NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 7 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARET MARTINEZ, No. 16-15757
Plaintiff-Appellant, D.C. No. 1:14-cv-01548-SMS
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Sandra M. Snyder, Magistrate Judge, Presiding
Submitted November 14, 2017**
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and SESSIONS,*** District
Judge.
Margaret Martinez appeals the district court’s order affirming the denial by
*
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).
***
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
an administrative law judge (“ALJ”) of her application for Social Security
disability benefits. We reverse and remand for the calculation of benefits.
I.
Martinez’s treating psychiatrists, Drs. Norberto Tuason and Robert Ensom,
opined that Martinez had mental health limitations including Depression Recurrent
Severe with Psychotic Features and Posttraumatic Stress Disorder that would
prevent her from working. Martinez’s treating primary care physicians, Drs.
Antonio Villalvazo and Jacob Peters, opined that Martinez’s pain from
degenerative disc disease also would prevent her from working. The ALJ failed to
give specific and legitimate reasons supported by substantial evidence to reject any
of these treating doctors’ opinions. See Reddick v. Chater, 157 F.3d 715, 725 (9th
Cir. 1998) (articulating the standard for discounting a treating physician’s
contradicted opinion); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996)
(explaining why treating physicians’ opinions receive special consideration).
A. Treating Psychiatrist Dr. Tuason
Dr. Tuason opined that Martinez had “extreme” limitations in her psychiatric
functioning across a range of areas related to her ability to work, where “extreme”
was defined as an “almost constant impact on work or total limitation.”
The ALJ erred in disregarding Dr. Tuason’s opinion based on a lack of
findings included on the psychiatric opinion form he filled out, because Dr.
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Tuason’s opinion was supported by his treatment records. See Garrison v. Colvin,
759 F.3d 995, 1013 (9th Cir. 2014). The ALJ isolated two treatment notes that
reflected some improvements, rather than considering the treatment records as a
whole, which showed the severity of Martinez’s condition and supported Dr.
Tuason’s opinion. See id. at 1017; Holohan v. Massanari, 246 F.3d 1195, 1205
(9th Cir. 2001). And although the ALJ discounted Dr. Tuason’s opinion on the
ground that it conflicted with the findings of examining physician Dr. Swanson,
the ALJ did not identify any meaningful conflict because he did not address either
Dr. Swanson’s memory testing, which placed Martinez in the thirteenth and third
percentiles in immediate and delayed memory, or Dr. Tuason’s repeated diagnosis
of Depression Recurrent Severe with Psychotic Features and Posttraumatic Stress
Disorder.
B. Treating Psychiatrist Dr. Ensom
Dr. Ensom opined that Martinez had “significant” impairments in her
memory, concentration, and judgment and “significant” confusion and mood
swings. “Significant” in this context was defined as an abnormality that impairs an
“individual’s ability to perform simple work for two hours at a time or for eight
hours a day.” Dr. Ensom documented a range of behaviors inconsistent with the
working environment.
As he had with Dr. Tuason, the ALJ cited two treatment notes, taken out of
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context, as inconsistent with Dr. Ensom’s opinion. The ALJ concluded that Dr.
Ensom’s opinion conflicted with the findings of Dr. Swanson, but did not identify
any meaningful conflict. See Garrison, 759 F.3d at 1012-13. And the ALJ cited
some evidence that Martinez was engaged in daily activities, but it appears those
activities were largely aspirational and, in any event, the activities do not suggest
that Martinez could function in the workplace. See Reddick, 157 F.3d at 722-23;
Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
C. Treating Physician Dr. Villalvazo
Dr. Villalvazo opined that Martinez could not perform full-time work at any
level of exertion, primarily because of pain from her degenerative disc disease. He
explained that she could sit for one or two hours, stand or walk for 30 minutes, and
had to lie down for four hours in an eight-hour day.
Although the ALJ gave Dr. Villalvazo’s opinion no weight, the ALJ did not
cite specific, objective evidence that was actually inconsistent with Dr.
Villalvazo’s opinion. In particular, Dr. Wagner’s observations as to Martinez’s
mobility do not necessarily conflict with Dr. Villalvazo’s opinion. The diagnostic
imaging showed more severe degenerative disc disease than acknowledged by the
ALJ. And while the ALJ faulted Dr. Villalvazo for relying on Martinez’s
subjective complaints, the ALJ lacked an adequate basis to conclude that Dr.
Villalvazo’s opinion relied on subjective complaints. In any event, as explained
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below, the ALJ did not provide adequate reasons for discounting Martinez’s
testimony, so Martinez’s self-reports do not provide an adequate basis to disregard
Dr. Villalvazo’s opinion even if that opinion was based on her subjective
complaints. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
D. Treating Physician Dr. Peters
Dr. Peters opined that Martinez’s pain was “severe and disabling” and
concluded that “[s]he is unable to work.” The ALJ did not indicate what weight he
gave to Dr. Peters’s opinions regarding Martinez’s physical impairments, though
he gave no weight to Dr. Peters’s opinions on Martinez’s mental impairments. To
the extent that the ALJ intended to discount Dr. Peters’s opinions on Martinez’s
physical limitations, he did not provide a specific, legitimate basis for doing so
because he only addressed Dr. Peters’s range of motion findings, and he did not
explain how any objective evidence was inconsistent with Dr. Peters’s range of
motion findings.
