FILED
NOT FOR PUBLICATION
OCT 19 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIOLA VAN WECHEL, No. 14-35673
Plaintiff-Appellant, D.C. No. 2:13-cv-03079-TOR
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Submitted October 6, 2017**
Seattle, Washington
Before: WARDLAW, CLIFTON, and OWENS, Circuit Judges.
Viola Van Wechel appeals the district court’s grant of summary judgment in
favor of the Commissioner, which affirmed the administrative law judge’s (“ALJ”)
denial of her claim for Social Security disability benefits. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
pursuant to 28 U.S.C. § 1291, and we reverse and remand for the calculation and
award of benefits.
The ALJ improperly discounted the opinions of a treating and an examining
physician. The ALJ’s decision rejected their opinions in boilerplate language
asserting they were at odds with “objective” medical evidence and were based on
the claimant’s subjective complaints. Assigning a medical opinion little weight
without explanation or analysis is error. Garrison v. Colvin, 759 F.3d 995, 1012
(9th Cir. 2014) (holding that an ALJ errs when he “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”). The
ALJ also found that the treating and examining physicians’ opinions conflicted
with a therapist’s notes but failed to explain how the reports conflicted. See id. A
review of the record fails to reveal a substantial conflict between the physicians’
opinions and the therapist’s notes. Finally, the ALJ credited the evaluations of
non-examining physicans over these opinions, but failed to provide specific and
legitimate reasons for doing so. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
1995).
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The ALJ also erroneously found that Van Wechel lacked credibility by
failing to give “‘specific, clear, and convincing reasons for rejecting’ the
testimony,” and by failing to identify “‘which testimony the ALJ found not
credible’ and ‘explaining which evidence contradicted that testimony.’” Laborin v.
Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (quoting Brown-Hunter v. Colvin,
806 F.3d 487, 489, 494 (9th Cir. 2015)). Moreover, it is clear from the record that
Van Wechel’s testimony is credible. No doctor suggested Van Wechel
exaggerated or lied about her symptoms or opined that her described symptoms
were contradicted by her daily activities. And none of her daily activities, such as
going grocery shopping once a week or driving a car, indicates she has a greater
functional capacity than she described. See Vertigan v. Halter, 260 F.3d 1044,
1050 (9th Cir. 2001) (“This court has repeatedly asserted that the mere fact that a
plaintiff has carried on certain daily activities, such as grocery shopping, driving a
car, or limited walking for exercise, does not in any way detract from her
credibility as to her overall disability.”). The ALJ’s error was not harmless
because if the ALJ credited Van Wechel’s testimony and properly weighed the
physicians’ opinions, as explained in further detail below, the ALJ would have
found Van Wechel disabled.
3
If a reviewing court concludes “that the agency erred in some respect in
reaching a decision to deny benefits, and the error was not harmless, sentence four
of [42 U.S.C.] § 405(g) authorizes the court to ‘revers[e] the decision of the
Commissioner . . . with or without remanding the cause for a rehearing.’”
Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)
(second alteration in original) (citations omitted). Though ordinarily “the proper
course [of action] . . . is to remand to the agency for additional investigation or
explanation,” id. (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985)), courts may “reverse or modify an administrative decision without
remanding the case for further proceedings” in appropriate circumstances, id. at
1099–1100 (quoting Harman v. Apfel, 211 F.3d 1172, 1177–78 (9th Cir. 2000));
see also 42 U.S.C. § 405(g). Generally, such “appropriate circumstances” exist
“where no useful purpose would be served by further administrative proceedings
and the record has been thoroughly developed.” Id. at 1100 (quoting Hill v.
Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012)).
We have established a “credit-as-true” rule to determine whether
“appropriate circumstances” exist. Under the “credit-as-true” rule, a court asks: (1)
whether the record has been fully developed such that further administrative
proceedings would serve no useful purpose; (2) whether the ALJ has failed to
4
provide legally sufficient reasons for rejecting evidence; and (3) whether, if the
improperly discredited evidence were credited as true, the ALJ would be required
to find the claimant disabled on remand. Garrison, 759 F.3d at 1020.
Van Wechel satisfies all three conditions. The record in this case includes
hundreds of pages of medical reports, Van Wechel’s testimony before the ALJ and
her responses to written questionnaires, and an assessment of her capacity to
perform work completed by a treating physician.
If the improperly discredited evidence were credited as true, the ALJ would
be required to find Van Wechel disabled on remand. The vocational expert
explicitly testified that a person with the impairments described by Van Wechel
could not work. Such a finding by the vocational expert is a sufficient basis upon
which to remand for determination of benefits. The ALJ also opined that if the
treating doctor’s residual functional capacity findings were true, he would find Van
Wechel disabled. Given this fully developed record, the admission of more
evidence would not be “enlightening.” Treichler, 775 F.3d at 1101. Accordingly,
5
Van Wechel satisfies the requirements of the credit-as-true standard and we
remand to the ALJ for calculation and award of benefits.1
REVERSED; REMANDED FOR AN AWARD OF BENEFITS.
1
Because we so hold, we need not decide whether the ALJ had a duty to
consider Listing 12.05(C) or whether the ALJ improperly weighted non-medical
evidence from two social workers.
6