NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA COLLINGS, No. 20-35040
Plaintiff-Appellant, D.C. No. 4:19-cv-05024-EFS
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted May 5, 2021**
Seattle, Washington
Before: BOGGS,*** TASHIMA, and MURGUIA, Circuit Judges.
Barbara Collings appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of her application for disability insurance
*
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).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
benefits under the Social Security Act. Because the parties are familiar with the
facts, we do not recite them here. We have jurisdiction under 28 U.S.C. § 1291, and
we reverse.
We review the district court’s decision de novo and reverse only if the
Administrative Law Judge’s (“ALJ”) “decision was not supported by substantial
evidence in the record as a whole or if the ALJ applied the wrong legal standard.”
Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The substantial-evidence
standard is deferential. See id. at 1111 (“[W]hen the evidence is susceptible to more
than one rational interpretation, we must uphold the ALJ’s findings if they are
supported by inferences reasonably drawn from the record.”). However, “[w]e
review only the reasons provided by the ALJ in the disability determination and may
not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin,
759 F.3d 995, 1010 (9th Cir. 2014).
1. The ALJ erred by discounting Collings’s symptom testimony. If a
claimant has presented medical evidence of an impairment that could reasonably be
expected to cause her symptoms and “there is no evidence of malingering,” the ALJ
can reject the claimant’s symptom testimony only by offering “specific, clear and
convincing reasons for doing so.” See id. at 1014–15 (quoting Smolen v. Chater, 80
F.3d 1273, 1281 (9th Cir. 1996)). Boilerplate language does not constitute “specific,
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clear and convincing reasons.” See Trevizo v. Berryhill, 871 F.3d 664, 678–79, 682
(9th Cir. 2017).
Here, the ALJ offered only a generic statement that Collings’s “statements
concerning the intensity, persistence and limiting effects of [her] symptoms are not
entirely consistent with the medical evidence and other evidence in the record.” In
doing so, the ALJ erred because that boilerplate statement was not a sufficiently
“clear and convincing” reason to discount Collings’s testimony. See id. at 678–79,
682; Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (explaining that an ALJ
“must specify what testimony is not credible and identify the evidence that
undermines the claimant’s complaints”). The Commissioner now offers several
reasons to discount Collings’s testimony, including Collings’s purported failure to
follow through with certain recommended treatments and Collings’s apparent
improvement with medication. But because the ALJ did not rely on these reasons
for discounting Collings’s symptom testimony, we cannot affirm the ALJ’s decision
on these grounds. See Garrison, 759 F.3d at 1010.
2. The ALJ did not err in assigning “little weight” to the medical opinion
of Dr. Jennifer Smith, a treating physician. In general, an ALJ is tasked with
evaluating every medical opinion in the record. 20 C.F.R. § 404.1527(c). The ALJ
is required to consider several factors in deciding how much weight to give a
particular medical opinion—including the examining or treatment relationship, the
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physician’s specialty, supportability of the opinion, and consistency of the opinion
with the record as a whole. Id. Generally, a treating physician’s medical opinion is
entitled to greater weight than a non-treating physician’s medical opinion. Garrison,
759 F.3d at 1012. “If a treating or examining doctor’s opinion is contradicted by
another doctor’s opinion, an ALJ may only reject it by providing specific and
legitimate reasons that are supported by substantial evidence.” Id. (citation omitted).
In this case, the ALJ’s decision provided sufficient “specific and legitimate”
reasons for discounting Dr. Smith’s opinion that Collings could not perform any type
of work, which conflicted with Dr. Thompson’s opinion that Collings could perform
light work. The ALJ pointed out that Dr. Smith’s opinion was brief and conclusory;
the check-box form Dr. Smith filled out does not explain Dr. Smith’s opinion beyond
a diagnosis of “chronic back pain.” See Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir.
