NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 2 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATRINA MCLAMB, No. 17-35481
Plaintiff-Appellant, D.C. No. 2:16-cv-00563-PK
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Paul J. Papak II, Magistrate Judge, Presiding
Submitted June 28, 2018**
Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges
Katrina McLamb appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of McLamb’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We review de novo, Garrison v. Colvin, 759 F.3d 995, 1010
*
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).
(9th Cir. 2014), and we affirm for the reasons given by United States Magistrate
Judge Paul J. Papak II in his Opinion and Order dated April 11, 2017. We attach
Judge Papak’s thorough and persuasive “Analysis” as an Addendum to our
disposition.
AFFIRMED.
2 17-35481
ADDENDUM
3 17-35481
FILED
McLamb v. Berryhill, 17-35481
JUL 02 2018
LEAVY, Circuit Judge, dissenting. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The ALJ found that McLamb has a severe impairment of scoliosis, cervical
degenerative disc disease, lumbar degenerative disc disease, and sciatica of the left
leg. McLamb testified that she “worked through the pain” of her condition until
August 2012, when her pain increased to the point that she could no longer stand
for more than five minutes, or sit longer than five minutes without shifting
positions due to pain in her back and left leg. The ALJ found that McLamb is
unable to perform her past relevant work as a waitress and bartender. He further
found that McLamb’s determinable impairments could reasonably be expected to
cause some of her alleged symptoms; however, McLamb’s statements concerning
the intensity, persistence, and limiting effects of her symptoms “are not entirely
credible for the reasons explained in this decision.” (ER 16). There is no finding
of malingering.
With those findings, the ALJ may reject McLamb’s testimony about the
severity of her symptoms only by providing specific, clear, and convincing reasons
for doing so. See Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). The
Brown-Hunter case also tells us, in no uncertain terms, that to ensure that our
review of the ALJ’s credibility determination is meaningful, and that a claimant’s
testimony is not rejected arbitrarily, we require the ALJ to specify which testimony
is found to be not credible, along with clear and convincing reasons supported by
record evidence that supports the credibility determination. Id. (concluding that
the ALJ erred by summarizing the evidence that supported the RFC determination
without specifically identifying the reasons for rejecting claimant’s testimony); see
also Treichler v. Comm’r Soc. Sec. Admin. 774 F.3d 1090, 1098 (9th Cir. 2014)
(“We leave to the ALJ to determine credibility, resolve conflicts in the testimony,
and resolve ambiguities in the record.”).
The ALJ summarized the medical evidence which shows a moderate, but not
significantly worsening, scoliosis condition. The ALJ noted McLamb’s long work
history despite her scoliosis, and McLamb’s use of conservative methods of pain
management. The ALJ was required to identify which evidence was inconsistent
with McLamb’s testimony regarding her progressively worsening pain symptoms.
In other words, the ALJ cannot discount McLamb’s testimony simply by saying
“for the reasons explained in this decision” without pointing to the evidence that
specifically undermined her testimony. See Brown-Hunter, 806 F.3d at 493.
The majority appends the district court’s analysis which, like the ALJ
decision, cites the record evidence that could possibly support a credibility
determination. But general findings, such as “for the reasons stated in this
opinion,” are insufficient; rather, “the ALJ must identify what testimony is not
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credible and what evidence undermines the claimant’s complaints.” Id., citing
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citation and internal
quotation marks omitted).
The ALJ also erred by failing to provide germane reasons to reject the lay
testimony of McLamb’s mother, and this is not harmless error because the ALJ
failed to provide adequate reasoning to reject McLamb’s testimony. See Molina v.
Astrue, 674 F.3d 1104, 1114-17 (9th Cir. 2012).
Because the ALJ failed to identify specifically, and in the first instance,
which evidence was inconsistent with McLamb’s testimony, I would reverse and
remand with instructions for further agency proceedings.
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