NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 28 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY LANNING, No. 19-35991
Plaintiff-Appellant, D.C. No. 4:18-cv-05134-SAB
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, Chief District Judge, Presiding
Argued and Submitted December 11, 2020
Seattle, Washington
Before: BERZON and MILLER, Circuit Judges, and GLEASON,** District Judge.
Terry Lanning appeals from the district court’s order affirming an
administrative law judge’s (ALJ’s) denial of disability insurance benefits and
supplemental security income under Titles II and XVI of the Social Security Act.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We reverse
and remand with instructions to remand to the Social Security Administration.
1. The ALJ prejudicially erred by assigning “[l]ittle weight” to the
opinions of Dr. Woolever and Dr. Henderson and by failing to consider the opinion
of Dr. Palasi. An ALJ “must consider all medical opinion evidence.” Tommasetti v.
Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). A
treating physician’s opinion holds “substantial weight.” Ford v. Saul, 950 F.3d
1141, 1154 (9th Cir. 2020) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.
1988)). Even if contradicted, it may be discounted only for “specific and legitimate
reasons” supported by substantial evidence. Id. (quoting Lester v. Chater, 81 F.3d
821, 830 (9th Cir. 1995)). Nevertheless, reversal is not warranted if the ALJ’s error
was harmless, “meaning it was ‘inconsequential to the ultimate nondisability
determination.’” Id. (quoting Tommasetti, 533 F.3d at 1038).
Dr. Woolever, Lanning’s primary-care physician, reported that Lanning was
severely limited by coronary artery disease, chronic obstructive pulmonary disease
(COPD), and hip pain and was therefore unable to perform even sedentary work
for 99 months. The ALJ assigned little weight to Dr. Woolever’s opinion “because
it was done at a time when [Lanning] was limited by heart problems, and the
record shows these problems resolved after stent placement.” But Dr. Woolever’s
opinion was also based on Lanning’s COPD and hip pain. In fact, Dr. Woolever
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assigned those impairments a severity rating of five—the maximum—indicating an
“[i]nability to perform one or more basic work-related activities,” including sitting,
standing, and walking. By contrast, Dr. Woolever assigned a severity rating of four
to Lanning’s heart disease. Even if Lanning’s heart treatment allowed him to
perform all of the work activities previously limited by his heart disease, Dr.
Woolever’s evaluation shows that Lanning’s hip pain would, at a minimum,
prevent him from sitting and standing in a work environment. Given the substantial
weight that must be accorded to the opinion of a treating physician, the ALJ’s
failure to adequately consider Dr. Woolever’s opinion was not harmless.
Dr. Henderson, Lanning’s treating orthopedic surgeon, reported that Lanning
was severely limited by his total hip replacement and was therefore unable to
perform even sedentary work for three months. The ALJ assigned little weight to
Dr. Henderson’s opinion “because it was only relevant for a short period of time
right after [Lanning’s] hip surgery.” But even if Dr. Henderson’s report could not
by itself justify a finding of disability, that does not mean that it was not probative
evidence that Lanning was disabled for at least three months. The ALJ’s
discounting of this evidence was not harmless. Dr. Henderson noted at a pre-
operation appointment five months earlier that Lanning reported “increasing pain,
particularly over the past several years,” and that he had an abnormal gait, “definite
pain” with movement, and “difficulty performing activities of daily living.” A year
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before that, Lanning presented to Dr. Henderson with hip pain and antalgic gait,
and Dr. Henderson diagnosed him with progressive degenerative change of his
right hip. Taken together, Dr. Henderson’s reports suggest a period of greater than
12 months, before and after surgery, in which Lanning was disabled.
The government argues that Lanning “frequently had a normal gait on
examination,” but it points to only one such exam since Dr. Henderson’s first
diagnosis. And at that exam, which was conducted by Dr. Woolever, the doctor
also noted chronic pain, congenital hip dysplasia, hip bursitis, and hip pain as
problems. In any event, “[o]ccasional symptom-free periods . . . are not
inconsistent with disability.” Lester, 81 F.3d at 833. The government also argues
that discounting Dr. Henderson’s opinion was harmless because Lanning
“routinely reported that he was able to do his activities of daily living.” But the
ALJ did not find that Lanning’s activities occupied a substantial part of his day, cf.
Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001), or that they were readily
transferable to a work environment, cf. Diedrich v. Berryhill, 874 F.3d 634, 643
(9th Cir. 2017).
Dr. Palasi, a non-examining State physician, rendered two opinions, one in
2015 based on her review of Dr. Woolever’s opinion and Lanning’s medical
records, and the other in 2017 based on her review of both Dr. Woolever’s and Dr.
Henderson’s opinions and Lanning’s medical records. Lanning’s attorney relied on
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Dr. Palasi’s opinions at the administrative hearing, but the ALJ never mentioned
them in his decision. That was error, see Vasquez v. Astrue, 572 F.3d 586, 596 (9th
Cir. 2009), and it was not harmless. In her 2015 opinion, Dr. Palasi agreed with Dr.
Woolever’s conclusion that Lanning had a less-than-sedentary residual functional
capacity for 99 months due to coronary artery disease, COPD, and obesity. In her
2017 opinion, Dr. Palasi again agreed that Lanning was capable of less than
sedentary work due to hip osteochondrosis, coronary artery disease, and COPD.
But unlike Dr. Henderson, Dr. Palasi identified Lanning’s impairment as expected
to last 12 months, which would meet the statutory duration requirement. 42 U.S.C.
§ 423(d)(1)(A) (Title II); id. § 1382c(a)(3)(A) (Title XVI).
2. When prejudicial error has occurred, we ordinarily remand for further
proceedings, Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015), and we do
so here. On remand, the ALJ should consider the opinions of Dr. Palasi and re-
evaluate whether Dr. Woolever’s and Dr. Henderson’s opinions should be assigned
greater weight. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). The ALJ
should also reconsider whether Lanning’s testimony and his wife’s function reports
should be credited in light of this re-examination of the medical opinion evidence.
REVERSED AND REMANDED.
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