Carolyn Hanes v. Carolyn Colvin , 651 F. App'x 703 ( 2016 )


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  •                                                                             FILED
    NOT FOR PUBLICATION
    JUN 10 2016
    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    CAROLYN M. HANES,                                No. 14-16055
    Plaintiff - Appellant,             D.C. No. 2:13-cv-00309-SRB
    v.
    MEMORANDUM*
    CAROLYN W. COLVIN, Commissioner
    of Social Security,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the District of Arizona
    Susan R. Bolton, District Judge, Presiding
    Argued and Submitted May 9, 2016
    San Francisco, California
    Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.
    Carolyn M. Hanes appeals from the district court’s order affirming the
    Administrative Law Judge’s (ALJ) denial of benefits. We have jurisdiction under
    28 U.S.C. § 1291, and we review de novo. Treichler v. Comm’r of Soc. Sec.
    Admin., 
    775 F.3d 1090
    , 1098 (9th Cir. 2014).
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    The ALJ’s reasons for rejecting Hanes’s testimony regarding the severity of
    her symptoms were “specific, clear and convincing,” see 
    id. at 1102,
    and were
    supported by substantial evidence. In making his adverse credibility
    determination, the ALJ determined that Hanes’s description of extreme pain and
    disability was inconsistent with her description of her daily activities, which
    included cooking, cleaning, doing laundry, driving, shopping, visiting with family,
    and traveling. See Molina v. Astrue, 
    674 F.3d 1104
    , 1112–13 (9th Cir. 2012).
    Moreover, the ALJ supported his conclusion with evidence of Hanes’s
    conservative treatment plan, which consisted primarily of minimal medication,
    limited injections, physical therapy, and gentle exercise. See Parra v. Astrue, 
    481 F.3d 742
    , 751 (9th Cir. 2007). The ALJ did not err in giving slight weight to his
    personal observations of Hanes’s functioning at the hearing because the
    observations did not form the “sole basis” of his adverse credibility determination.1
    Orn v. Astrue, 
    495 F.3d 625
    , 639 (9th Cir. 2007). The ALJ also found that the
    objective medical evidence in the record included evidence that Hanes’s condition
    improved with treatment.
    1
    Any error in the ALJ’s speculation of Hanes’s sleeping patterns was
    therefore harmless. See 
    Treichler, 775 F.3d at 1099
    .
    2
    The ALJ’s residual functional capacity assessment was supported by
    substantial evidence. In light of the conflicting medical opinions, the ALJ gave
    “specific and legitimate reasons” for discounting the treating physicians’ opinions,
    and those reasons were supported by substantial evidence. See Hill v. Astrue, 
    698 F.3d 1153
    , 1159–60 (9th Cir. 2012). The ALJ properly concluded that Dr.
    Hawkins’s and Dr. Pena’s functional assessments were not supported by clinical or
    diagnostic findings. See Tommasetti v. Astrue, 
    533 F.3d 1035
    , 1041 (9th Cir.
    2008). In addition, the ALJ reasonably relied on his findings regarding Hanes’s
    daily activities, her conservative treatment, and her positive response to that
    treatment to conclude that the assessments of Dr. Hawkins and Dr. Pena were
    inconsistent with the objective evidence in the record. The ALJ similarly did not
    err in giving little weight to the opinion of Hanes’s examining physician, Dr.
    Mansfield. Dr. Mansfield diagnosed only minimal mental limitations, his
    description of Hanes’s medical issues was contradicted by the objective evidence
    in the record, and he deferred to Hanes’s physician regarding her ability to sustain
    gainful employment. The dissent engages in an extensive review and evaluation of
    the medical records and testimony, but, “as we reiterate in nearly every case where
    we are called upon to review a denial of benefits, we are not triers of fact,” Fair v.
    Bowen, 
    885 F.2d 597
    , 604 (9th Cir. 1989). While “[i]t may well be that a different
    3
    judge, evaluating the same evidence, would have found [Hanes’s] allegations of
    disabling pain credible,” 
    id., so long
    as the ALJ’s interpretation of the record is
    reasonable and supported by substantial evidence, we may not second-guess it.
