NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROLINA PEREZ, No. 20-35092
Plaintiff-Appellant, D.C. No. 1:19-cv-03107-MKD
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Mary K. Dimke, Magistrate Judge, Presiding
Argued and Submitted March 4, 2021
San Francisco, California
Before: BALDOCK,** WARDLAW, and BERZON, Circuit Judges.
Carolina Perez appeals the district court’s decision affirming the
administrative law judge’s (“ALJ”) denial of her application for disability insurance
benefits under Title II of the Social Security Act. See 42 U.S.C. §§ 201–234. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Bobby R. Baldock, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
review de novo the district court’s order upholding the denial of Social Security
benefits and will reverse if “the ALJ’s decision was not supported by substantial
evidence in the record as a whole or if the ALJ applied the wrong legal standard.”
Shaibi v. Berryhill, 883 F.3d 1102, 1106 (9th Cir. 2017) (quoting Molina v. Astrue,
674 F.3d 1104, 1110 (9th Cir. 2012)). We conclude the ALJ did not provide specific
and legitimate reasons, supported by substantial evidence, for discounting the
opinions of treating and examining physician. See Ryan v. Comm’r of Soc. Sec., 528
F.3d 1194, 1198 (9th Cir. 2008). We also hold that the ALJ erred in its assessment
of Perez’s symptom testimony. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we reverse and
remand for an award of benefits.
1. First, the ALJ erred by assigning “little weight” to the medical opinions
provided by at least three of the four treating physicians and one examining
physician.1 The medical opinions of a claimant’s treating doctors must be given
“controlling weight” so long as they are “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and are “not inconsistent with the
other substantial evidence in [the claimant’s] case record.” Revels v. Berryhill, 874
1
We do not address whether the ALJ erred in assigning little weight to the opinion
of Perez’s treating neurosurgeon, Dr. Michelle Chowdhary, because the other
treating doctors’ opinions and the examining doctor’s opinion provide ample
evidence to support a finding of disability.
2
F.3d 648, 654 (9th Cir. 2017) (alteration in original) (quoting 20 C.F.R.
§.404.1527(c)(2)). Where a treating doctor’s opinion is uncontradicted, it can be
rejected only for “clear and convincing” reasons supported by substantial evidence
in the record. Reddick, 157 F.3d at 725 (quoting Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995)). And even if a treating physician’s conclusions are contradicted by
another doctor’s opinion, the ALJ may reject the conclusions only if it provides
specific and legitimate reasons, supported by substantial evidence, for doing so.
Revels, 874 F.3d at 654. In the same way, an examining physician’s opinion is
entitled to greater weight than an opinion of a non-examining physician. Lester, 81
F.3d at 830. “[L]ike the opinion of a treating doctor, the opinion of an examining
doctor, even if contradicted by another doctor, can only be rejected for specific and
legitimate reasons that are supported by substantial evidence in the record.” Id. at
830–31.
Here, although the ALJ did not explicitly so state, the opinions of three
treating physicians and one examining physician were contradicted by the
conclusions reached by non-examining source Dr. Norman Staley, the agency’s own
medical consultant. Because the opinions of treating and examining doctors should
be given more weight than the opinions of doctors who do not treat the claimant, the
ALJ was required to provide “specific and legitimate reasons,” supported by
substantial evidence, for discounting the four treating and examining sources’
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opinions. See id at 830. The ALJ did not do so.
a. First, the ALJ erred by giving “little weight” to the opinion of Perez’s
treating gynecologist, Dr. Jessica Bury. Dr. Bury opined that Perez suffers from
spina bifida, with bladder, back, and leg complications; vesicoureteral reflux;
congenitally atrophic/marginally functional kidney; and malformation of her right
foot and toes. Dr. Bury stated that due to her pain, Perez has to lie down for more
than two hours a day, depending on the activity. Work on a regular and continuous
basis, Dr. Bury explained, would cause her condition to deteriorate. Dr. Bury
estimated that Perez would miss four or more days of work each month.
The ALJ gave little weight to Dr. Bury’s opinion because “the record does not
support the limitations in it.” To reach this conclusion, the ALJ relied on a treatment
note from June 2017 indicating Perez’s back pain had improved and that her gait
was “intact.” The ALJ also relied on a treatment note from July 2017 explaining
that Perez was “ambulatory,” “nontoxic appearing,” and “hemodynamically stable
without evidence of sepsis.” Finally, the ALJ relied on treatment notes indicating
Perez was “doing well” after each foot surgery.
