FILED
NOT FOR PUBLICATION
AUG 03 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN M. SMITH, No. 15-35114
Plaintiff-Appellant, D.C. No. 3:13-cv-06082-JRC
v. MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
J. Richard Creatura, Magistrate Judge, Presiding
Submitted July 12, 2017 **
Seattle, Washington
Before: MURPHY, *** McKEOWN, and NGUYEN, Circuit Judges.
Steven Smith appeals a district court order affirming the denial of
Social Security disability benefits by the Commissioner. He argues the
*
This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael R. Murphy, Senior Circuit Judge for the
U.S. Court of Appeals, Tenth Circuit, sitting by designation.
ALJ erroneously discounted his testimony as to pain and symptomatology
and improperly rejected favorable medical evidence.
1. The ALJ erred in rejecting Smith’s testimony as to his level of pain
and extent of symptoms because the ALJ’s reasons are not clear and
convincing or are not supported by substantial evidence. Smith’s
subjective “testimony about the intensity, persistence, and pace of”
symptoms could be rejected by the ALJ “only by offering specific, clear
and convincing reasons for doing so,” which he did not provide. Garrison
v. Colvin, 759 F.3d 995, 1014-18 (9th Cir. 2014) (quotation omitted)).
Smith also presented objective evidence of impairments which could
reasonably be expected to produce the pain and symptoms he alleged and
the ALJ did not find Smith was malingering.
An ALJ may rely on “unexplained, or inadequately explained, failure
to seek treatment” to reject alleged symptoms. Fair v. Bowen, 885 F.2d
597, 603 (9th Cir. 1989). The record in this case, however, lacks evidence
that the period between the grant of benefits and Smith’s presentation for
treatment amounted to a delay. In any event, Smith’s homelessness and the
state’s very severe funding cuts explain why the grant of benefits to Smith
did not correspond with an immediate ability to obtain treatment.
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“[D]aily activities may 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) (quotation omitted). Nevertheless, “the mere fact that a plaintiff has
carried on certain daily activities does not in any way detract from her
credibility as to her overall disability.” Id. (quotation and alteration
omitted). The ALJ’s invocation of a few random daily activities to
discredit Smith’s testimony is counter to the rule set out in Orn. The ALJ
did not make findings as to the pervasiveness of these activities, what they
entailed, or how the physical functions displayed during the activities are
transferrable to a work setting.
If a claimant provides a good reason for not taking medication, his
“symptom testimony cannot be rejected for not doing so.” Smolen v.
Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The record contains a
reasonable explanation for Smith’s hesitancy to take pain medication: he
previously attempted to commit suicide with such medication and was
advised to avoid prescription pain medication in the future. There is no
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indication the ALJ considered this explanation before drawing a negative
inference from Smith’s preference for over-the-counter pain medication. 1
According to the ALJ, Smith “reported to two health care providers
that he was in the army,” but testified to the contrary. Dr. Javel’s notes
indicate Smith told him he was in the military. Smith specifically testified
he never so stated to Dr. Javel and did not know how that information came
to be in Dr. Javel’s notes. Smith had been diagnosed with PTSD, but that
diagnosis flowed from beatings he received as a “kid.” Information about
Smith’s military service appears in Dr. Barton-Haas’s notes, but her notes
indicate she relied on Dr. Javel’s report in formulating her medical opinion.
Read as a whole, the record does not support the ALJ’s finding that Smith
falsely told two separate medical providers that he served in the military.
Smith offered a reasonable explanation for the confusion: he reported to Dr.
Javel that he had PTSD and Dr. Javel likely assumed, incorrectly, the
source of the PTSD was military service. The ALJ did not discuss Smith’s
explanation, let alone analyze it under the normal means that a fact finder
uses to assess witness credibility.
1
The ALJ erroneously found that an inconsistency between Smith’s
testimony at the first and second hearings as to the suicide attempt weighed
against his credibility. Smith was never questioned at the second hearing
about the suicide attempt.
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The ALJ’s finding that Smith’s testimony is inconsistent with his
medical records regarding DA&A, at least as to the years 2010 and 2011, is
supported by substantial evidence. Smith’s attempts to explain the
inconsistencies on the basis of confusion and/or hearing loss do not
demonstrate that this aspect of the ALJ’s credibility determination lacks
substantial evidence. These testimonial inconsistencies as to DA&A
relapse dates, however, are insufficient, standing alone, to satisfy the
rigorous Garrison standard. The Commissioner has not identified evidence
casting doubt on Smith’s assertion he was free of DA&A from 2005 until at
least 2008. Smith’s testimony was corroborated by testimony from his
uncle, which the ALJ did not discuss in his order denying benefits.
Notably, Dr. Reynolds, the independent medical expert appointed at the
order of the Appeals Council, specifically relied on the years 2005-08 to
conclude Smith’s mental disability met Listing 12.04. Although the dates
of relative sobriety cannot be specifically identified, the inconsistencies
identified by the ALJ cannot reasonably support a conclusion that DA&A
is, and always was, present in Smith’s life from 2005 until 2012. Nor does
the Commissioner argue that these testimonial inconsistencies regarding
DA&A, standing alone, are sufficient to support the ALJ’s wholesale
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rejection of all aspects of Smith’s subjective testimony as to pain and
symptomatology.
2. The record medical evidence supports Smith’s claim for disability
benefits. In rejecting that evidence, the ALJ relied on adverse credibility
findings as to Smith’s pain and symptomatology. Because the ALJ erred in
rejecting Smith’s testimony as to the extent of his symptoms and severity of
his pain, we must reject the ALJ’s treatment of the medical evidence.
There is another problem with the ALJ’s treatment of the medical
evidence. Having concluded Smith’s pain and symptoms were not as
severe as alleged, the ALJ resolved the case by projecting how medical
professionals would have testified if they had all the relevant information.
Then, the ALJ relied exclusively on medical evidence produced by Dr.
Peterson, a non-examining, non-treating psychologist who reviewed only a
limited set of Smith’s medical records. See Lester v. Chater, 81 F.3d 821,
830-31 (9th Cir. 1995) (concluding that “[t]he opinion of a non-examining
physician cannot by itself constitute substantial evidence that justifies the
rejection of the opinion of either an examining physician or a treating
physician”). The Commissioner fails to explain how this is an appropriate
course of action. Instead, in situations like these, the ALJ has a “special
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duty to fairly develop the record” so that a proper evaluation of the medical
evidence is possible. Smolen, 80 F.3d at 1288 (quotation omitted).
3. We decline Smith’s invitation to employ the “credit-as-true” rule
set out in Garrison, 759 F.3d at 1019. We exercise our discretion to
remand the matter to the ALJ for additional proceedings consistent with
this opinion. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987).
REVERSED and REMANDED.
-7-
Smith v. Berryhill, No. 15-35114 FILED
McKEOWN, Circuit Judge, dissenting: AUG 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. The Administrative Law Judge (“ALJ”) offered
specific, clear and convincing reasons supported by substantial evidence for
rejecting Steven Smith’s testimony about his symptoms. See Garrison v. Colvin,
759 F.3d 995, 1014–15 (9th Cir. 2014). On that basis, the ALJ properly discounted
the medical opinions to the extent they relied on Smith’s self-reporting. See
Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). I would affirm.