NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE W. CARGILL, No. 17-17170
Plaintiff-Appellant, D.C. No. 2:16-cv-00949-KJN
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kendall J. Newman, Magistrate Judge, Presiding
Argued and Submitted January 18, 2019
San Francisco, California
Before: WALLACE, CLIFTON, and FRIEDLAND, Circuit Judges.
Steve Cargill (“Cargill”) appeals from the district court’s order affirming the
denial by an administrative law judge (“ALJ”) of his application for Social
Security disability benefits. We reverse and remand for further proceedings.
First, the ALJ committed legal error in determining whether Cargill met
Listings 1.02A or 1.03. See 20 C.F.R., pt. 404, subpt. P, app. 1, §§ 1.02A, 1.03
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(2018). Both listings require that the claimant demonstrate an inability to ambulate
effectively, which the regulations define as an impairment that “interferes very
seriously with [his] ability to independently initiate, sustain, or complete
activities.” Id. at § 1.00(B)(2)(b)(1). One example of the inability to ambulate
effectively is the “inability to walk without the use of a walker, two crutches or
two canes,” although the use of only one cane or crutch does not “automatically
exclude all gainful activity.” Revised Medical Criteria for Determination of
Disability, Musculoskeletal System and Related Criteria, 66 Fed. Reg. 58,010,
58,013 (Nov. 19, 2001).
The ALJ’s complete treatment of Listings 1.02A and 1.03 was two
sentences: “The claimant’s right ankle injury has not resulted in an [in]ability to
ambulate effectively as required by listings 1.02 and 1.03. The claimant requires
only a single point cane.” Under the regulations, that was error because Cargill’s
use of one cane could not independently disqualify him from meeting a listing. Id.
(“[I]f someone who uses one cane or crutch is otherwise unable to effectively
ambulate, the impairment(s) might still meet or equal a listing”).
Having therefore disregarded the reference to Cargill’s use of a single-point
cane as legally insufficient, all that we are left with of the ALJ’s analysis on this
point is one sentence concluding that the injury “has not resulted in an [in]ability to
ambulate effectively.” Our case law requires more. “A boilerplate finding is
2
insufficient to support a conclusion that a claimant's impairment does not [meet a
listed impairment].” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Although
the dissent may be correct that the ALJ’s inference was reasonable, we are unable
to so conclude based on a single, conclusory statement. See Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“[W]e still demand that the agency set
forth the reasoning behind its decisions in a way that allows for meaningful
review.”); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir.
2014) (“[W]e cannot substitute our conclusions for the ALJ’s, or speculate as to
the grounds for the ALJ's conclusions. Although the ALJ’s analysis need not be
extensive, the ALJ must provide some reasoning in order for us to meaningfully
determine whether the ALJ’s conclusions were supported by substantial evidence.”
(citation omitted)).
Second, the ALJ improperly discounted the opinion of Dr. George Lin in
crafting Cargill’s residual functional capacity (“RFC”) at steps four and five.1
“Generally, a treating physician’s opinion carries more weight than an examining
physician’s, and an examining physician’s opinion carries more weight than a
reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir.
1
Dr. Paul Sandhu appeared to vacillate in his opinion on whether Cargill
required a cane at all times or only when walking for long periods or on uneven
terrain. In light of these internal inconsistencies, we conclude that the ALJ did not
omit from the RFC any limitations that were clearly communicated in Dr.
Sandhu’s opinion.
3
2001). When faced with physicians’ contradicting opinions, the ALJ must give
specific and legitimate reasons supported by substantial record evidence to reject a
treating or examining physician’s opinion. Batson v. Comm’r of Soc. Sec. Admin.,
359 F.3d 1190, 1195 (9th Cir. 2004); Reddick v. Chater, 157 F.3d 715, 725 (9th
Cir. 1998).
Here, the ALJ gave “great weight to [treating physician] Dr. Lin’s opinion
that the claimant could stand/walk two hours in an eight-hour workday” but “little
weight to Dr. Lin’s opinion regarding the claimant’s nonexertional capabilities,
including the claimant’s need to take a break every hour.” In doing so, the ALJ did
not expressly explain why he was discounting Dr. Lin’s conclusions that Cargill
could only sit for four hours and would need to elevate his legs for 20% of the day.
