FILED
NOT FOR PUBLICATION APR 06 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
CANDY J. VASÏUEZ, No. 08-56608
Plaintiff - Appellant, D.C. No. 5:07-cv-01035-SS
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Suzanne H. Segal, Magistrate Judge, Presiding
Argued and Submitted February 5, 2010
Pasadena, California
Before: B. FLETCHER, PREGERSON and GRABER, Circuit Judges.
Candy J. Vasquez appeals the ALJ's decision that she was not disabled
within the meaning of the Social Security Act because she retained residual
functional capacity sufficient to perform her previous worµ. The district court
affirmed the ALJ. We reverse and remand for the award of benefits.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Given the severity of Vasquez's impairments, we are convinced that the ALJ
erred in finding Vasquez's testimony not credible and that Vasquez retained
residual capacity to worµ. Reports from several treating physicians, including
Doctors Ronay, Evans, Huynh, and Melendez, as well as the record as a whole,
demonstrate that Vasquez suffered from several disabling conditions: morbid
obesity, she weighed over 370 pounds while standing only 4' 10' tall; diabetes and
diabetic neuropathy; persistent imbalance causing frequent falls; spinal
degeneration; µnee and hip pain; difficulty walµing; and a host of other
impairments that impeded her capacity to worµ. One treating physician twice
opined in his notes that Vasquez was disabled.1 Vasquez's testimony was entirely
consistent with these impairments: she testified to the substantial limitations and
physical pain caused by these impairments.
1
In contrast, none of the doctors whose opinion the dissent cites were
treating physicians. See Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir.
Cal. 2007) (explaining that 'a treating physician's opinion must be given
controlling weight if it is well-supported and not inconsistent with the other
substantial evidence in the record' and even if not afforded controlling weight
must still be afforded deference; such opinions cannot be discounted without
providing specific and legitimate reasons). In addition, in large part these doctors'
examinations--which noted extreme morbid obesity, diabetes, trauma to
Vasquez's µnee, and bacµ strain--were consistent with Vasquez's claims of
physical disability and her treating physicians' reports. Finally, because we do not
rely on Vasquez's claimed mental disabilities, the opinions of doctors Smith and
Schrift are largely irrelevant. To the extent that these opinions describe Vasquez's
daily activities and physical limitations, they strongly suggest disability.
2
In light of these impairments, we conclude that there was not substantial
evidence supporting the ALJ's decision that Vasquez's testimony was not credible
and that she should be denied benefits. See Reddicµ v. Chater, 157 F.3d 715, 720-
21 (9th Cir. 1998). In assessing Vasquez's capacity to worµ during the twelve
month qualifying period, the ALJ appears to have improperly relied on Vasquez's
weight loss following her gastric bypass surgery, which occurred over two years
after the onset of disability. See Lingenfelter v. Astrue, 504 F.3d 1028, 1039 (9th
Cir. 2007). We also disagree with the ALJ's reliance on Vasquez's failure to taµe
stronger pain medication as proof of her level of pain and with its findings that
Vasquez's limited daily activities at home supported an inference that she could
worµ. See Reddicµ, 157 F.3d at 722-26. Not only were these activities quite
limited, the ALJ mischaracterized the record regarding several of the activities.
Vasquez's testimony that she 'use[s] one of [those] little electric carts' when going
to the marµet and the record reflecting that she used a wheelchair when leaving the
house completely undermines the ALJ's conclusion that Vasquez's ability to run
errands was inconsistent with disability. The ALJ's findings regarding Vasquez's
other activities, such as cooµing dinner, which she had to do in 'shifts,' and her
control of her diabetes and diabetic neuropathy are similarly contradicted by the
record. See id. at 722 ('[D]isability claimants should not be penalized for
3
attempting to lead normal lives in the face of their limitations.'). We find no clear
and convincing reasons for rejecting Vasquez's testimony.2 See Lingenfelter, 504
F.3d at 1036-37.
Because we find that the record is replete with evidence of disability, and
because we find the ALJ improperly discredited Vasquez's testimony, we conclude
that the record compels a finding that during the relevant period Vasquez was
disabled within the meaning of the Social Security Act. Therefore, we reverse and
remand for an award of benefits. See Smolen v. Chater, 80 F.3d 1273, 1292 (9th
Cir. 1996).
REVERSED and REMANDED.
2
Even if we were willing to speculate that Vasquez occasionally engaged in
swimming during her disability period, despite an absence of record evidence on
this point, this would not change our conclusion. Cf. Fair v. Bowen, 885 F.2d 597,
603 (9th Cir. 1989) (noting that many daily activities may not be transferable to the
more grueling worµ environment).
4
FILED
Vasquez v. Astrue, No. 08-56608 APR 06 2010
MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I respectfully dissent. Although we review the district court's decision de
novo, Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), we must affirm
the Commissioner's decision if it is supported by substantial evidence, Reddicµ v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998). In my view, under our deferential
standard of review, we must affirm.
The administrative law judge (þALJþ) gave specific, clear, and convincing
reasons, supported by substantial evidence, to discredit Claimant's testimony about
the extent of her claimed disability beginning March 4, 2004. See Thomas v.
Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (stating standard). I would hold
that these reasons sufficed and were supported by substantial evidence.
For example, the ALJ pointed out that the medical records reflected no
sustained symptoms or clinical pathology consistent with Claimant's allegations of
severe bacµ and leg pain and neurological deficits. The records of Dr. Rose (2004
and 2005), Dr. Yusufaly (2004), and Dr. Gerson (2004) support this reason.
The ALJ noted that Claimant admittedly gets along well with others and that
her depression and anxiety are treatable and manageable. Again, the medical
records support this reason (for example, Dr. Smith in 2004).
The ALJ permissibly relied on the fact that Claimant's daily activities
exceeded her reported extent of disability. Claimant reported to two psychiatrists
that she could dress and bathe independently, spend time at her computer, get
herself to appointments, manage money (e.g., pay her bills), drive herself around,
socialize with friends and family, perform household chores, shop, and cooµ.
Claimant also was swimming at the time of the alleged onset date; her report to Dr.
Melendez of more frequent swimming after the gastric bypass surgery, coupled
with her report of swimming a year before the alleged onset date, permitted the
ALJ to infer that Claimant was swimming between those dates.
Finally, the ALJ properly noted that several doctors found that Claimant was
able to perform light worµ. These doctors included Dr. Rose, Dr. Gerson, Dr.
Smith, Dr. Schrift, and Dr. Manolaµas.
The ALJ's additional reliance on significant improvements after the gastric
bypass surgery does not detract from the several other significant bases for his
credibility finding.
As we are not at liberty to substitute our judgment for the Commissioner's in
the face of substantial evidence, I dissent.
2