    Rollins v. Massanari, 
    261 F.3d 853
    , 857 (9th Cir. 2001).
    Even if the ALJ erred in rejecting the testimony of Hanes’s husband for not
    being under oath, that error was harmless. See 
    Treichler, 775 F.3d at 1099
    . The
    ALJ gave clear and convincing reasons for rejecting Hanes’s testimony, and
    Hanes’s husband’s testimony merely parroted her complaints. See 
    Molina, 674 F.3d at 1117
    .
    In concluding that Hanes could perform work, the ALJ reasonably relied on
    the vocational expert’s (VE) testimony given in response to the ALJ’s
    hypothetical. The hypothetical contained all of Hanes’s limitations that the ALJ
    found were supported by the record, Bayliss v. Barnhart, 
    427 F.3d 1211
    , 1217 (9th
    Cir. 2005), so the ALJ did not err in excluding limitations from Dr. Hawkins and
    Dr. Pena. Moreover, the ALJ did not err by declining to credit the VE’s testimony
    in regards to a hypothetical that included moderate mental limitations. The
    moderate mental limitations were not supported by the record because they were
    taken from a reviewing physician’s check-the-box form, which is entitled to little
    weight, see 
    Molina, 674 F.3d at 1111
    –12, and were contradicted by the same
    4
    reviewing physician’s conclusion that Hanes’s mental capacity enabled her to
    perform unskilled work on a sustained basis. See 
    id. AFFIRMED. 5
                                                                                FILED
    Hanes v. Colvin, No. 14-16055
    JUN 10 2016
    WATFORD, Circuit Judge, dissenting:                                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    Our review in Social Security cases is “highly deferential,” Valentine v.
    Commissioner, Social Security Administration, 
    574 F.3d 685
    , 690 (9th Cir. 2009),
    but that deference has limits. We can uphold an ALJ’s decision only if it applies
    the correct legal standards and is supported by substantial evidence. The ALJ’s
    decision in this case fails to clear that bar.
    Let’s start with the ALJ’s determination that Hanes’ testimony that she
    suffers from persistent, disabling pain was “less than fully credible.” Because
    Hanes presented evidence of several underlying impairments, including
    fibromyalgia and degenerative disc disease, and because the record contains no
    affirmative evidence of malingering, the ALJ needed to provide “specific, clear,
    and convincing” reasons for discounting her testimony. Burrell v. Colvin, 
    775 F.3d 1133
    , 1136–37 (9th Cir. 2014); see Carmickle v. Commissioner, 
    533 F.3d 1155
    , 1160 n.1 (9th Cir. 2008).
    None of the ALJ’s five reasons for discounting Hanes’ testimony holds
    water. First, Hanes’ daily living activities—which included preparing light meals,
    folding laundry, and maintaining a minimum standard of hygiene—weren’t
    inconsistent with her claims of frequent, debilitating pain, so they don’t provide
    any basis for thinking that she is exaggerating her symptoms. See Garrison v.
    Page 2 of 8
    Colvin, 
    759 F.3d 995
    , 1015–16 (9th Cir. 2014). Second, the ALJ’s finding that
    Hanes had received “essentially routine and/or conservative” treatment, not “the
    type of medical treatment one would expect for a disabled individual,” is frankly
    baffling in light of the record, which indicates that Hanes has relied on high doses
    of a variety of powerful narcotic painkillers (including Opana, Fentanyl, and
    morphine), and that she has undergone spinal injections and radiofrequency
    ablation. It’s unclear what additional treatment she should have sought out, given
    that a neurosurgeon told her back surgery would pose a high risk of complications
    and was unlikely to alleviate her symptoms in any event. See Orn v. Astrue, 
    495 F.3d 625
    , 638 (9th Cir. 2007). Third, the Commissioner concedes that it was
    improper for the ALJ to speculate that Hanes’ irregular sleep patterns were
    attributable to her daytime napping rather than, as she claims, to being frequently
    awoken by pain at night. Fourth, that Hanes didn’t look like she was in pain at the
    hearing isn’t independently sufficient to support a denial of benefits. See Fair v.
