FILED
NOT FOR PUBLICATION
JUL 21 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE W. ALBERTSON, JR., No. 13-56245
Plaintiff - Appellant, D.C. No. 2:12-cv-02508-JPR
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Jean Rosenbluth, Magistrate Judge, Presiding
Argued and Submitted April 7, 2016
Pasadena, California
Before: TASHIMA, SILVERMAN, and GRABER, Circuit Judges.
Bruce Albertson applied for disability benefits in January 2009, claiming a
chronic headache. The administrative law judge (“ALJ”) found that Albertson did
not testify credibly about the extent of his pain and the effect that it would have on
his ability to work. Accordingly, the ALJ denied benefits. Albertson appealed,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and the district court affirmed.1 We have jurisdiction under 28 U.S.C. § 1291. We
reverse and remand for an award of benefits.
BACKGROUND
Claimant Bruce Albertson developed a sudden headache in October 2007.
The pain was so severe that his wife took him to the emergency room. Albertson
had no prior history of headaches, and the emergency doctors could not determine
the headache’s cause. The headache has persisted ever since.
Seeking a diagnosis, Albertson consulted with a series of doctors, including
at least eight neurologists, over a period of three years. The doctors were unable to
settle on a conclusive diagnosis. Albertson’s pain did not improve with medication
or other treatment, including an extended course of opiate painkillers, two occipital
nerve blocks, and a radiofrequency ablation.
In January 2010, Albertson sought treatment at the Mayo Clinic. There, he
was diagnosed with New Persistent Daily Headache (“NPDH”), a new headache
1
While that appeal was pending, Albertson applied for disability
benefits a second time, for the period beginning the day after the first ALJ’s
adverse decision. Relying on nearly the same record as in the first proceedings, the
second ALJ found Albertson disabled and awarded benefits. We issued a limited
remand of the pending appeal, allowing the district court to consider a motion to
set aside its previous decision under Federal Rule of Civil Procedure 60(b). The
district court denied the motion, and Albertson again appealed. The two appeals
— from the affirmance of the first ALJ’s adverse decision and the denial of the
Rule 60(b) motion — were consolidated for our review.
2
occurring in a person who does not have a past history of frequent headaches,
which persists on a daily basis for more than three months. The disorder is
characterized by its sudden onset. The Mayo team believed that Albertson’s
previous pain prescriptions had exacerbated the headaches and recommended a
different course of medication. The ALJ denied Albertson’s application for
benefits soon after.
ANALYSIS
1.
Where a claimant “has presented evidence of an underlying impairment and
the government does not argue that there is evidence of malingering,” we review
an ALJ’s rejection of the claimant’s testimony “for specific, clear and convincing
reasons.” Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (footnote and
internal quotation marks omitted). “This is not an easy requirement to meet: ‘The
clear and convincing standard is the most demanding required in Social Security
cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v.
Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). Here, NPDH was
a diagnosed, underlying impairment. And the ALJ determined that “the claimant’s
medically determinable impairments could reasonably be expected to cause the
alleged symptoms . . . .” Albertson v. Colvin, No. CV 12-2508-JPR, 2013 WL
3
2251639, at *16 (C.D. Cal. May 22, 2013). Therefore, the ALJ was required to
present specific, clear, and convincing reasons to reject Albertson’s testimony
about the extent of his NPDH-related symptoms. Yet, the ALJ never mentioned the
NPDH diagnosis. In fact, the ALJ never even mentioned that Albertson was seen
at the Mayo Clinic, much less what the Mayo Clinic’s diagnosis was. This was
error. See Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007) (“[A]n
ALJ cannot avoid” the required deference to the treating physician’s opinion
“simply by not mentioning the treating physician’s opinion and making findings
contrary to it.”).
The ALJ relied on the fact that Albertson could do basic household chores
and occasionally run errands to support a finding that Albertson’s pain did not
interfere with his daily activities. “We have repeatedly warned that ALJs must be
especially cautious in concluding that daily activities are inconsistent with
testimony about pain, because 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.
Albertson testified that most of his day is spent laying down; he no longer
socializes and avoids driving as much as possible. He cannot help with laundry or
childcare. That Albertson could run errands or do chores on occasion is consistent
4
with testimony that he experiences constant mid-level pain that spikes to nearly
unmanageable levels about twice per week. Cf. id. (“The ability to talk on the
phone, prepare meals once or twice a day, occasionally clean one’s room, and, with
significant assistance, care for one’s daughter, all while taking frequent hours-long
rests . . . and lying in bed most of the day” was consistent with a claim of
debilitating pain.). The ALJ did not provide specific, clear, and convincing reasons
to reject Albertson’s testimony.
The ALJ articulated no other reasonable basis for rejecting Albertson’s pain
testimony. Moreover, taken as a whole, the record strongly corroborates
Albertson’s credibility. Albertson continually sought treatment, asking for second,
third, and fourth opinions when his original team was unable to identify the cause
of his pain. Because Albertson had seen at least eight neurologists prior to the
hearing, the record includes an extensive medical history documenting Albertson’s
consistently high levels of pain over time. There is no indication in the record that
Albertson’s physicians disbelieved his complaints; rather, they continued to adjust
his medications, order new tests, and even performed minor surgery to discover the
cause of Albertson’s complaints. Finally, Albertson’s record shows a high rate of
compliance with the varying courses of treatment his doctors prescribed. Cf. Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (noting that permissible reasons to
5
find a claimant’s testimony not credible include an unexplained failure to seek
treatment or comply with a prescribed treatment). The ALJ’s adverse credibility
determination was not supported by the record, and therefore failed to satisfy the
requirement of providing a specific, clear, and convincing reason to discredit
Albertson’s pain-related tesimony. Garrison, 759 F.3d at 1016.
