NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 27 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICKY L. FRYER, No. 21-36004
Plaintiff-Appellant, D.C. No. 3:20-cv-05394-TLF
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Theresa Lauren Fricke, Magistrate Judge, Presiding
Argued and Submitted October 18, 2022
Portland, Oregon
Before: PAEZ and BADE, Circuit Judges, and R. COLLINS,** District Judge.
Dissent by Judge BADE.
Vicky Fryer (“Fryer”) appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for disability
insurance benefits under Title II of the Social Security Act. On appeal, Fryer
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
argues that the ALJ improperly evaluated the medical opinion evidence and her
testimony regarding her pain symptoms. We have jurisdiction under 28 U.S.C. §
1291 and review de novo. Ford v. Saul, 950 F.3d 1141, 1153-54 (9th Cir. 2020)
(citations omitted). We affirm in part, reverse in part, and vacate and remand for
further proceedings.
1. Medical Opinion Evidence: Because Fryer’s claim was filed on September
14, 2017, it is subject to the Social Security Administration’s revised regulations
for the evaluation of medical opinion evidence. See Revisions to Rules Regarding
the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017)
(codified at 20 C.F.R. pts. 404 & 416). Under the revised rules, “‘[t]he most
important factors’ that the agency considers when evaluating the persuasiveness of
medical opinions are ‘supportability’ and ‘consistency.’” Woods v. Kijakazi, 32
F.4th 785, 791 (9th Cir. 2022) (quoting 20 C.F.R. § 404.1520c(a)). “[A]n ALJ's
decision, including the decision to discredit any medical opinion, must simply be
supported by substantial evidence.” Id. at 787.
The ALJ’s decision to partially discredit the opinion of Fryer’s examining
physician, Dr. Derek Leinenbach, is supported by substantial evidence. Dr.
Leinenbach’s opinion that Fryer had an overhead reaching limitation on her left
side was not supported by the “objective medical evidence,” as Fryer’s physical
examination showed that she had a normal range of motion in her left shoulder.
2
Woods, 32 F.4th at 791-92 (citing § 404.1520c(1)). Nor was Dr. Leinenbach’s
opinion consistent with other evidence from Fryer’s claim. Id. at 792 (citing §
404.1520c(c)(2)). Significantly, Fryer failed to report shoulder pain to her
healthcare providers or seek additional treatment for such pain—in contrast, she
frequently reported and sought treatment for other kinds of body pain she
experienced. The ALJ did not err in discrediting Dr. Litman’s opinion on these
grounds. See § 404.1520c(b)(2) (stating that ALJs must “explain how [they]
considered the supportability and consistency factors,” and “may, but are not
required to,” explain how they considered other factors).
The ALJ also had substantial evidence to fully discredit the opinion of
Fryer’s examining psychologist, Dr. Jack Litman. Dr. Litman concluded that he
“tend[ed] to believe” Fryer’s statement that she could no longer work because she
appeared “fairly physically deconditioned,” and she was “wary and pain avoidant”
of exposure to physical reconditioning. The objective findings from Dr. Litman’s
examination do not support his opinion that Fryer could not work. Indeed, Dr.
Litman found that Fryer’s cognitive ability was reasonably good, and he did not
suggest that her mental health conditions impeded her work abilities. Dr. Litman’s
conclusory assertion that Fryer was “physically deconditioned” was inconsistent
with the relatively benign findings from her physical examination. The ALJ did
not err in discrediting Dr. Litman’s opinion on these grounds.
3
2. Fryer’s Symptom Testimony: The ALJ’s reasons for discrediting Fryer’s
testimony about her pain symptoms and related limitations were not supported by
substantial evidence. The ALJ found that Fryer had produced evidence of
impairments that could reasonably be expected to produce her symptoms. The
ALJ did not find that Fryer was malingering; therefore he could “reject [her]
testimony about the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th
Cir. 2008) (citing Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84) (internal
citations omitted)).
Fryer testified that, due to her chronic pain, she was unable to walk for more
than a few blocks, sit for long periods of time, and perform routine household
tasks, such as lifting a gallon of milk with one hand. In rejecting this testimony,
the ALJ explained that Fryer’s testimony was inconsistent with “[t]he observations
of mostly normal strength and ambulation, the limited observations of pain
behavior, and the routine and conservative course of treatment.” The ALJ also
found Fryer’s alleged symptoms and limitations inconsistent with her reported
daily activities. Several of these findings were not supported by substantial
evidence.
First, the ALJ erred by concluding that there were “limited observations of
pain behavior” in Fryer’s medical records. From 2016 to 2018, multiple healthcare
4
providers observed that Fryer was in pain, had difficulty walking and exhibited a
limited range of motion. This basis for the ALJ’s adverse credibility finding is not
supported by substantial evidence.