2020) (holding that an ALJ “may permissibly reject check-off reports that do not
contain any explanation of the bases of their conclusions”) (quoting Molina, 674
F.3d at 1111). In addition, the ALJ pointed out that Dr. Smith’s opinion was
inconsistent with the medical record. This conclusion is supported by record
evidence, including treatment notes indicating that Collings had only a mildly
impaired gait and moderate decrease in her range of motion but was “doing well”
after surgery, and by Dr. Thompson’s opinion that Collings could sit and walk up to
four hours in an eight-hour workday. See Thomas v. Barnhart, 278 F.3d 947, 957
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(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.”). Therefore, the ALJ offered
sufficient “specific and legitimate reasons” for discounting Dr. Smith’s brief
opinion. See Garrison, 759 F.3d at 1012.
Contrary to Collings’s contention, there is no case law requiring the ALJ to
specifically discuss each of the factors in 20 C.F.R. § 404.1527(c) when assigning
weight to a medical opinion—the regulation simply states that the ALJ must
“consider” these factors. From the discussion within the ALJ’s decision, it appears
that the ALJ did consider several of the relevant factors—including the treating
relationship, supportability of the opinion by the record evidence, and consistency
of the opinion with the record—in assigning Dr. Smith’s opinion little weight.
Therefore, the ALJ did not err in discounting Dr. Smith’s opinion.
3. The ALJ did not err in assigning “great weight” to the opinion of Dr.
Robert Thompson, an impartial medical expert who reviewed Collings’s records but
did not examine or treat her. The weight an ALJ gives to a non-examining
physician’s opinion “depends on the degree to which he provides supporting
explanations for his opinions.” Id. at 1012 (internal quotation marks, citation, and
alterations omitted). Here, Dr. Thompson offered his opinion in the form of
testimony at the hearing before the ALJ, in which he summarized the record
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evidence he relied on and responded to questions from Collings’s counsel about his
conclusions. Therefore, the ALJ did not err in affording great weight to Dr.
Thompson’s opinion, since Dr. Thompson explained the basis for this opinion at
length.1 See id.
4. However, the ALJ erred by failing to mention or discuss the opinion of
Dr. Melvin Wahl, a treating physician. An ALJ’s failure to address and explicitly
credit or reject a medical opinion is a legal error. Id. at 1012–13 (citing Nguyen v.
Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). Dr. Wahl opined that Collings could
perform only sedentary work. The ALJ’s failure to address Dr. Wahl’s opinion or
provide specific and legitimate reasons for discounting it was an error. See id.
Although Collings failed to raise this specific error to the district court, the issue is
a pure question of law for which the record has been fully developed, so we may
address it here. See Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).
5. Finally, the ALJ did not harmfully err by failing to discuss lay
testimony from Collings’s former coworker, Cris Torres. Torres’s letter described
a period of time before the disability onset date in very general terms, so the ALJ’s
failure to specifically address this evidence was harmless. See Howard ex rel. Wolff
v. Barnhart, 341 F.3d 1006, 1012–13 (9th Cir. 2003).
1
In addition, it is clear from the ALJ’s discussion that the ALJ considered the proper
factors under 20 C.F.R. § 404.1527(c), including Dr. Thompson’s specialty as an
orthopedic surgeon and the supportability and consistency of his opinion.
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6. Because of the errors with respect to Collings’s symptom testimony and
Dr. Wahl’s opinion, the ALJ’s determination that Collings could perform her past
work—and therefore, that she was not disabled—was also erroneous. See Ghanim
v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014). Collings contends that we should
credit the improperly discounted or omitted testimony as true and remand for an
award of benefits. We have “generally exercised this power when it is clear from
the record that a claimant is entitled to benefits.” Garrison, 759 F.3d at 1019.
However, where “there are outstanding issues that must be resolved before a
determination can be made, or if further administrative proceedings would be useful,
a remand is necessary.” Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017).
Here, there are various inconsistencies and conflicts in the record that lead us to
conclude that further administrative proceedings would be useful—for example, Dr.
Thompson’s properly credited medical opinion contradicts Collings’s testimony that
she could not perform seated work. These conflicts should be resolved by the ALJ
on remand, rather than by this court. See id. Therefore, we reverse the district
court’s decision affirming the denial of benefits and remand to the district court to
remand the case to the ALJ. On remand, the ALJ should consider Collings’s
symptom testimony and Dr. Wahl’s medical opinion.
REVERSED AND REMANDED.
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