NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 9 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON S. REEVE, No. 22-36018
Plaintiff-Appellant, D.C. No. 3:22-cv-05060-MLP
v.
MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Michelle L. Peterson, Magistrate Judge, Presiding
Argued and Submitted October 20, 2023
Portland, Oregon
Before: GILMAN,** KOH, and SUNG, Circuit Judges.
Jason Reeve appeals the district court’s decision affirming an Administrative
Law Judge’s (“ALJ”) denial on remand of his application for Social Security
Disability Insurance (“SSDI”) benefits. Reeve applied for SSDI benefits in January
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2016, alleging disability as of March 25, 2015. In 2018, ALJ Gerald Hill found that
Reeve had the severe impairment of degenerative lumbar spine disease, but found
him not disabled and denied benefits. Reeve petitioned for judicial review, and the
district court reversed and remanded Reeve’s application for a new hearing before
a different ALJ.
On remand, ALJ Malcolm Ross also denied benefits. Reeve again petitioned
for review, but this time the district court affirmed. On appeal, Reeve contends that
ALJ Ross improperly discounted Reeve’s subjective symptom testimony, his
wife’s lay testimony, and Reeve’s medical opinion evidence. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we reverse and remand for further proceedings.
1. ALJ Ross erred in discounting Reeve’s subjective symptom testimony. If
an ALJ first determines that “the claimant has presented objective medical
evidence of an underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged[,] . . . and there is no evidence of
malingering, the ALJ can reject the claimant’s testimony about the severity of
[their] symptoms only by offering specific, clear and convincing reasons for doing
so.” Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014) (internal quotation
marks omitted). Here, ALJ Ross found that Reeve’s medically determined
impairments could reasonably be expected to produce some of his alleged
symptoms, and ALJ Ross did not make a finding of malingering. ALJ Ross’s
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reasons for discounting Reeve’s subjective symptom testimony were not clear and
convincing.
First, ALJ Ross erred in relying on alleged inconsistencies regarding
Reeve’s pain and concentration, Reeve’s ability to assist with household chores,
and Reeve’s work history. When reviewing ALJ Hill’s decision, the district court
concluded that Reeve’s testimony on these issues was not inconsistent, and those
conclusions are the law of the case. Stacy v. Colvin, 825 F.3d 563, 566 (9th Cir.
2016) (“[T]he law of the case doctrine and the rule of mandate apply to social
security administrative remands from federal court in the same way they would
apply to any other case.”).
Second, ALJ Ross repeatedly mischaracterized the record when discussing
Reeve’s daily activities. For example, ALJ Ross stated that “[h]is wife reported
that the claimant was able to pick her up on days when she was unable to walk,”
which was an inconsistency that purportedly undermined his pain and symptom
testimony. Reeve’s wife, Tricia Reeve, however, gave that statement in response to
the question: “What was the disabled person able to do before his/her illnesses,
injuries, or conditions that he/she can’t do now?” (Emphasis added.). ALJ Ross
also represented that, in September 2020, Reeve’s wife had reported that “Reeve
could spend up to two hours a day watering the garden.” Tricia Reeve actually
reported, however, the following: “Sometimes [Reeve] waters the garden. . . .
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Watering the small garden will take him 2 hours. It takes the caretaker 15-20 min.”
In other words, Tricia Reeve provided an example to emphasize that it takes Reeve
much longer to do a simple task due to his disability.
Because ALJ Ross recycled reasons already barred by the law of the case
and repeatedly mischaracterized the record, his decision to discount Reeve’s
symptom testimony was not supported by substantial evidence. Further, looking
“at the record as a whole,” ALJ Ross’s error was not harmless because it was not
“inconsequential to the ultimate nondisability determination.” Molina v. Astrue,
674 F.3d 1104, 1115 (9th Cir. 2012), superseded on other grounds by 20 C.F.R.
§ 404.1502(a).