2.
“[I]n appropriate circumstances courts are free to reverse and remand a
determination by the Commissioner with instructions to calculate and award
benefits.” Id. at 1019. Under the three-part “credit-as-true” standard, we remand
for benefits if each of the following conditions is satisfied:
(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to
provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be required
to find the claimant disabled on remand.
Id. at 1020. The decision to remand for an award of benefits is always
discretionary, and the court may decline to award benefits if there is “serious
doubt” the petitioner is disabled. Id. at 1021. Here, Albertson meets all three
conditions of the credit-as-true standard.
6
First, Albertson provides us with an expansive, and remarkably consistent,
record; the Commissioner proffers no evidentiary conflict requiring further
development. Second, as discussed above, the ALJ failed to provide legally
sufficient reasons to support his adverse credibility determination. Third, as in
Garrison, “the strength of the improperly discredited evidence, which we credit as
true” requires a finding of disability on remand. Id. at 1022. After years of inquiry
and a battery of tests, a team of doctors at the Mayo Clinic diagnosed Albertson
with a rare disorder. Albertson testified that, as a result of this disorder, he has
debilitating pain at least twice per week and is bed-ridden most days. At
Albertson’s hearing, the vocational expert agreed that if Albertson were to be
absent more than three times per month due to pain, he would not be able to hold
any job in the national economy. This is sufficient to require that the ALJ find
Albertson disabled on remand.2 Id. at 1021 n.28. There is no “serious doubt” that
Albertson is disabled. Id. at 1021.
• ! •
2
The second ALJ to hear Albertson’s claim considered the same
medical evidence before us on appeal. That ALJ found Albertson disabled.
Although, of course, we are not bound by the second ALJ’s decision, it is
consistent with our conclusion that the evidence requires a finding of disability in
this case.
7
The judgment of the district court is reversed and remanded with instructions
that the district court further remand this case to the Commissioner for the
calculation and award of benefits.3
REVERSED and REMANDED.
3
We dismiss as moot the consolidated appeal from the district court’s
denial of Albertson’s Rule 60(b) motion. See City of Erie v. Pap’s A.M., 529 U.S.
277, 287 (2000).
8
FILED
Circuit Judge Graber
JUL 21 2016
Albertson v. Colvin, No. 13-56245 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent.
In January 2011, the first ALJ denied benefits. More than two-and-a-half
years later, a second ALJ granted benefits. In my view, the decision of the first
ALJ was supported by substantial evidence and contained no legal error, and the
two outcomes can be reconciled.
The majority asserts that the first ALJ ignored Claimant’s Mayo Clinic
visits. That assertion is incorrect. The ALJ cited the Mayo Clinic reports in noting
that Claimant gave "a history of a mass on the right side of the forehead and
chronic headaches since October 2007." AR 21 (citing AR 627). The ALJ
found—consistent with the cited Mayo Clinic reports—that Claimant had the
severe impairment of chronic headaches; the pivotal question was whether, in
January 2011, the ALJ permissibly found that those headaches did not rise to the
level of disability. In analyzing that question the ALJ again cited, among other
sources in the record, the Mayo Clinic reports—when noting that Claimant’s daily
activities and social interactions were not impaired by his mental or physical
conditions. AR 24 (citing AR 614-28) (Mayo Clinic reports stating that Claimant
reported no impairment in activity or social interactions). After considering all the
medical evidence, the first ALJ permissibly weighed that evidence and explained
in appropriate detail why he credited some physicians over others.
The first ALJ also permissibly found Claimant not fully credible as to his
level of pain. Among other reasons, objective medical evidence did not support
the claim of disabling headaches; conservative treatment for the headaches
"seemed to help" (AR 25); and significant activities of daily living showed no
physical restrictions. The ALJ also gave supported reasons to find that Claimant
could perform light work despite the severe impairment of headaches—among
other things, an expert so opined.
Even if the first ALJ’s decision were incorrect, the standard for remanding
for an award of benefits is not met because there is doubt about Claimant’s
disability during the relevant period. For example, Claimant continued to work for
at least a year after he alleges the headaches began in 2007, quitting only after the
family business, a car dealership, closed in 2008. At the first hearing Claimant
testified that he worked through the end of 2008 and later received bonuses on
account of his 2008 performance, which were paid in 2009.
Additionally, the decisions of the two ALJs can be reconciled. The first one
permissibly found Claimant’s extent-of-pain testimony not fully credible, while the
second ALJ credited Claimant and examined additional medical evidence.
Moreover, the first ALJ observed that Claimant testified that his headaches were
2
"becoming more severe" (AR 24; see also AR 188, where Claimant reported that
his migraines had gotten worse), and a worsening of symptoms over time also
allows the decisions to be reconciled.
For all those reasons, I cannot join the majority disposition.
3