These treatment notes do not provide specific and legitimate reasons for
discounting Dr. Bury’s opinion because these cherry-picked statements do not
reflect the diagnostic record as a whole. For example, the ALJ failed to note that the
June 2017 treatment notes also state that Perez’s “pain is worse with bending over
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and prolonged walking,” that she still self-catheters every three to four hours, and
that she experiences decreased sensation “bilaterally to lower legs” and “complete
numbness to [her] entire [left] foot.”
Further, the ALJ’s assessment of the July 2017 treatment notes do not reflect
the context in which they arose. In that instance, Perez went to the emergency room
in response to a 103-degree fever and another UTI. The mere fact that she could
walk and was not septic on that occasion does not negate Dr. Bury’s findings
regarding Perez’s overall condition. And treatment notes from a few months later—
wherein Dr. Bury observed that Perez looked fatigued and tearful, her right foot was
swollen, her toe folded over, and she had gait imbalance and recurrent UTIs—
corroborate the conclusions reached in Dr. Bury’s medical report.
Finally, the treatment notes following Perez’s third foot surgery indicate some
positive progress, but the ALJ failed to mention that amidst the purported progress,
Perez underwent another surgery—this time on both feet. Thus, the observation that
Perez was “doing well” must be viewed in the context of having multiple operations
on her feet in a six-month span. Moreover, in August 2017, nearly a year later, Perez
was “still having lots of issues even after foot surgery.” Her toes were “overlapping
again” and her foot remained swollen. These treatment notes are consistent with Dr.
Bury’s conclusion that Perez would need to lie down two or more hours each day
due to foot and leg pain. Accordingly, the ALJ erred in giving little weight to Dr.
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Bury’s opinion.
b. The ALJ also erred in giving little weight to the conclusions of Perez’s
treating podiatrist, Dr. Jared Clifford. Dr. Clifford opined that Perez suffered from
spina bifida, pes cavus, and foot joint contractures. He explained that Perez had
undergone multiple foot surgeries and that these would likely be lifelong issues. He
ultimately concluded that if Perez’s work involved “prolonged standing and
walking” it would cause her condition to deteriorate. He estimated that Perez would
likely miss two days of work each month for “pain in feet due to prolonged weight
bearing.”
The ALJ discounted Dr. Clifford’s opinion for the same reasons it disregarded
Dr. Bury’s opinion. That is, the ALJ concluded that “the record does not support the
limitations” identified by Dr. Clifford. The ALJ again relied upon the June 2017
treatment notes, the July 2017 treatment notes, and the treatment notes following
Perez’s third foot surgery. For the same reasons provided above, these treatment
notes do not provide specific and legitimate reasons, supported by substantial
evidence, for rejecting Dr. Clifford’s opinion. Additionally, the June 2017 and July
2017 records concern a neurological evaluation and an emergency care note for a
UTI. These notes have little bearing on a podiatrist’s assessment of Perez’s physical
limitations. The ALJ thus erred in affording Dr. Clifford’s opinion little weight.
c. Third, the ALJ erred in giving little weight to the opinion of Perez’s
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urologist, Dr. Norman Shively. Dr. Shively estimated that Perez would miss one
day of work per month due to her recurring UTIs. And although Dr. Shively
concluded that work would not cause Perez’s condition to deteriorate, he explained
she would need to self-catheter four to five times each day.
The ALJ gave little weight to Dr. Shively’s opinion because “the evidence in
the record does not support that the claimant would miss one day of work per
month.” In discounting Dr. Shively’s opinion, the ALJ again relied upon the July
2017 emergency room treatment note, wherein Perez was described as “nontoxic”
and “without evidence of sepsis or instability.” This single treatment note is not a
specific and legitimate reason, supported by substantial evidence, for discrediting
Dr. Shively’s opinion. Dr. Shively had treated Perez for over a decade, and there is
ample evidence in the record to support his conclusions regarding Perez’s urinary
conditions. For example, in December 2016, he noted that Perez “has a history of
vesicoureteral reflux disease and chronic left pyelonephritis. She has a small poorly
functioning left kidney with chronic pain and recurrent [UTIs].” Even after her
hysterectomy and removal of her left kidney—procedures aimed at alleviating her
urinary conditions—Perez continued to experience frequent UTIs. Despite
attempting Botox injections of the bladder, she still made regular doctors’ visits to
address her neurogenic bladder. And with respect to the July 2017 emergency room
visit, though she was non-septic, she had a 103-degree fever as a result of the UTI.