Second, the ALJ erred in discrediting Fryer’s testimony based on her routine
and conservative treatment for “fibromyalgia and other medical conditions.” Fryer
tried a variety of pain medications to treat her fibromyalgia, including muscle
relaxers, narcotics, and anti-inflammatories, but she often experienced negative
side effects and could not continue treatment. She also underwent massages,
chiropractic care, acupuncture, physical therapy, and TENs treatment. There is no
indication that the treatments she took relieved her pain. Cf. Tommasetti, 533 F.3d
at 1040 (noting that the claimant had “responded favorably” to conservative
treatments). Notably, the ALJ did not identify or explain other fibromyalgia
treatments that Fryer could have tried. In previous cases, we have indicated that
epidural steroid injections might serve as a nonconservative treatment for
fibromyalgia. See Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017). But
Fryer’s medical records indicate that she was not a candidate for injections because
her hemoglobin levels were not sufficiently controlled. Considering the record as a
whole, Fryer’s purportedly “minimal treatment regime is not a proper basis for
finding [her] non-credible.” Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d
1155, 1162 (9th Cir. 2008) (explaining that a conservative treatment for pain “is
5
not a proper basis for rejecting the claimant's credibility where the claimant has a
good reason for not seeking more aggressive treatment”).
Third, the ALJ erred in finding Fryer’s symptom testimony inconsistent with
her daily activities. The limited activities Fryer reported doing, including grocery
shopping with her husband, cooking simple meals, watching television, and
spending time with family, are all consistent with the pain symptoms she
described. The ALJ offers no explanation why a person who experiences chronic
pain and limited mobility would be unable to engage in errands and light
housework. To the contrary, “[w]e 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 little more than merely resting in bed all day.” Garrison v. Colvin, 759
F.3d 995, 1016 (9th Cir. 2014). The ALJ also overlooked Fryer’s statements that
she received help from her husband or other family members when engaging in
any such daily activities.
As to Fryer’s ability to perform housework, the ALJ found Fryer’s testimony
that her husband performed most housework “inconsistent” with the fact that her
6
husband “is a disabled veteran suffering from physical and mental disability.”1
This inference is unreasonable. Although an ALJ is “entitled to draw inferences
logically flowing from the evidence,” the record contains no information about the
nature of Fryer’s husband’s disability. Sample v. Schweiker, 694 F.2d 639, 642
(9th Cir. 1982). There is insufficient record evidence to support the ALJ’s
findings about Fryer’s husband’s capabilities. This basis for the adverse credibility
finding is not supported by substantial evidence.
To be sure, the ALJ’s analysis of Fryer’s credibility was not entirely
erroneous. The ALJ properly rejected Fryer’s testimony about why she stopped
working in 2017 based on “internal contradictions in her testimony” and
“inconsistencies . . . between [her] testimony and . . . [her] work record.” Light v.
Soc. Sec. Admin., 119 F.3d 789, 792-93 (9th Cir. 1997), as amended on reh'g (Sept.
17, 1997) (citations omitted). The ALJ also correctly pointed out that Fryer’s
symptom testimony was not entirely supported by the objective findings from her
physical examinations.
1
Fryer also argued that the ALJ erred by refusing to consider lay witness
statements from her husband. It is an open question whether ALJs are still
required to consider lay witness evidence under the revised regulations, although it
is clear they are no longer required to articulate it in their decisions. See Johnson
v. Kijakazi, No. 21-35755, 2022 WL 3998572, at *2 (9th Cir. Sept. 1, 2022)
(raising the same issue about the requirements for evaluating lay evidence under
the revised rules, and declining to address it). We need not address the issue in this
case. It is clear the ALJ evaluated Fryer’s husband’s function reports, as he
references the reports elsewhere in the decision.
7
But we must reverse an ALJ’s decision for error unless “it is clear from the
record that the ALJ’s error was inconsequential to the ultimate nondisability
determination.” Tommasetti, 533 F.3d at 1038 (internal quotation marks and
citations omitted). We “cannot consider an error harmless unless [we] can
confidently conclude that no reasonable ALJ, when fully crediting the testimony,
could have reached a different disability determination.” Marsh v. Colvin, 792
F.3d 1170, 1173 (9th Cir. 2015) (cleaned up).
We cannot confidently conclude that the ALJ’s multiple, material errors with
respect to discrediting Fryer’s testimony were harmless. Unlike other cases in
which we have deemed a minor error in the ALJ’s reasoning harmless, here, most
of the reasons the ALJ gave for finding Fryer non-credible were erroneous. Cf.
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)
(holding that the ALJ made one erroneous assumption about the claimant’s posture
while watching television and it was harmless). These errors “negate the validity
of the ALJ’s ultimate conclusion.” Id. at 1197. We are mindful that this case
involves pain-related ailments. As we have recognized, there is typically no
objective medical support for symptoms involving excess pain, and the claimant’s
testimony is particularly probative. See Cotton v. Bowen, 799 F.2d 1403, 1407
(9th Cir. 1986) (“Excess pain is, by definition, pain that is unsupported by
objective medical findings.”); see also Gonzalez v. Sullivan, 914 F.2d 1197, 1201
8
(9th Cir. 1990) (“[I]t is the very nature of excess pain to be out of proportion to the
medical evidence.”). Had the ALJ properly credited Fryer’s testimony, the ALJ
might well have found that she is disabled.