    Bowen, 
    885 F.2d 597
    , 602 (9th Cir. 1989).
    That leaves one remaining rationale for the ALJ’s adverse credibility
    determination: that the medical evidence supposedly indicates she tends to
    exaggerate her symptoms. This last rationale is insufficient as well. Although Dr.
    Cunningham noted “giveaway weakness” in the exam, he stated that the giveaway
    Page 3 of 8
    weakness was “due to pain” and that Hanes gave good effort on the exam. Dr.
    Wasserman opined that Hanes’ symptoms were mostly consistent with
    fibromyalgia, but observed some “concerning conversion type signs” and strongly
    recommended mental-health treatment. The possibility that Hanes suffers from a
    conversion disorder isn’t grounds for concluding that she’s exaggerating her pain,
    only that her pain may be at least partly psychological in origin. See Carradine v.
    Barnhart, 
    360 F.3d 751
    , 754–55 (7th Cir. 2004). All that’s left, then, is Dr.
    Wasserman’s aside that Hanes’ pain may have a “malingering component.” In
    light of the lengthy medical record, which details Hanes’ extensive, fruitless search
    for pain relief and multiple doctors’ acceptance of her complaints as genuine, that
    comment is too thin a reed to support the ALJ’s finding that Hanes exaggerated her
    symptoms.
    The ALJ’s improper credibility finding wasn’t the only flaw in his
    reasoning. He also failed to give “germane” reasons for disregarding the “third-
    party function reports” submitted by Hanes’ husband. See Rounds v.
    Commissioner, 
    807 F.3d 996
    , 1007 (9th Cir. 2015). Hanes’ husband didn’t simply
    parrot her subjective complaints of pain but instead described her limited abilities
    around the house, as he was well qualified to do. See Dodrill v. Shalala, 
    12 F.3d 915
    , 918–19 (9th Cir. 1993). The fact that his account of Hanes’ functional
    Page 4 of 8
    limitations corroborated hers was reason to think that both were telling the truth,
    not a germane reason for discrediting his reports. The ALJ concluded in the
    alternative that, even if the husband’s statements were credited, they established
    only that Hanes engaged in daily living activities that indicated she could engage in
    light work. But those activities were consistent with her claims of disabling pain,
    so her husband’s statements didn’t support the ALJ’s conclusion that Hanes was
    able to work.
    Finally, the ALJ erred in weighing the medical evidence. He improperly
    discounted the opinions of Hanes’ treating physicians, both of whom assessed
    Hanes as having functional limitations incompatible with full-time work. Instead,
    the ALJ credited the opinions of an examining physician and a non-examining
    physician, both of whom found that Hanes’ impairments didn’t preclude her from
    engaging in light work. The ALJ failed to provide the “specific and legitimate”
    reasons required by our case law to support that decision. See 
    Garrison, 759 F.3d at 1012
    .
    Hanes’ primary care physician, Dr. Hawkins, reported that Hanes had been
    diagnosed with fibromyalgia, bipolar disorder, and degenerative disc disease,
    which severely limited her physical functioning. He also opined that pain,
    dizziness, and fatigue limited her ability to sustain normal work and that her
    Page 5 of 8
    medication caused side effects such as impaired judgment and hypersomnolence.
    The ALJ rejected that opinion on the grounds that it was (1) “not supported by
    objective evidence and . . . inconsistent with the record as a whole”; (2) conclusory
    and unsupported by objective clinical or diagnostic findings; and (3) inconsistent
    with the finding that Hanes pursued only conservative treatment and was cleared to
    attend an exercise class.
    Again, none of those reasons hold up. The first is both meaningless
    boilerplate and contrary to the record, which contains objective evidence of lower-
    back disorders, multiple diagnoses of fibromyalgia supported by positive “tender
    point” tests, and Hanes’ own testimony. Although the second rationale might have
    been valid had Dr. Hawkins supplied only a check-the-box form, see Molina v.
    Astrue, 
    674 F.3d 1104
    , 1111 (9th Cir. 2012), his opinion was instead supported by
    extensive treatment notes, including those of the specialists to whom he referred
    her. The ALJ therefore erred by discounting Dr. Hawkins’ opinion on this basis.
