Cindy Taylor v. Nancy Berryhill ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 1 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINDY L. TAYLOR, No. 16-35594
Plaintiff-Appellant, D.C. No. 6:15-cv-00284-SB
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Stacie F. Beckerman, Magistrate Judge, Presiding
Submitted April 27, 2018**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Cindy Taylor appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Taylor’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review the
*
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).
district court’s order de novo, and the agency’s decision for substantial evidence.
Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). We reverse and
remand for further proceedings.
The Administrative Law Judge (“ALJ”) failed to provide clear and
convincing reasons supported by substantial evidence to support her conclusion
that Taylor’s testimony was not entirely credible regarding the intensity of her
symptoms. See Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the
ALJ improperly discredited Taylor’s testimony based on limited medical treatment
without adequately considering Taylor’s explanation that additional or better health
care was not available from her no-cost health care provider. See Orn v. Astrue,
495 F.3d 625, 638 (9th Cir. 2007).
Second, the ALJ erred in discrediting Taylor’s testimony on the basis that
she was not compliant with her medications, because the record does not support a
determination that medication noncompliance affected Taylor’s symptoms. See
Trevizo v. Berryhill, 871 F.3d 664, 681 (9th Cir. 2017).
Third, the ALJ erred in discrediting Taylor’s testimony concerning her daily
activities. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (inconsistent
testimony may support an adverse credibility finding). The ALJ rejected Taylor’s
testimony that anger issues prevented her from working with other people, finding
that this testimony was inconsistent with Taylor’s ability to call on numerous
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friends for support. However, the ALJ’s finding is not supported by the record,
because Taylor’s testimony was not inconsistent. Instead, she testified that she
also avoided her friends because she couldn’t “even put up with them most of
time.”
We reject as unsupported by the record the government’s argument that the
ALJ found Taylor not credible based on her application for unemployment
benefits.
Assuming that Taylor’s testimony regarding her physical impairments was
not supported by the objective medical evidence, the ALJ cannot properly rely on
that as the sole reason to discredit her testimony. See Burch v. Barnhart, 400 F.3d
676, 681 (9th Cir. 2005) (explaining that lack of objective medical evidence cannot
be the sole reason to discredit claimant testimony). We may not affirm the ALJ
based on additional evidence in the record that the ALJ did not rely upon. See Stout
v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (concluding
that the court can rely only on the grounds offered by the ALJ to affirm the
Commissioner’s decision).
The ALJ did not have a duty to develop the record further concerning
Taylor’s mental limitations. See McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir.
2011). The agency’s reviewing mental experts sufficiently translated the
examining expert’s opinion into specific social interaction limitations.
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Taylor argues that the ALJ erred by concluding at Step 2 that her bipolar
disorder was not a severe impairment. We find that any error is harmless, because
the ALJ considered Taylor’s bipolar-related limitations in determining Taylor’s
residual functional capacity. See Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th
Cir. 2017) (“Step two is merely a threshold determination, meant to screen out
weak claims.”).
Taylor waived any challenge to the ALJ’s review of the lay evidence by
failing to argue the issue with any specificity in her opening brief. See Carmickle v.
Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th Cir. 2008).
Remand for further proceedings is proper because outstanding issues in the
record remain that must be resolved before a determination of disability can be
made, including further developing the record regarding Taylor’s social limitations
and weighing Taylor’s testimony with the other evidence. See Leon v. Berryhill,
880 F.3d 1041, 1047 (9th Cir. 2018) (explaining that remand for further
administrative proceedings is appropriate when there are additional issues to be
resolved prior to any determination of disability).
REVERSED AND REMANDED.
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