Cydnee Hardison v. Nancy Berryhill , 703 F. App'x 513 ( 2017 )

FILED
NOT FOR PUBLICATION
JUL 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CYDNEE LYN HARDISON, No. 15-55317
Plaintiff-Appellant, D.C. No.
3:14-cv-00161-MMA-DHB
v.
NANCY A. BERRYHILL, Acting MEMORANDUM*
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted July 20, 2017**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Cyndee Lyn Hardison appeals the district court’s judgment in favor of the
Commissioner of Social Security affirming the administrative law judge’s (“ALJ”)
denial of Hardison’s application for supplemental security income under Title XVI
*
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).
of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and we
vacate and remand for further proceedings.
Hardison contends that she was disadvantaged by the Commissioner’s initial
failure to include in the administrative record filed in the district court the
transcript from her July 26, 2011 hearing before the ALJ. We reject this contention
because Hardison has not identified any way in which her substantial rights were
affected by the Commissioner’s delay in producing the transcript. See Ludwig v.
Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (“The burden is on the party claiming
error to demonstrate not only the error, but also that it affected his ‘substantial
rights,’ which is to say, not merely his procedural rights.”).
Hardison has not waived her right to challenge the ALJ’s adverse credibility
finding in connection with her claim for benefits prior to attaining age 18.
Hardison’s challenge to the ALJ’s adverse credibility finding before the district
court encompassed her claims for benefits as a child and as an adult. The ALJ’s
adverse credibility finding was made in the context of the residual functional
capacity (“RFC”) assessment, which is relevant only to the adult disability
determination. The ALJ relied on findings from the adult determination in the
course of addressing Hardison’s eligibility for childhood benefits.
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The ALJ failed to provide specific, clear and convincing reasons supported
by substantial evidence for finding Hardison’s symptom testimony less than fully
credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the
ALJ neither made specific findings nor pointed to any record evidence to support
his conclusion that Hardison’s daily activities were “transferable” to a work setting
or that she spent a “substantial” part of any day engaged in transferrable skills. See
Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Second, Hardison’s travel as a
minor, accompanied by one or both parents, falls short of the type of extended,
independent travel that supports a reasonable inference that a claimant’s symptom
testimony is not credible. Cf. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir.
2008) (affirming adverse credibility determination based on the claimant’s “ability
to travel to Venezuela for an extended time to care for an ailing sister”). Third, the
ALJ erred in discounting Hardison’s credibility on account of her cancellation of
or failure to show up for three appointments with her psychologist in May, June,
and July 2009. The record contains a notation from the doctor’s office indicating
that Hardison’s mother had called to cancel the May 18, 2009 appointment and had
requested that the appointment be rescheduled. The two apparently unexplained
cancellations or missing of appointments when Hardison was 16 years old fall
short of reflecting a meaningful gap in, or failure to pursue recommended,
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treatment over the course of the relevant period. See Orn, 495 F.3d at 638. Fourth,
because Hardison’s mother reported greater limitations than did Hardison, the
inconsistencies between the Hardison’s testimony and her mother’s testimony do
not support a finding that Hardison was not credible. Fifth, the ALJ’s statement
that “the objective medical evidence does not support the alleged severity of
symptoms” includes no analysis of how or why Hardison’s symptom testimony
was inconsistent with the objective medical evidence, and the ALJ’s decision does
not otherwise discuss any link between the objective medical evidence and the
conclusion that Hardison’s symptom testimony was less than fully credible. See
Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring that an ALJ
support an adverse credibility determination “with findings sufficiently specific to
permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s
testimony”).
Although the ALJ’s adverse credibility determination lacks the requisite
specificity and clarity, it is not clear from the administrative record that the ALJ
would be required to award benefits if Hardison’s symptom testimony were
credited and the conflicting medical evidence were re-evaluated under both the
childhood and adult disability standards. See Treichler v. Comm’r of Soc. Sec.
Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (“Where there is conflicting evidence,
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and not all essential factual issues have been resolved, a remand for an award of
benefits is inappropriate.”). Accordingly, we remand for further proceedings.
Each party shall bear its own costs.
VACATED and REMANDED.
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