2. Substantial evidence also does not support ALJ Ross’s decision to
discredit the lay testimony of Tricia Reeve, Reeve’s wife. ALJ Ross summarily
gave Tricia Reeve’s statements “little weight for the same reasons as the
claimant’s.” But because ALJ Ross did not have specific, clear, and convincing
reasons for rejecting Reeve’s symptom testimony, he could not reject Reeve’s
wife’s lay testimony by relying on those same reasons. See Dodrill v. Shalala, 12
F.3d 915, 919 (9th Cir. 1993) (“That the ALJ dismissed all the lay witness
testimony solely because he found the claimant was not credible suggests he may
have been under the mistaken impression that lay witnesses can never make
independent observations of the claimant’s pain and other symptoms. . . . If the
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ALJ wishes to discount the testimony of the lay witnesses, he must give reasons
that are germane to each witness.”).
3. Substantial evidence does not support ALJ Ross’s decision to discount
the opinion of Dr. Dennis Kim, Reeve’s treating physician of several years.1 “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.” Garrison, 759 F.3d at 1012 (internal citation
and quotation marks omitted). ALJ Ross discounted Dr. Kim’s opinion because (1)
it was “inconsistent with and unsupported by the overall record and the claimant’s
demonstrated functioning,” (2) Dr. Kim “failed to recognize the primary deficiency
in Dr. Liu’s opinions: that the distribution of sensation loss could not be explained
by the objective spinal evidence,” and (3) Dr. Kim’s opinion relied on Reeve’s
self-reports of back pain.
First, ALJ Ross’s broad allegation that Dr. Kim’s opinion was inconsistent
does not satisfy the “specific and legitimate reason” standard. See Garrison, 759
F.3d at 1012–13 (“[A]n ALJ errs when he rejects a medical opinion or assigns it
little weight while . . . criticizing it with boilerplate language that fails to offer a
substantive basis for his conclusion.”); see also id. at 1012 (“An ALJ can satisfy
1
Because Reeve filed his claim before March 27, 2017, the previous rules for
evaluating medical opinions, as listed in 20 C.F.R. §§ 404.1527 & 416.927, apply.
See 20 C.F.R. §§ 404.1520c, 404.1527, 416.920c, 416.927.
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the ‘substantial evidence’ requirement by setting out a detailed and thorough
summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” (internal quotation marks omitted)).
Second, ALJ Ross’s conclusion that Dr. Kim “failed to recognize the
primary deficiency in Dr. Liu’s opinions” regarding sensation loss is not a
legitimate reason to discount Dr. Kim’s opinion, because Dr. Kim was not
reviewing Dr. Liu’s opinion regarding sensation loss. Instead, Dr. Kim was asked
whether he agreed with several functional limitations (none of which mentioned
sensation loss) based on his own clinical observations and testing.
Third, because we conclude that ALJ Ross improperly discounted Reeve’s
subjective symptom testimony, ALJ Ross also erred by discounting Dr. Kim’s
opinion on that ground. Further, even assuming ALJ Ross properly discounted
Reeve’s subjective symptom testimony, ALJ Ross erred in rejecting wholesale Dr.
Kim’s opinion simply because it mentioned Reeve’s self-reported pain. An ALJ
may discount a treating provider’s opinion if it is “based to a large extent on [a
discredited] applicant’s self-reports and not on clinical evidence,” but “[w]hen an
opinion is not more heavily based on a patient’s self-reports than on clinical
observations, there is no evidentiary basis for rejecting the opinion.” Ghanim v.
Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (internal quotation marks omitted).