The Social Security Administration (“Agency”) argues that the ALJ did provide a
specific and legitimate reason for dismissing Dr. Lin’s conclusions: the ALJ noted
that Dr. Lin’s treatment records and prescribed medications demonstrated a lack of
awareness that Cargill consumed alcohol, which was documented in other
physicians’ records. Even if the Agency is correct that such a reason could
logically support the ALJ’s dismissal of Dr. Lin’s non-exertional findings, a
treating physician’s lack of awareness that the patient consumes alcohol is not a
logical basis to conclude that the physician’s assessment of the patient’s physical
4
functioning is also suspect.2
Given that our “precedents have been cautious about when harmless error
should be found” so as not to “substitute our own discretion for that of the
agency,” we cannot conclude that the errors here were harmless.3 See Brown-
2
The dissent offers two additional arguments for discounting Dr. Lin’s
opinion: (1) that Dr. Lin’s practice group relied on each other’s opinions without
independent examination, and (2) that other physicians who reviewed the record as
a whole gave conclusions more consistent with the record. But neither serves as a
specific and legitimate reason for discounting Dr. Lin’s opinion that Cargill could
sit for four hours.
As to the dissent’s first basis, the ALJ may have fairly discounted the
opinions of Dr. Lin’s colleagues because they did not seem to make independent
examinations of Cargill’s ankle. But that was not a reason to dismiss the findings
of Dr. Lin, a physician who had examined Cargill on six occasions. Addressing
the dissent’s second basis, the ALJ gave great weight to one physician who
contradicted Dr. Lin, Dr. Talcherkar, because of Dr. Talcherkar’s familiarity with
the disability program and because the ALJ concluded that his opinions were based
on and more consistent with the whole record. But Dr. Talcherkar did not examine
Cargill—accordingly, the ALJ was still required to give specific, legitimate
reasons for discounting Dr. Lin’s opinion beyond Dr. Talcherkar’s opinion. See
Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (“Where . . . a nontreating
source’s opinion contradicts that of the treating physician but is not based on
independent clinical findings . . . the opinion of the treating physician may be
rejected only if the ALJ gives specific, legitimate reasons for doing so that are
based on substantial evidence in the record.”). The ALJ did not do so.
The ALJ’s assignment of “great weight’ to Dr. Talcherkar’s opinion raises
additional concerns. The ALJ adopted Dr. Talcherkar’s conclusion that Cargill
could sit for six hours per day but, without explanation, did not adopt Dr.
Talcherkar’s other opinions. Those rejected opinions of Dr. Talcherkar directly
contradict the findings of Dr. Sandhu, Dr. Lin, Dr. Kisilewicz, and Dr. Mehta,
calling into question whether Dr. Talcherkar’s opinions should have received any
weight at all.
3
Cargill also alleges that the ALJ erred by failing to meaningfully consider
the limitations posed by his sleep impairment in crafting the RFC. It is true that
the ALJ did not expound on Cargill’s insomnia at step five after dismissing it as a
5
Hunter, 806 F.3d at 492 (first quoting Marsh v. Colvin, 792 F.3d 1170, 1173 (9th
Cir. 2015)).
Even though we hold that the ALJ erred in discounting Dr. Lin’s opinion, we
do not believe that “it is clear from the administrative record that the ALJ would be
required to award benefits” if the opinion was credited as true, so we decline
Cargill’s request that we remand for an award of benefits. See Garrison v. Colvin,
759 F.3d 995, 1019 (9th Cir. 2014) (quoting Varney v. Sec’y of Health & Human
Servs., 859 F.2d 1396, 1401 (9th Cir. 1988)).
REVERSED and REMANDED for further proceedings consistent with this
opinion.
non-severe impairment at step two, even though step five requires the Agency to
“consider all of [the claimant’s] medically determinable impairments of which [the
Agency is] aware, including [the claimant’s] medically determinable impairments
that are not ‘severe.’” 20 C.F.R. § 404.1545(a)(2). But there was ample evidence
in the record that could have provided alternative explanations for Cargill’s
daytime drowsiness, including his alcohol use and the side effects of his prescribed
medications. Because Cargill’s arguments have failed to clearly advance a theory
as to why a more thorough exploration of his insomnia at step five would have
affected the ultimate disability determination, we hold that any error in failing to
fully account for his insomnia at step five was harmless.
6
FILED
Cargill v. Berryhill, No. 17-17170
MAR 5 2019
WALLACE, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent from the majority’s decision to reverse and remand.
We apply a deferential “substantial evidence” standard of review to an ALJ’s
disability decision, and we begin with a presumption of regularity. Bayliss v.
Barnhart, 427 F.3d 1211, 1214-15 & n.1 (9th Cir. 2005). Under that standard, it is
not our role to reverse if we would have decided the case differently, but only to
discern if the record supports the ALJ’s decision as “one rational interpretation” of
the evidence. Id. at 1214 n.1. Because I conclude that the record rationally supports
the ALJ’s findings, I would affirm the district court.
