FILED
NOT FOR PUBLICATION JAN 04 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH FITZGERALD PALMER, No. 13-16886
Plaintiff - Appellant, D.C. No. 2:12-cv-01786-JAT
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, Senior District Judge, Presiding
Argued and Submitted November 19, 2015**
San Francisco, California
Before: NOONAN, WARDLAW, and PAEZ, Circuit Judges.
Kenneth Palmer (“Palmer”) appeals the district court’s decision affirming
the Administrative Law Judge’s (“ALJ”) denial of supplemental security income
(“SSI”) benefits. We reverse and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The ALJ failed to properly analyze the medical opinion testimony. Most
importantly, the ALJ’s decision did not discuss the opinion of Palmer’s treating
psychologist, Dr. V. Abhyanker. This was error. An ALJ may not “avoid the[]
requirements” of providing specific and legitimate reasons for rejecting a doctor’s
opinion “simply by not mentioning the treating physician’s opinion.” Lingenfelter
v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007); see also Marsh v. Colvin, 792
F.3d 1170, 1172-73 (9th Cir. 2015). The failure to consider Dr. Abhyanker’s
testimony was not harmless because the vocational expert (“VE”) testified that
with the limitations Dr. Abhyanker identified, Palmer would be unable to sustain
employment.
2. The ALJ’s improper rejection of Dr. Abhyanker’s opinion was compounded
by two additional errors. First, substantial evidence does not support the ALJ’s
decision to discount treating pain specialist Dr. John Porter’s assessment that
Palmer’s pain would “frequently” interfere with attention and concentration. Even
Dr. Brent Geary, a state agency doctor whose opinion the ALJ claimed
contradicted Dr. Porter’s assessment, noted that Palmer exhibited “significant
difficulty with orientation, maintenance of attention and concentration.” Thus,
contrary to the ALJ’s finding, the record did support Dr. Porter’s pain assessment.
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This error was not harmless because the VE testified that a person with the
concentration limitations identified in Dr. Porter’s pain assessment, combined with
Palmer’s physical limitations, would “have difficulty sustaining employment.”
3. Second, the ALJ erred by disregarding Palmer’s subjective pain testimony in
the absence of malingering without giving “clear and convincing reasons,
supported by evidence in the record.” Brown-Hunter v. Colvin, 806 F.3d 487, 489
(9th Cir. 2015). The ALJ pointed to the “assessments of the state agency medical
consultants” as supporting his rejection of Palmer’s pain testimony. But those
consultants focused on Palmer’s mental impairments and made no specific findings
about his pain levels. Thus, their assessments do not constitute “clear and
convincing evidence.” This error was not harmless because the VE testified that a
person with “moderately severe pain” like that described by Palmer “could not
sustain employment on an ongoing basis.”
4. Based on the errors identified above, we reverse and remand for an award of
benefits. The record in this case, which includes the opinions of multiple treating
physicians, has “been fully developed and further administrative proceedings
would serve no useful purpose.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.
2014). The ALJ “failed to provide legally sufficient reasons for rejecting” Dr.
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Abhyanker and Dr. Porter’s opinions and Palmer’s testimony. Id. The testimony
of the VE makes clear that “if the improperly discredited evidence were credited as
true, the ALJ would be required to find [Palmer] disabled on remand.” Id.
Because the record as a whole does not “create[] serious doubt that [Palmer] is, in
fact, disabled,” id. at 1021, a remand for an award of benefits is appropriate.
REVERSED AND REMANDED.
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