Dr. Kim’s agreement with the February 2017 functional limitation assessment was
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based on Dr. Kim’s own clinical observations and review of the objective medical
record, with only a brief mention of Reeve’s frequent and severe back pain in
response to a supplementary question asking about possible absenteeism.2 Thus,
even if ALJ Ross had properly discounted Reeve’s subjective symptom testimony
such that Dr. Kim’s supplementary response regarding absenteeism could be set
aside, ALJ Ross still erred in discounting Dr. Kim’s agreement with the entire
functional limitation assessment, which was not based primarily on Reeve’s self-
reports. ALJ Ross’s error was not harmless, because Dr. Kim’s functional
limitation assessment, if credited, would have compelled a finding of disability
according to the vocational expert’s testimony.3
4. ALJ Ross’s decision to assign little weight to the opinion of Dr. Beth Liu,
who performed only a consultative examination on Reeve in May 2016, is
supported by substantial evidence. ALJ Ross supported his conclusion with several
reasons. Some of those reasons are improper or questionable. First, because we
2
At oral argument, the government asserted that Dr. Kim’s functional limitation
assessment amounted to a cursory “check-box” opinion. ALJ Ross did not provide
such a reason, so we do not consider it in our analysis. Even so, we have
emphasized previously that even a “check-box” opinion by a treating physician
does not stand alone and represents the experiences and observations of that
physician over the course of the treatment relationship. See Garrison, 759 F.3d
1013–14 & n.17.
3
Because substantial evidence does not support ALJ Ross’s denial of benefits to
Reeve on the issues elaborated here, and ALJ Ross’s error was not harmless, we
remand for a new hearing without reaching the additional issues raised by Reeve
on appeal.
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conclude that ALJ Ross improperly discredited Reeve’s symptom testimony, ALJ
Ross could not reject Dr. Liu’s opinion for relying on Reeve’s self-reports of his
symptoms. Second, ALJ Ross’s statement that Dr. Liu’s opinion was “inconsistent
with the longitudinal record,” standing alone, borders on the type of “boilerplate
language” that we have routinely rejected. See Garrison, 759 F.3d at 1012–13.
Third, ALJ Ross’s discounting of Dr. Liu’s pinprick and range of motion testing
based on Dr. Thompson’s testimony that pinprick and range of motion tests are
“subjective findings” appears to run counter to the Administration’s own
regulations. See 20 C.F.R. § 404.1529(c)(2) (listing “reduced joint motion, muscle
spasm, sensory deficit or motor disruption” as examples of “objective medical
evidence”). However, we have observed previously that even objective medical
tests may be subject to manipulation. See Ukolov v. Barnhart, 420 F.3d 1002, 1006
(9th Cir. 2005). We need not resolve whether ALJ Ross erred in describing Dr.
Liu’s testing methods as subjective because, even if we exclude all of the improper
and questionable reasons, the remaining reasons adequately support the decision to
discount Dr. Liu’s opinion. See Garrison, 759 F.3d at 1012.
5. ALJ Ross’s conclusions regarding the medical opinions of Dr. Michael
Rogers and Dr. Robert Thompson were based on “specific and legitimate reasons
that are supported by substantial evidence.” Id.
6. ALJ Ross provided legitimate and germane reasons for affording little
8
weight to the opinion of Marsha Hiller, Reeve’s physical therapist. See Popa v.
Berryhill, 872 F.3d 901, 906 (9th Cir. 2017).
7. Finally, Reeve failed to preserve his challenge to ALJ Ross’s evaluation
of the medical opinions of Drs. Louis Martin, Merry Alto, Howard Platter, and
James Irwin on appeal, because Reeve did not first raise these challenges with the
district court. See Steam Press Holdings, Inc. v. Haw. Teamsters, Allied Workers
Union, Loc. 996, 302 F.3d 998, 1005 (9th Cir. 2002) (“[A]s a general rule courts of
this circuit will not consider arguments on appeal that were not properly raised at
the lower court level . . . .”). We therefore find no error regarding ALJ Ross’s
decision in these respects. Overall, however, his decision is not supported by
substantial evidence.
REVERSED AND REMANDED.4
4
Costs shall be assessed against the Commissioner.
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