April West v. Carolyn Colvin , 609 F. App'x 463 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 06 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
APRIL DENISE WEST, No. 13-15741
Plaintiff - Appellant, D.C. No. 2:12-cv-01542-NVW
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted June 10, 2015
San Francisco, California
Before: HAWKINS and WATFORD, Circuit Judges and RAKOFF,** Senior
District Judge.
April West (“West”) appeals the district court’s order upholding the final
decision of the Commissioner of the Social Security Administration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
(“Commissioner”), which denied her disability insurance benefits. West contends the
administrative law judge (“ALJ”) improperly discounted the weight of an examining
physician’s opinion and did not give sufficient reasons to reject West’s testimony
regarding her symptoms and limitations. We affirm in part and reverse in part.
We agree with West that the ALJ failed to give “specific and legitimate”
reasons supported by substantial evidence for disregarding state agency examining
physician Dr. Drinkwater’s opinion in favor of the opinion of non-examining agency
physician Dr. Farrell. See Moore v. Comm’r of Soc. Sec., 278 F.3d 920, 924 (9th Cir.
2002). The ALJ’s decision to give Dr. Drinkwater’s opinion little weight appears
based primarily on x-rays taken of West’s spine in June 2008, which Dr. Farrell
reviewed in October 2008. However, Dr. Drinkwater’s opinion appears to have been
based on a MRI of West conducted in February 2009, which he described as “very
abnormal.” These test results were not even available to Dr. Farrell in October, and
the ALJ’s opinion appears to either conflate the two test results or ignore the MRI
entirely. We conclude that the ALJ’s assessment of Dr. Drinkwater’s opinion is not
supported by substantial evidence. See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,
1202 (9th Cir. 2008) (a non-examining doctor’s assessment by itself is not substantial
evidence).
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Contrary to West’s assertion, however, the ALJ did provide “specific, clear and
convincing reasons” for disregarding her subjective report of her limitations.
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The ALJ offered
numerous specific reasons for finding West not fully credible regarding the extent and
severity of her limitations, including a plethora of inconsistent statements West made
to various doctors, her admission in testimony that she did not give Dr. Barry a full
picture of her history in order to be a good candidate for bariatric surgery, her failure
to follow treatment recommendations, and her failure to put forth a good effort at
some examinations. See id. at 1039–40 (discussing the various factors an ALJ may
consider in weighing a claimant’s credibility).
Because we affirm in part and reverse in part, a remand for further proceedings
is warranted. Cf. Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1106 (9th Cir.
2014). We remand with instructions to the district court to remand this case to the
Commissioner for further proceedings.
AFFIRMED in part, REVERSED in part and REMANDED. Each party
shall bear their own costs.
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