NOT FOR PUBLICATION FILED
DEC 19 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATE SVALDI, No. 15-35848
Plaintiff-Appellant, D.C. No. 2:15-cv-00115-RAJ
v. MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted December 8, 2017
Seattle, Washington
Before: TALLMAN and WATFORD, Circuit Judges, and BENITEZ, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
Kate Svaldi appeals pro se the district court’s decision affirming the
Commissioner of Social Security’s denial of her application for disability insurance
benefits under Title II of the Social Security Act. We review de novo, Ghanim v.
Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and we remand for calculation of
benefits. Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007).
The administrative law judge (“ALJ”) failed to provide clear and convincing
reasons supported by substantial evidence for giving little weight to the
uncontradicted opinion of Santosh Agnani, M.D., who began treating Svaldi in
August 2009, thirteen months before her September 30, 2010 date last insured
(“DLI”).
Viewed in the context of the record as a whole, the treatment records from
Svaldi’s treating physicians, including Dr. Agnani, are reasonably read as reflecting
that Svaldi had a chronic condition and experienced some periods of improvement
during the relevant two-year period prior to her DLI, but those periods of
improvement were not sustained. See Garrison v. Colvin, 759 F.3d 995, 1017 (9th
Cir. 2014); Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001); Rodriguez
v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). As a result, the ALJ’s conclusion that
Dr. Agnani’s December 2010 opinion was inconsistent with the record prior to
Svaldi’s DLI does not rest on a clear and convincing reason that is supported by
substantial evidence. See Holohan, 246 F.3d at 1205 (holding that the ALJ erred in
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rejecting the opinion of claimant’s treating psychiatrist on the basis that his opinion
conflicted with his treatment notes because the treating psychiatrist’s “statements
must be read in [context of] the overall diagnostic picture he draws”). Additionally,
Dr. Agnani’s 2012 and 2014 opinions are retrospective: they refer back to the same
chronic condition and symptoms discussed in his 2010 opinion, and they do not
indicate that there was any decline in Svaldi’s condition over time. As a result, the
fact that those opinions were issued significantly after Svaldi’s DLI does not
undercut the weight those opinions are due. See Garrison, 759 F.3d at 1017 n.22;
see also Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) (“‘[M]edical evaluations
made after the expiration of a claimant’s insured status are relevant to an evaluation
of the preexpiration condition.’” (quoting Smith v. Bowen, 849 F.2d 11 122, 1225
(9th Cir. 1988))). Moreover, the ALJ’s reliance on inconsistencies between Dr.
Agnani’s treatment notes and Svaldi’s reports that she was “doing fine” and
undertaking some activities outside her home, falls short of identifying a clear and
convincing reason to discount Dr. Agnani’s 2012 and 2014 opinions. See Ghanim,
15 763 F.3d at 1162.
The ALJ also erred in giving little weight to the opinion of Svaldi’s therapist,
Michelle Blumenzweig, M.S.W., who treated Svaldi from November 2009 through
January 2011. The reason the ALJ provided – inconsistency with record medical
evidence – is not germane because it rests on the same reasoning and, therefore, fails
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for the same reasons, as the ALJ’s determination that Dr. Agnani’s December 2010
opinion was due little weight. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
The ALJ’s reliance on an improper assessment of the medical evidence that is
not supported by substantial evidence undermines the validity of the ultimate
disability determination. The two reasons the ALJ provided for discounting Svaldi’s
symptom testimony are not specific, clear and convincing reasons supported by
substantial evidence. Id. at 1112. First, because the ALJ’s assessment of the
objective medical evidence is flawed, as discussed above, the ALJ’s determination
that Svaldi’s symptom testimony was not supported by the objective medical
evidence is error. Second, although the ALJ properly considered whether Svaldi’s
symptom testimony was inconsistent with her conduct, Orn, 495 F.3d at 636, his
conclusion that inconsistences existed regarding Svaldi’s extreme difficulty being
around others is not supported by substantial evidence and does not undermine
Svaldi’s overall credibility. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.
2001). Additionally, Svaldi’s activities, including outings with and without the
support of immediate family members, show neither that those activities were
transferable to a work setting nor that Svaldi spent a substantial part of her day
employing transferrable skills. Orn, 495 F.3d at 639.
Because the ALJ improperly rejected the opinions of Dr. Agnani and Ms.
Blumenzweig and Svaldi’s symptom testimony, the ALJ’s reliance on the vocational
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expert’s testimony was error because the hypothetical the ALJ posed did not include
all of Svaldi’s limitations that are supported by substantial evidence. See
Lingenfelter v. Astrue, 504 F.3d 1028, 1040-41 (9th Cir. 2007) (concluding that an
ALJ’s Step Five determination was not supported by substantial evidence because it
was based on an residual functioning capacity assessment that was not supported by
substantial evidence); cf. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005)
(explaining that the hypothetical the ALJ poses to the VE must contain all of the
limitations that the ALJ found to be credible and supported by substantial evidence).
We remand for an award of benefits. The ALJ’s reasons for disregarding the
opinions of Svaldi’s treating physician and treating therapist, as well as Svaldi’s
symptom testimony, are legally insufficient. It is clear from the record that the ALJ
would be required to find Svaldi disabled if Dr. Agnani’s and Ms. Blumenzweig’s
improperly rejected opinions were credited as true. Svaldi’s case has been pending
for several years. The relevant two-year period for which Svaldi seeks benefits
ended over seven years ago, and the record is fully developed. Smolen v. Chater, 80
F.3d 1273, 1292 (9th Cir. 1996). Additional proceedings would only delay Svaldi’s
receipt of benefits. See, e.g., Garrison, 759 F.3d at 1021-22 (remanding for an award
of benefits where, once the improperly rejected opinions and testimony were
credited, it was clear that the claimant was disabled); Orn, 495 F.3d at 640 (same).
We therefore reverse the decision of the district court and remand with instructions
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to remand to the Commissioner of Social Security to calculate and award benefits to
Svaldi. Id. at 640.
REVERSED and REMANDED.
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