II.
Martinez testified that her activities were extremely limited by her pain and
depression. She said she stayed home every day, had no hobbies, could only focus
for short periods, did not prepare meals, did not do laundry, only bathed with
someone else at home to make sure she did not fall down, and did not go shopping
on her own. She further testified that she needed to lie down intermittently for four
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hours a day.
The ALJ appropriately concluded that Martinez presented objective medical
evidence of impairments that could be expected to produce her symptoms—
specifically, degenerative disc disease and severe depression—but erred in the
reasons provided for discrediting Martinez’s statements and testimony about the
severity of those symptoms. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36
(9th Cir. 2007) (setting out two-step process for evaluating a claimant’s testimony).
The ALJ did not provide specific findings supported by clear and convincing
reasons to discount Martinez’s testimony about the severity of her symptoms. See
id. A large part of the ALJ’s discussion of Martinez’s credibility concerned
apparent inconsistencies unrelated to her symptoms, when the ALJ should have
focused on testimony as to Martinez’s symptoms. See 20 C.F.R. § 404.1529(c)(4);
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see also SSR 16-3P, 2016
WL 1119029, at *1 (Mar. 16, 2016). Furthermore, the ALJ’s analysis did not
reflect consideration of how Martinez’s memory limitations might have affected
her testimony. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1164
(9th Cir. 2012). While the ALJ cited Martinez’s frequent napping as evidence that
she was sleeping normally, frequent napping is at least as consistent with poor
sleep during the night as it is with good sleep. The ALJ also discounted Martinez’s
testimony based on her daily activities but, as with his analysis of Dr. Ensom’s
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opinion, did not support the conclusions as to the frequency of those activities or
their transferability to the workplace. See Garrison, 759 F.3d at 1016; Fair, 885
F.2d at 603. The ALJ appeared to discount Martinez’s testimony based on an
ALJ’s conclusions after a hearing on a previous Social Security disability
application filed by Martinez but did not identify what part of Martinez’s
testimony in this case he believed was contradicted by the previous ALJ’s
credibility determination. The concerns identified by the ALJ in the previous
proceeding are not present in this one. Finally, the absence of corroborating
medical evidence about Martinez’s slurred speech and bad eyesight provided
sufficient reason to discount her testimony as to those symptoms but did not
provide a sufficiently specific, clear, and convincing ground to reject Martinez’s
testimony more generally. See Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir.
2017).
III.
“[A]n ALJ’s error is harmless where it is inconsequential to the ultimate
nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.
2012) (internal quotation marks omitted). Rejecting the opinions of Martinez’s
treating doctors and testimony from Martinez clearly affected the ALJ’s
determination of Martinez’s residual functional capacity. Embrey v. Bowen, 849
F.2d 418, 423 (9th Cir. 1988). Whereas Martinez and her treating physicians all
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described her as extremely limited in her activities, the ALJ’s residual functional
capacity determination reflected much less severe limitations. The residual
functional capacity determination was in turn the basis for the vocational expert’s
testimony, which was the basis for the ALJ’s conclusion that Martinez was not
disabled. The ALJ’s errors in discounting the opinions of Martinez’s doctors and
testimony from Martinez were therefore not harmless. See Molina, 674 F.3d at
1115.
IV.
Martinez argues that she is entitled to a remand for calculation of benefits
under our court’s “credit as true” rule. Garrison, 759 F.3d at 1020. We agree.
The record is fully developed. The evidence of Martinez’s disabilities from her
treating physicians is extensive, and their opinions are unanimous that Martinez
has severe limitations that would clearly prevent her from working. The evidence
of Martinez’s disability in the treatment records is much stronger than what
appears to have been in the record in cases in which we have declined to apply the
credit as true rule. Compare Leon v. Berryhill, 874 F.3d 1130, 1134-36 (9th Cir.
2017); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1104-05 (9th Cir.
2014). No further evidence is needed. As discussed, the ALJ failed to provide
legally sufficient reasons for rejecting the evidence from Martinez and her treating
physicians. And if the improperly discredited evidence were credited as true, the
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ALJ would be required to find Martinez disabled. Even if Martinez could manage
to work a few hours a day, punctuated by frequent rest breaks when she would
need to lie down, this abbreviated work schedule would not constitute the ability to
engage in substantial gainful activity such that Martinez could be found not to be
disabled. See Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (observing
that “the capability to work only a few hours per day does not constitute the ability
to engage in substantial gainful activity”); SSR 96-8P, 1996 WL 374184, at *2 &
n.2 (July 2, 1996) (explaining that the residual functional capacity determination
reflects the maximum capacity to do sustained work activities in an ordinary work
setting, eight hours a day, for five days a week). Evaluating the record as a whole,
we have no serious doubt that Martinez is disabled, Garrison, 759 F.3d at 1021, so
further proceedings “would merely delay the award of benefits.” Rodriguez, 876
F.2d at 763.
Accordingly, we REVERSE and REMAND for an award of benefits.
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