    See 
    Garrison, 759 F.3d at 1014
    n.17. The third rationale cannot stand because, as
    discussed above, Hanes’ treatment was anything but “conservative.” Nor does the
    record support the ALJ’s conclusion that Hanes’ participation in a light aerobic
    exercise program was inconsistent with Dr. Hawkins’ assessment that she couldn’t
    stand or walk for more than two hours a day or lift more than ten pounds.
    Page 6 of 8
    Dr. Peña, who worked in Dr. Hawkins’ office, assessed Hanes as having
    similar limitations. The ALJ’s reasons for discounting Dr. Peña’s opinion tracked
    those for discounting Dr. Hawkins’ opinion and were similarly faulty. Moreover,
    the ALJ compounded these errors by discounting Peña’s opinion on the erroneous
    ground that Peña “precluded the claimant from driving, yet the claimant drives.”
    Hanes testified that, although she has a driver’s license, she drives just once a
    month and has “problems” doing so because her medications make her “real
    foggy.” That perhaps supplied reason to think she shouldn’t be behind the wheel,
    but it is not a valid basis for discounting her treating physician’s opinion. The ALJ
    also discounted Peña’s opinion because there was no “objective evidence” that he
    actually examined her, but Hanes testified at the hearing that Peña gave her a
    physical exam when he completed his statement. That testimony must be credited
    because the ALJ found Hanes “less than fully credible” only in describing the
    severity and limiting effects of her pain and depression.
    Instead of heeding Hanes’ treating physicians, the ALJ credited the opinion
    of an examining physician, Dr. Cunningham, who opined that she had moderate
    functional limitations that didn’t preclude her from working. The ALJ gave three
    reasons for giving “great weight” to Dr. Cunningham’s opinion: (1) Dr.
    Cunningham found functional limitations that were “essentially the same” as those
    Page 7 of 8
    of the ALJ’s own residual functional capacity (RFC) assessment; (2) Dr.
    Cunningham personally observed and examined Hanes; and (3) Dr. Cunningham’s
    “findings upon examination are consistent with the findings in the record.” The
    first rationale was circular. Because the ALJ purported to base his RFC assessment
    on the medical evidence, consistency with that assessment wasn’t a legitimate
    reason, grounded in substantial evidence, for crediting or discrediting the medical
    evidence. As for the second rationale, the fact that Dr. Cunningham personally
    observed and examined Hanes once was not a legitimate reason to credit his
    opinion over those of her treating physicians, who personally observed and
    examined her numerous times. The third rationale was mere boilerplate, not a
    specific, substantive basis for crediting Dr. Cunningham’s opinion over those of
    the two treating physicians. See 
    Garrison, 759 F.3d at 1012
    –13.
    The ALJ also gave significant weight to the opinion of a non-examining
    physician (apparently Dr. Fujikami), who reviewed Hanes’ medical records and
    concluded that she retained the ability to do light work. It’s settled that a non-
    examining physician’s opinion alone is not substantial evidence that justifies the
    rejection of a treating or examining physician’s opinion. See Lester v. Chater, 
    81 F.3d 821
    , 831 (9th Cir. 1995). The ALJ gave significant weight to this opinion
    “[f]or the same reasons” he credited Dr. Cunningham’s, but none of those reasons
    Page 8 of 8
    were legitimate, and the second was particularly inapt as a reason for crediting the
    opinion of a non-examining physician. The ALJ’s only other reason for crediting
    the non-examining physician’s opinion was simply that it was “consistent with the
    objective evidence of record.” Such boilerplate is not a specific and legitimate
    reason for crediting a non-examining physician’s opinion over the opinions of the
    treating physicians.
    In sum, the ALJ failed to offer adequate reasons for discrediting Hanes’
    testimony and her husband’s reports, or for discounting her treating physicians’
    opinions regarding her functional limitations. If we credit the improperly
    discredited evidence as true, see Benecke v. Barnhart, 
    379 F.3d 587
    , 593–96 (9th
    Cir. 2004), the record compels the conclusion that Hanes is disabled. I would
    therefore reverse and remand with instructions to award benefits.