NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BARBARA WEBBER, No. 14-35312
Plaintiff-Appellant, D.C. No. 2:13-cv-00890-RSL
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted October 5, 2016
Seattle, Washington
Before: W. FLETCHER, FISHER, and N.R. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Barbara Webber appeals from a denial of supplemental security income
under Title XVI of the Social Security Act.1 She alleges that the Administrative
Law Judge (“ALJ”) improperly discounted testimony from her and her examiners,
which then allowed the ALJ to pose to the vocational expert an incomplete
hypothetical that omitted her reports of daily crying. Because the ALJ’s errors in
finding Ms. Webber not credible raise serious doubts as to whether there was
substantial evidence for denial of benefits, we reverse the district court and remand
to the ALJ.
We must uphold the Social Security Administration's disability
determination unless it contains legal error or is not supported by substantial
evidence. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006);
42 U.S.C. §§ 405(g), 1383(c)(3). If a claimant has produced objective medical
evidence of an impairment, and if the ALJ did not find “affirmative evidence” of
malingering, “the ALJ can reject the claimant’s testimony about the severity of her
1
Appellant's excerpts of record were filed under seal in this Court in
2014 pursuant to a notice of filing under seal rather than a motion for permission to
seal, based solely on the fact that the documents had been sealed in the district
court pursuant to local rule. As of April 4, 2016, Interim Ninth Circuit Rule 27-
13(a) provides that documents in social security cases, including administrative
records, are not filed under seal in this Court, though they are otherwise restricted
pursuant to Fed. R. App. P. 25(a)(5) and Circuit Rule 5.2(c). To the extent that this
disposition addresses matters contained in the previously sealed excerpts of record,
we hereby unseal the excerpts with respect to that information.
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symptoms only by offering specific, clear, and convincing reasons for doing so.”
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
Many of the ALJ’s factual and legal bases for discrediting Ms. Webber’s
testimony and evidence were in error:
1. The ALJ asserted that Ms. Webber had only begun complaining of
depression “a couple of weeks before she filed her SSI application” in September
2010. However, the record contains a depression diagnosis in November 2009.
2. The ALJ found that Ms. Webber did not indicate any problems with
memory in her first and second function reports. However, Ms. Webber indicated
in the first function report that she “sometimes” needed help or reminders to take
medicine and stated in the second report that she needed “special reminders to take
care of personal needs and grooming” and “reminders taking medicine.”
3. The ALJ found inconsistency between Ms. Webber’s testimony that she
did not shop or do laundry and statements in her function reports that “she did
both.” But any change in these capacities between the function reports and the
hearing can be explained by a deteriorating condition over time. Moreover, what
Ms. Webber actually said in the first function report was that “she could clean and
wash clothes when “able”—not that she did so regularly.
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4. The ALJ found inconsistency between Ms. Webber’s testimony that she
did not dress her grandchildren for school and her earlier statement that she did so.
However, Ms. Webber testified at her hearing that she did not help her
grandchildren get ready for school “any more” because at the ages of five and six,
they could “pretty much dress themselves.”
5. The ALJ cited Ms. Webber’s statements about having a very busy
weekend as evidence that “claimant is more active than she portrayed.” However,
daily activities may only “be grounds for an adverse credibility finding if a
claimant is able to spend a substantial part of his day engaged in pursuits involving
the performance of physical functions that are transferable to a work setting.” Orn
v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (internal citations and quotation marks
omitted). The record shows that Ms. Webber spent her days primarily watching
TV, reading, and visiting the doctor. Our case law would not permit discrediting a
claimant on these facts. See id. (stating that “reading, watching television, and
coloring in coloring books are activities that are so undemanding that they cannot
be said to bear a meaningful relationship to the activities of the workplace”);
Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) (holding that a
claimant’s ability to “go grocery shopping with assistance, walk approximately an
hour in the malls, get together with her friends, play cards, swim, watch television,
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and read . . . does not in any way detract from her credibility as to her overall
disability”).
6. The ALJ found inconsistencies in Ms. Webber’s reports of suicidal
ideation. But in each cited instance, Ms. Webber was only reporting her mental
state at different times. She told Dr. Widlan that she once had suicidal ideations
but did not at the time. She told Neighborcare a few months later that she was
having thoughts of suicide. Several months after that, she reported to Dr. Parker
that she did not have suicidal ideations at present. Because the reports dealt with
different times, they were not inconsistent.
Ms. Webber concedes that she was inconsistent in her reports to her
healthcare providers concerning her marijuana use. We have said that “conflicting
or inconsistent testimony concerning alcohol use can contribute to an adverse
credibility finding.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir.
2006); see also Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). However,
in this case, the ALJ did not use inconsistent reports of drug use as a basis for
finding Ms. Webber generally incredible, but instead used the failure to report
marijuana use as a basis for discrediting Dr. Widlan’s report. Because we review
only the reasons provided by the ALJ and may not affirm the ALJ based on a
ground upon which she did not rely, see Connett v. Barnhart, 340 F.3d 871, 874
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(9th Cir. 2003), we cannot affirm the ALJ’s adverse credibility finding based on this
inconsistency.
The errors above warrant remand because Ms. Webber’s case turned upon the
ALJ’s adverse credibility finding. Absent this finding, the ALJ could not have
omitted Ms. Webber’s reported crying spells from her hypothetical. See Russell v.
Sullivan, 930 F.2d 1443, 1445 (9th Cir. 1991) (“Hypothetical questions posed to a
vocational expert must set out all the limitations and restrictions of the particular
claimant, including pain and an inability to engage in certain activities.”). Because
the vocational expert testified that someone who routinely but unpredictably cried
several times a day would face prohibitive difficulty maintaining employment, the
ALJ would have had to award benefits had she found the claimant credible.
On remand, the ALJ must render a new credibility finding in conformity with
Social Security Ruling 16-3p (effective March 28, 2016), which states that “[i]n
evaluating an individual’s symptoms, our adjudicators will not assess an
individual’s overall character or truthfulness in the manner typically used during an
adversarial court litigation.” The ALJ should reconsider, as appropriate, the weight
assigned to certain third-party medical opinions that had earlier been discounted due
to Ms. Webber’s perceived lack of credibility.
REVERSED and REMANDED.
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