The majority identifies two errors that it concludes constitute error on the
part of the ALJ. However, neither of these are reversible.
First, the majority holds that the ALJ committed legal error by denying
Cargill’s claim at step three because he only uses one cane. I agree with the
majority’s view of the law and that it would be error for the ALJ to deny Cargill’s
claim on that basis. However, the ALJ’s opinion does not compel that conclusion.
An equally reasonable inference would be that the ALJ concluded that Cargill
could ambulate effectively, and included the fact about the single point cane as
mere support for that conclusion. For instance, the ALJ’s conclusions as to other
listings are similarly conclusory.
1
The majority disagrees, but not because it thinks the ALJ’s written opinion
compels the conclusion that it applied the wrong legal standard to Cargill’s claim.
Instead, the majority concludes that the ALJ was required to say more than the
“injury has not resulted in an [in]ability to ambulate effectively.” But what more is
there to say? Under the relevant Listings, there is no per se disability at step three
when the claimant can ambulate effectively, so this finding alone was sufficient to
foreclose Cargill’s claim. It is thus not true that the ALJ’s step three decision was
“a single conclusory statement,” as the majority suggests. See Brown-Hunter v.
Colvin, 806 F.3d 487, 492 (9th Cir. 2015). Instead, the ALJ found, and substantial
evidence in the record supports, that Cargill could ambulate effectively. That was
enough.
Second, the majority holds that the ALJ failed to give specific and legitimate
reasons for discounting Dr. Lin’s opinion. Once more, I agree that this is the
correct legal standard. But the majority gives too little weight to the ALJ’s stated
reasons for discounting Dr. Lin’s opinion, which were not only that Dr. Lin was
unaware of Cargill’s alcohol abuse, but also that Dr. Lin’s practice group relied on
each other’s opinions without independent examination, the practice group did not
have the opportunity to review all of the treatment records, and the ALJ was giving
greater weight to other physicians who reviewed the record as a whole and gave
conclusions consistent with the record. I would hold that these four reasons
2
together were specific and legitimate reasons not to follow Dr. Lin’s
recommendations.
The majority responds that alcohol abuse is not “a logical basis” to conclude
that Dr. Lin’s assessment was suspect. Why not? This deficit suggests that Dr. Lin
lacked key information about his patient, which may have adversely affected his
ability to draw inferences about Cargill’s ability to sit during a workday, among
other things. Furthermore, Dr. Lin’s lack of awareness about Cargill’s alcohol
abuse cannot be considered in a vacuum. Other evidence in the record suggested
that Cargill could sit for longer than Dr. Lin’s recommendation; for instance,
Cargill sat comfortably during Dr. Hoenig’s observation, Cargill shopped for
groceries in a seated position, Cargill drove himself to work, stores, and doctor’s
appointments, and Dr. Talcherkar opined that Cargill could sit for 6 hours. The
ALJ explained all of this in its opinion, and therefore gave “specific, legitimate
reasons . . . based on substantial evidence” for following Dr. Talcherkar’s
recommendation over Dr. Lin’s. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th
Cir. 1995).
While the majority does not explain why Dr. Lin’s lack of awareness was
not a logical basis for discounting his opinion, nor why there is not substantial
evidence in the record to support the ALJ’s prolonged sitting RFC, the majority
does say that it faults the ALJ for crediting Dr. Talcherkar’s opinion because
3
certain other of Dr. Talcherkar’s assessments were contradicted. However, this
argument misstates our role on appeal. Falsus in uno, falsus in omnibus may be a
reason that a fact-finder like the ALJ could have rejected Dr. Talcherkar’s
recommendation, but it does not allows us to reweigh the evidence or wholesale
disregard a doctor’s opinion. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
2002) (“The opinions of non-treating or non-examining physicians may also serve
as substantial evidence when the opinions are consistent with independent clinical
findings or other evidence in the record”). As explained above, there was
independent substantial evidence in the record supporting Dr. Talcherkar’s
assessment of Cargill’s ability to sit, so this opinion too supported the ALJ’s
assessment of Cargill’s ability to sit during the work-day. Combining Dr. Lin’s
lack of awareness of Cargill’s alcohol abuse with Dr. Talcherkar’s contrary
opinion, and discounting the opinions of Dr. Lin’s colleagues for the reasons given
by the ALJ, this record supports the ALJ’s finding that Cargill could sit for six
hours in a work-day. The ALJ thus did not err by discounting Dr. Lin’s contrary
recommendation.
For these reasons, I would affirm.
4