NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIE ANN GRIGSBY, No. 20-35133
Plaintiff-Appellant, D.C. No. 6:18-cv-02189-MO
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted March 2, 2021
Portland, Oregon
Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,** District Judge.
Julie Grigsby (“Grigsby”) appeals the district court's judgment affirming the
Social Security Commissioner's (“Commissioner”) denial of disability benefits
under Title II and XVI of the Social Security Act. 42 U.S.C. §§ 401-34, 1381-85.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the
judgment of the district court affirming the decision of the Administrative Law
Judge (“ALJ”). Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). We
“may set aside a denial of benefits only if it is not supported by substantial
evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006). Because the ALJ’s decision is not supported by substantial
evidence, we reverse and remand for further proceedings consistent with this
disposition.
The ALJ found that Grigsby was capable of the full range of medium
exertional work. See 20 C.F.R. §§ 404.1567(c), 416.967(c). The state
consultative physicians, Drs. Bernardo and Farwell, however, determined that
Grigsby was limited to light exertional work with specific postural limitations.
Having determined that Grigsby was capable of medium exertional work, the ALJ
determined that she could perform her prior job as a house worker, which under the
DOT job titles is classified as medium exertional work. DOT 301.474-010.
Grigsby argues that the ALJ’s finding is not supported by substantial evidence.
We address each of Grigsby’s arguments below.
1. First, Grigsby argues that in rejecting the opinions of Drs. Bernardo and
Farwell, the ALJ failed to point to any specific record evidence that supports a
greater exertional level than light work. The ALJ appears to have discounted
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their opinions because the record lacks a showing of “neural involvement.” But
nothing in the ALJ’s decision explains why the medical evidence on which Drs.
Bernardo and Farwell relied does not support their opinions. Nor does the ALJ
explain why later medical evidence undermines their opinions. An ALJ may
reject the opinion of a non-examining physician but must do so “by reference to
specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240,
1244 (9th Cir. 1998). Because the ALJ failed to comply with this rule, her
decision must be vacated and remanded for further consideration on this issue.
2. Next, Grigsby challenges the ALJ’s reliance on her daily activities as the
basis for discrediting her pain and symptom testimony. While an ALJ may
consider a claimant’s reported daily activities, “[t]he Social Security Act does not
require that claimants be utterly incapacitated to be eligible for benefits” as many
activities are “not easily transferable to what may be the more grueling
environment of the workplace, where it might be impossible to periodically rest or
take medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). As to
Grigsby’s daily activities, the ALJ placed significant weight on the fact that
Grigsby testified that she had engaged in camping and fishing. The evidence,
however, is insufficient to suggest that these activities supported the ALJ’s
determination that she could lift 25 pounds or more for purposes of medium
exertional work on a regular basis. See 20 C.F.R. §§ 404.1567(c), 416.967(c).
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3. Finally, Grigsby argues that the ALJ mischaracterized her attempts to
work. We agree. The ALJ’s characterization of Grigsby’s attempts to work is
not supported by the evidence. As documented in the record, Grigsby attempted
to work after the onset date of her disability but was unable to do so successfully
due to her pain, fatigue, and overall condition. While Grigsby accepted
assignments from a temp agency, she was unable to remain employed for extended
periods as a result of her pain and fatigue. Many of the jobs that Grigsby secured
caused painful “flareups” of her physical conditions, and Grigsby was frequently
fired for being “too slow” or unable to perform her job as a result. Although
Grigsby applied “everywhere” and to “everything”—even unsuccessfully
attempting to take classes which would help her gain skills needed to be
competitive in securing lighter exertion jobs—she was unable to find less
strenuous employment. Grigsby’s attempts to work do not support the ALJ’s
determination that she was capable of medium exertional work.
For the foregoing reasons, we conclude that the ALJ’s decision is not
supported by substantial evidence and therefore reverse the district court’s
judgment with instructions to remand to the Commissioner for further proceedings
consistent with this disposition.
REVERSED and REMANDED.
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