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Therefore, the ALJ erred in discounting Dr. Shively’s well-supported opinion based
on some language in a single emergency room record.
d. Finally, the ALJ erred in affording the opinion of examining physician, Dr.
William Drenguis, little weight. Dr. Drenguis completed a physical evaluation of
Perez on June 15, 2016, several weeks after she underwent surgery on her left foot.
Dr. Drenguis ultimately opined that, due to her spina bifida, Perez could stand and
walk for “at least two hours” and could sit for “at least four hours.”
The ALJ discounted Dr. Drenguis’s opinion because it was “based on a one-
time examination of the claimant, which took place only two weeks after the
claimant had foot surgery.” This is not a specific and legitimate reason for
discrediting Dr. Drenguis’s conclusions. The fact that an evaluator examines a
claimant only one time is not a legally sufficient basis for rejecting the opinion. The
applicable regulations instruct that all opinions, including those from non-treating,
examining providers, should be considered. See 20 C.F.R. § 404.1527(b), (c). And
while the length of the treatment relationship and frequency of examination is one
factor to consider, see id. § 404.1527(c)(2)(i), this basis for discounting Dr.
Drenguis’s opinion is particularly troubling because the ALJ gave “substantial
weight” to the opinion of Dr. Staley, who never examined Perez, see Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (explaining that “the opinion of an
examining physician is entitled to greater weight than that of a non-examining
8
physician”). Moreover, Dr. Drenguis’s report explicitly recognized the limitations
that were caused by Perez’s recent foot surgery as separate from Perez’s day-to-day
limitations, which primarily stem from her lifelong struggle with spina bifida.
The ALJ also discounted Dr. Drenguis’s conclusions because his examination
of Perez, during which Dr. Drenguis observed that Perez sat comfortably, did not
support limiting Perez’s ability to sit to four hours. The ALJ noted that Perez was
able to stand up from a chair and get on a table without help during Dr. Drenguis’s
evaluation. Neither of these observations, however, are specific and legitimate
reasons for discrediting Dr. Drenguis’s opinion. First, there is no evidence that Dr.
Drenguis examined Perez in a seated position for four hours or that the exam took
anywhere near four hours to complete. The ALJ thus perceived an inconsistency
that the record does not support. Moreover, Perez’s ability to stand from a seated
position and get on an examination table without help does not contradict Dr.
Drenguis’s other findings and conclusions. Accordingly, the ALJ erred in affording
Dr. Drenguis’s opinion little weight.
2. The ALJ also erred in its assessment of Perez’s symptom testimony. ALJs
must follow a two-step analysis in determining the extent to which a claimant’s
symptom testimony should be credited. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th
Cir. 2017). “First, the ALJ must determine whether the claimant has presented
objective medical evidence of an underlying impairment which could reasonably be
9
expected to produce the pain or other symptoms alleged.” Id. (quoting Garrison,
759 F.3d at 1014). If the claimant meets that burden, then, “[u]nless there is
affirmative evidence showing that the claimant is malingering,” the reasons for
“rejecting the claimant’s testimony must be ‘clear and convincing.’” Reddick, 157
F.3d at 722 (quoting Lester, 81 F.3d at 834). “This is not an easy requirement to
meet: The clear and convincing standard is the most demanding required in Social
Security cases.” Trevizo, 871 F.3d at 678 (quoting Garrison, 759 F.3d at 1015).
a. Here, the ALJ concluded that Perez’s “described daily activities . . . are
inconsistent with her complaints of disabling symptoms and limitations.” It is true
that “[e]ngaging in daily activities that are incompatible with the severity of
symptoms alleged can support an adverse credibility determination.” Ghanim v.
Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). But we have “repeatedly warned that
ALJs must be especially cautious in concluding that daily activities are inconsistent
with testimony about pain, because impairments that would unquestionably preclude
work and all the pressures of a workplace environment will often be consistent with
doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016.
