objective observation and testing
bore out her complaints. Thus, under any standard, the ALJ erred in choosing to
accept a nontreating, nonexamining doctor’s opinion over that of a treating physician
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with a six-year treatment history with Mattox, as well the opinion of an examining
physician, without a legitimate reason.
Because the ALJ failed to provide reasons to not credit Mattox’s testimony and
the medical evidence, we must reverse and remand for proper consideration of the
evidence or adequate justification for its exclusion. Because of the failure to provide
adequate justification for not crediting lay testimony and medical evidence, we also
remand for consideration, pending these evidentiary determinations, of whether
Mattox met the requirements of Listing 12.04. See 20 C.F.R. Pt. 404, Subpt. P, App.
1; Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 975-76 (9th Cir. 2000)
(remanding a denial of benefits where the fact-finder erred in failing to consider lay
evidence). On remand, the evidentiary questions may also require the ALJ to
reexamine the vocational expert, posing more complete hypotheticals taking Mattox’s
actual limitations, which a proper consideration of the evidence may establish, into
account. Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988).
In sum, the ALJ erred in failing to provide clear and convincing reasons for
rejecting Mattox’s testimony regarding the severity of her symptoms, and neglecting
to provide legitimate reasons to reject the opinions of her treating and examining
physicians. These errors resulted in further errors in the consideration of whether
Mattox met a listing and the posing of legally inadequate hypotheticals to the
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vocational expert. We therefore reverse the judgment of the district court, with
instructions to remand this case to the agency for redetermination of eligibility for
benefits.
REVERSED and REMANDED WITH INSTRUCTIONS.
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