Ernest Kish, Jr. v. Carolyn W. Colvin , 552 F. App'x 650 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNEST KISH, Jr., No. 12-35867
Plaintiff - Appellant, D.C. No. 3:11-cv-06045-KLS
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner,
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Karen L. Strombom, Magistrate Judge, Presiding
Argued and Submitted November 4, 2013
Seattle, Washington
Before: SCHROEDER, PAEZ, and BERZON, Circuit Judges.
Claimant Ernest Kish, Jr. appeals the denial of his application for disability
insurance benefits. The denial of benefits was affirmed below by a magistrate
judge reviewing on consent of the parties.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The Administrative Law Judge (“ALJ”) denied Claimant’s application by
relying primarily on a determination that Claimant was not credible and
discounting a psychological evaluation concluding that he suffers from depression.
The ALJ discounted the psychological evaluation conducted by Dr. Jeffrey
Hart concluding that Claimant suffered from depression. The evaluation was
completed more than a year after Claimant’s last insured date. Tidwell v. Apfel,
161 F.3d 599, 601 (9th Cir. 1998) (the disability must exist “on or before” the
applicant’s last insured date). The ALJ mentioned the timing factor, but gave other
reasons for declining to consider Dr. Hart’s evaluation. The district court,
however, primarily relied on the timing consideration in affirming the ALJ’s
rejection of Dr. Hart’s evaluation. Evaluations conducted after the last insured date
can still be relevant to assessing a claimant’s condition during the appropriate
period. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). There is no basis
for concluding that Claimant’s condition as evaluated by Dr. Hart did not exist
prior to his last insured date, and the ALJ offered none. There was therefore no
basis for discounting the weight of Dr. Hart’s evaluation because of timing.
As the district court observed, the ALJ erred in discounting Dr. Hart’s
opinion on the ground that petitioner had paid for it. Lester v. Chater, 81 F.3d 821,
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832 (9th Cir. 1995) (absent evidence of actual improprieties, an evaluation cannot
be dismissed because of the motive for obtaining it).
We agree with the district court’s conclusion that many of the reasons given
to discredit Claimant’s testimony were invalid. The ALJ and the district court
determined, nonetheless, that Claimant’s testimony as to his physical condition and
daily activities was inconsistent with his attendance at school. However, any
inconsistency between Kish’s attendance at a full-time vocational education
program and his testimony regarding his limited daily activities is not sufficiently
substantial to support the ALJ’s credibility finding. Moreover, the record shows
that Claimant received accommodations to aid his school attendance. School
attendance is often not as physically taxing as full-time employment, and it is not
clear from the record that Claimant was able to sustain school attendance even with
the accommodation. The ALJ’s finding that Claimant’s testimony was not credible
is not supported by substantial evidence. On remand, the ALJ must therefore
credit claimant’s testimony as to the severity of his symptoms, including his
testimony as to pain, or make an adverse credibility finding that is supported by
substantial evidence.
Dr. Hart’s evaluation was objective medical evidence indicating that
Claimant suffered from depression, and the record was ambiguous only as to the
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severity of the condition. The Claimant requested a consultative examination to
resolve inadequacies and ambiguities in the medical record as to his depression.
Where the evidence is inadequate or ambiguous, the ALJ has a duty to conduct an
appropriate inquiry. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)
(quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)). When the
severity of a claimant’s disorder cannot be determined, the appropriate course is to
request a consultative evaluation, and failure to do so is good cause for remand.
Carrillo Marin v. Sec’y of Health and Human Servs., 758 F.2d 14, 17 (1st Cir.
1985). The ALJ should have ordered a consultative evaluation.
The ALJ also erred by disregarding Claimant’s limited ability to do work
with his dominant left hand. The left-hand limitation was documented in a
physical capacities evaluation, which Claimant’s treating doctor, Dr. Nehls
adopted, and was supported by examining physician Dr. James F. Harris’
evaluation. Dr. Nehls’ opinion is uncontroverted and should be given controlling
weight. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). On remand, the ALJ
should include that limitation in the residual functional capacity assessment. We
therefore reverse and remand for further development of the record in accordance
with this disposition.
REVERSED and REMANDED.
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