Perez’s daily activities include cleaning, preparing meals, doing laundry,
driving, shopping, handling money, helping with dishes, and childcare. Her
childcare duties involve watching movies, playing on an iPad, and coloring with her
kids. None of these activities are inconsistent with her symptoms. Nor are they
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comparable to what would be required by a job, particularly when considered in
context. To that end, Perez explained that she can prepare meals that take 20 to 30
minutes to make but sometimes needs breaks to sit down. She also testified that she
can do some cleaning but cannot mop or sweep. While she can drive, she has to get
out of the car every 20 minutes to stretch. And when she shops, she has to use a
pushcart. These activities all include breaks and support, and her ability to engage
in these activities does not contradict her testimony about her symptoms. Moreover,
Perez’s activities with her children—watching movies, playing on an iPad, and
coloring—are not skills that are transferable to the workplace. See Orn v. Astrue,
495 F.3d 625, 639 (9th Cir. 2007) (holding that “reading, watching television, and
coloring in coloring books are activities that are so undemanding that they cannot be
said to bear a meaningful relationship to the activities of the workplace”). Therefore,
the ALJ erred in discounting Perez’s symptom testimony based on her activities of
daily life.
b. The ALJ determined that “the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms” but
discounted her statements about the intensity, persistence and limiting effects of
those symptoms because “the objective findings in this case fail to provide strong
support for the claimant’s allegations of disabling symptoms and limitations.” The
ALJ’s reasoning flipped the applicable standard on its head. Because there is no
11
evidence of malingering, the ALJ needed clear and convincing evidence to discount
Perez’s testimony, not “strong support” from the medical evidence to credit it. See
Reddick, 157 F.3d at 722. The ALJ’s error in framing the standard is not harmless,
as the evidence the ALJ used to dispute Perez’s testimony is not clear and
convincing.
Perez testified that she suffers from back pain, numbness and pain in her legs,
incontinence, and frequent UTIs. On bad days, which occur two to three times a
month, she cannot put on shoes to leave the house and has to lay on her side or
stomach and elevate her legs for five to six hours of the day. While the ALJ cherry-
picked certain evidence to contradict Perez’s statements, her testimony aligns with
“the overall diagnostic record.” See Ghanim, 763 F.3d at 1164 (explaining that
treatment notes showing some signs of improvement do not negate the claimant’s
testimony when the record is viewed as a whole). Although the ALJ is correct that
Perez’s spine had no acute fracture or dislocation, her gait was sometimes reported
as normal, and on one occasion she appeared “nontoxic” and “without evidence of
sepsis,” she nonetheless suffers from spina bifida (which has manifested damage to
her feet, legs, and back), and she still endures frequent and severe UTIs, sometimes
requiring emergency treatment. Accordingly, looking at “the overall diagnostic
record,” the ALJ erred in discounting Perez’s symptom testimony. See id.
3. Having concluded that the ALJ committed reversible error in discounting
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both the treating and examining doctors’ opinions, as well as Perez’s symptom
testimony, the remaining question is whether to remand for further proceedings or
for an immediate award of benefits. Typically, remand for further administrative
proceedings is appropriate if development of the record would be helpful. Benecke
v. Barnhart, 379 F.3d at 587, 593 (9th Cir. 2004). On the other hand, we remand for
an award of benefits when
(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to
provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be required
to find the claimant disabled on remand . . . .
Trevizo, 871 at 682–83 (quoting Garrison, 759 F.3d at 1020).
In this case, the evidence is substantial. The record includes medical history
describing Perez’s countless treatments and procedures; notes from doctor visits,
emergency room visits, and therapy; opinions from six physicians, including four
treating physicians, one examining physician, and one non-examining physician;
and extensive testimony from Perez. For the reasons stated herein, the ALJ provided
legally insufficient reasons to discount the medical evidence and Perez’s symptom
testimony. If the ALJ had credited the evidence as it should have, it would be
required to find Perez is disabled under Title II of the Social Security Act. We
therefore see no useful purpose in remanding for further proceedings.
Accordingly, we REVERSE the judgment of the district court with
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instructions to remand to the Commissioner of Social Security for the calculation
and award of benefits.
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