Nancy Coggeshall v. Kilolo Kijakazi ( 2022 )

FILED
NOT FOR PUBLICATION
JUN 9 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NANCY COGGESHALL, No. 18-16137
Plaintiff-Appellant, D.C. No.
2:17-cv-01299-KJD-NJK
v.
KILOLO KIJAKAZI, Acting MEMORANDUM*
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted May 9, 2022
San Francisco, California
Before: W. FLETCHER and BUMATAY, Circuit Judges, and SILVER,** District
Judge.
Dissent by Judge BUMATAY
Nancy Coggeshall appeals from the district court’s affirmance of a decision
of the Commissioner of the Social Security Administration denying her application
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
for supplemental security income under the Social Security Act. We have
jurisdiction under 28 U.S.C. § 1291. “We review the district court’s order
affirming the [administrative law judge’s (“ALJ”)] denial of social security
benefits de novo, and reverse only 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.” Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (citations
omitted). We reverse and remand for further proceedings.
The ALJ’s decision to assign no weight to Dr. Gisler’s opinion is not
supported by substantial evidence. “‘[I]f [a] treating doctor’s opinion is
contradicted by another doctor,’ the ALJ may discount the treating physician’s
opinion by giving ‘specific and legitimate reasons’ that are supported by
substantial evidence in the record.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir.
2020) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). The ALJ gave
no weight to Dr. Gisler’s opinion on the grounds that “there are no treatment
records” of Dr. Gisler, and that Dr. Gisler’s opinion “is not consistent with other
substantial evidence of record” because “the limitations set forth in th[e] opinion
are so extreme as to appear implausible.”
However, the ALJ erred in concluding that there are no treatment records of
Dr. Gisler. The ALJ simply missed them in the administrative record. Further,
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substantial evidence does not support the finding that Dr. Gisler’s opinion is
extreme and therefore implausible. Dr. Gisler indicated that Coggeshall could not
lift or carry any amount of weight, and could not bend, squat, crawl, climb, or
reach above shoulder level. The question posed to Dr. Gisler is whether
Coggeshall can perform those actions “for an 8-hour day, 5 days a week in a
consistent and ongoing manner” (emphasis added). (The analogous questionnaires
in the administrative record, given to other medical evaluators, asked whether and
how often Coggeshall can perform the actions “in” an 8-hour day.) Because Dr.
Gisler’s opinion only indicates that Coggeshall cannot perform the listed actions
consistently for the entire duration of an 8-hour day, it is neither extreme nor
implausible. The ALJ thus has not provided “specific and legitimate reasons” for
completely discounting Dr. Gisler’s opinion. Id. (quoting Lester, 81 F.3d at 830).
Further, under 42 U.S.C. § 405(g), remand is appropriate where the onset
date of a successful application closely follows a denial of benefits for an earlier
period, and where the initial denial and later award are not easily reconcilable on
the record before us. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). The
ALJ denied Coggeshall’s first application for supplemental security income on
September 15, 2015, with an onset date of June 12, 2013. Another ALJ later
awarded benefits to Coggeshall with an onset date of September 16, 2015. The
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second ALJ noted Coggeshall’s Lyme disease diagnosis and found “persuasive”
the opinion of Dr. Sparks. Dr. Sparks, in turn, had relied on the opinion of Dr.
Gisler, to which the first ALJ assigned no weight. The initial denial and later award
are not easily reconcilable on the record before us. We thus REVERSE and
REMAND for further proceedings. Although it is a close question, we DENY
Coggeshall’s motion to remand with direction to calculate and pay benefits (Dkt.
No. 33).
REVERSED AND REMANDED.
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FILED
JUN 9 2022
Nancy Coggeshall v. Kijakazi, No. 18-16137
MOLLY C. DWYER, CLERK
BUMATAY, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I dissent because the panel majority nickels-and-dimes the ALJ’s decision and
misapplies our precedent on remands.
The panel majority fails to apply the highly deferential substantial evidence
standard. Substantial evidence is a low bar that requires only “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). That bar is clearly met here.
In giving Dr. Gisler’s opinion no weight, the ALJ explained that the opinion on
Coggeshall’s limitations was so extreme as to appear implausible. Dr. Gisler
reported that beginning in 2009, Coggeshall couldn’t lift or carry any amount of
weight and couldn’t sit, stand, and walk for more than an hour. But this opinion
clashed with Coggeshall’s own testimony that she worked through 2013 and spent
4−6 hours sitting each day.
The panel majority claims that because the questionnaire posed to Dr. Gisler
used the preposition “for” instead of “in,” the ALJ’s extreme and implausible
rationale cannot be credited. Majority 3. That’s a misreading of the evidence. The
questionnaire clearly asked Dr. Gisler to explain how many hours Coggeshall could
perform each task within a standard workday. And Dr. Gisler gave her opinion based
on that clear question. But even if the use of “for” created some ambiguity as to how
Dr. Gisler understood the questionnaire, the ALJ’s interpretation must be conclusive.
1
That’s black letter law. “[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.” Molina, 674 F.3d at 1111.
There’s also no reason to remand under 42 U.S.C. § 405(g) because the two
proceedings were based on changed circumstances. In the second proceeding, the
ALJ noted that Coggeshall presented “changed circumstances, namely a change in
age category along with allegations and evidence showing worsening of her
impairments and new impairments not considered in the prior final decision.” Part
of those changes included worsening physical conditions and a new cancer
diagnosis. Under these circumstances, we should’ve denied remand like we’ve done
before. See Bruton v. Massanari, 268 F.3d 824, 826−27 (9th Cir. 2001) (rejecting a
remand request based on an award of benefits starting from one day after the denial
of an initial application for benefits because the “second application involved
different medical evidence, a different time period, and a different age
classification”).
I respectfully dissent.
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