We reverse and remand for reconsideration of Fryer’s symptom testimony
consistent with this disposition. We affirm the ALJ’s decision with respect to the
medical opinion evidence. The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, AND REMANDED for further
proceedings.
9
FILED
No. 21-36004, Fryer v. Kijakazi
DEC 27 2022
BADE, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The substantial evidence threshold “is not high.” Biestek v. Berryhill, 139 S.
Ct. 1148, 1154 (2019). “It means—and means only—‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Because the record
contains evidence that “a reasonable mind might accept as adequate to support” the
ALJ’s finding that Fryer has the residual functional capacity to perform light work,
I respectfully dissent.
I agree with the majority that the ALJ’s decision to partially discredit
Dr. Leinenbach’s opinion and fully discredit Dr. Litman’s opinion is supported by
substantial evidence. I disagree, however, with the majority’s conclusion that the
ALJ did not state “clear and convincing reasons” for discrediting Fryer’s testimony
about the extent of her symptoms. See Tommasetti v. Astrue, 533 F.3d 1035, 1039
(9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283–84 (9th Cir.
1996)).
In a single sentence, the majority acknowledges that the ALJ correctly
recognized that Fryer’s symptom testimony “was not entirely supported” by the
“objective findings from her physical examinations.” Those “objective findings”
include the opinions of three medical professionals, all of whom concluded Fryer
1
could work at the light exertional level. Two medical consultants, Dr. Ulleland
and Dr. Irwin, provided physical assessments of Fryer, and both determined that
she could work at the light exertional level. And Fryer herself emphasizes the
opinion of Dr. Leinenbach because his diagnosis was consistent with Fryer’s
complaints: he found that she had diabetes, fibromyalgia, lumbago with left
sciatica, and other complaints. Even so, Dr. Leinenbach still concluded that Fryer
could stand or walk for six hours, had no sitting limitations, and could lift ten
pounds frequently and twenty pounds occasionally—all of which was inconsistent
with the extent of Fryer’s alleged limitations. See Smolen, 80 F.3d at 1284 (stating
that the ALJ must consider physicians’ observations regarding functional
restrictions caused by the claimant’s symptoms).
Additionally, the ALJ found that Fryer’s testimony about the reason she
stopped working was internally inconsistent and inconsistent with the record
evidence. Fryer asserted that her “medical conditions would have prevented her
from working in July 2017,” and that she had a “history of back pain, diabetes, and
fibromyalgia” before she stopped working, but the record, in contrast, revealed that
she “did not show reports of significant difficulty engaging in work activities
before she stopped working” or “that her physical symptoms worsened around the
time she stopped working.” Fryer also indicated that she stopped working because
the program that administered her position ran out of funding. Thus, the ALJ
2
properly concluded that this evidence suggested “that some of [Fryer’s] statements
regarding her alleged disability are not entirely reliable.” See Light v. Soc. Sec.
Admin., 119 F.3d 789, 792–93 (9th Cir. 1997), as amended on reh’g (Sept. 17,
1997) (ALJ can weigh a claimant’s credibility by considering inconsistencies in
testimony or inconsistencies between testimony and work record).
The majority correctly notes that the ALJ made errors along the way;
however, I cannot agree with the majority’s conclusion that the ALJ erred by
discounting Fryer’s symptom testimony based on her conservative course of
treatment. This court does not make arguments for parties, Johnson v. City of
Grants Pass, 50 F.4th 787, 806 (9th Cir. 2022), but that is what the majority does
here. See also United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)
(quotation omitted) (explaining that the court is bound by the principle of party
presentation). The assertion that injections were not an appropriate fit for treating
Fryer’s fibromyalgia is the majority’s own argument, not one advanced by Fryer to
this court or the district court. But even apart from Fryer’s fibromyalgia, the ALJ
noted that Fryer received routine and conservative treatment for her other
conditions: Fryer never acted on her doctor’s referrals to see a diabetes nurse or
obtain an evaluation at a spinal center, and her treatment providers did not
recommend surgery or more aggressive treatment for her spinal disorder. The
ALJ’s conclusion that a “routine and conservative course of treatment” was
3
inconsistent with Fryer’s allegations “of disabling symptoms and limitations” was
supported by substantial evidence. Tommasetti, 533 F.3d at 1039–40 (permissible
for ALJ to infer that claimant’s pain “was not as all-disabling as he reported in
light of the fact that he did not seek an aggressive treatment program and did not
seek an alternative or more-tailored treatment program after he stopped taking an
effective medication due to mild side effects”).
The ALJ’s errors do not warrant reversal so long as they do not “negate the
validity of the ALJ’s ultimate [credibility] conclusion” and substantial evidence
remains to support the credibility determination. Carmickle v. Comm’r, Soc. Sec.
Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (alteration in original) (quoting
Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)).
Because the ALJ’s remaining reasons for discounting Fryer’s symptom testimony
satisfy the substantial evidence standard, I would affirm.
4