FILED
NOT FOR PUBLICATION
DEC 24 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONI ELLEN PAYTON, No. 13-16782
Plaintiff - Appellant, D.C. No. 2:12-cv-02352-NVW
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted October 23, 2015
San Francisco, California
Before: HAWKINS, SILVERMAN, and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Joni Payton seeks review of the denial of her application for Supplemental
Security Income disability benefits. We have jurisdiction under 28 U.S.C. § 1291,
and we reverse and remand for calculation and award of benefits.1
Four treating physicians opined that Payton is disabled. Two state agency
physicians reviewed Payton’s medical record and concluded that she is not
disabled. The ALJ credited the two reviewing physicians’ opinions over the four
treating physicians’ opinions, but provided insufficient reasons for doing so. The
two reviewing physicians did not review Payton’s entire medical record, and their
opinions should be discounted to some degree because neither of them examined
Payton. 20 C.F.R. § 404.1527(c)(1). Further, the ALJ did not provide “specific
and legitimate” reasons to reject the four treating physicians’ opinions. Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1995). For example, the ALJ discounted the
treating physicians’ opinions because they opined on the ultimate issue of
disability, but “[i]n disability benefits cases . . . physicians may render medical,
clinical opinions, or they may render opinions on the ultimate issue of
disability—the claimant’s ability to perform work.” Garrison v. Colvin, 759 F.3d
995, 1012 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.
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Because the parties are familiar with the facts we do not recount them
here.
2
1998)). The ALJ also speculated that the treating physicians supported Payton’s
application for benefits out of sympathy or to avoid tension with her. There is no
support for this suggestion. Other reasons cited by the ALJ for discounting the
treating physicians’ opinions were merely conclusory statements with no
supporting explanation or examples. Id. at 1012–13 (Where an ALJ “rejects a
medical opinion or assigns it little weight while doing nothing more than ignoring
it, asserting without explanation that another medical opinion is more persuasive,
or criticizing it with boilerplate language that fails to offer a substantive basis for
his conclusion,” he errs.).
The ALJ found that Payton lacked credibility, but the reasons he gave for
this finding were not sufficiently specific, clear, and convincing. Burrell v. Colvin,
775 F.3d 1133, 1136 (9th Cir. 2014). For example, the ALJ concluded that
Payton’s symptoms were likely not as debilitating as she claimed because, at times,
some of her symptoms responded to treatment, allowing her to carry on daily
activities. But “[o]ccasional symptom-free periods” are not necessarily inconsistent
with Payton experiencing chronic, disabling pain, Lester, 81 F.3d at 833, and
“impairments that would unquestionably preclude work and all the pressures of a
workplace environment will often be consistent with doing more than merely
resting in bed all day,” Garrison, 759 F.3d at 1016. The ALJ also concluded from
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the fact that Payton failed to stop smoking that her respiratory symptoms were not
as severe as alleged, but her failure to stop smoking may only indicate that Payton
is addicted to tobacco.
The vocational expert testified that based on Payton’s symptom testimony
she “would not be able to sustain competitive employment.” The medical evidence
from Payton’s four treating physicians supports this conclusion. We remand to the
ALJ for calculation and award of benefits.
REVERSED AND REMANDED.
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