Kimberly Robinson v. Carolyn Colvin , 666 F. App'x 687 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 21 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY ANNE ROBINSON, No. 14-16794
Plaintiff-Appellant, D.C. No. 2:13-cv-00488-GMS
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted November 18, 2016
San Francisco, California
Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.
Kimberly Robison1 appeals the district court’s judgment affirming an
administrative law judge’s (ALJ) decision denying her application for disability
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
The district court identified appellant’s name as Robinson, presumably
because the Notice of Appeal filed by her counsel in the district court spelled her
name that way and the court docketed the case with that name. This appears to be
in error as her name is spelled Robison throughout the briefs and record.
insurance benefits under Title II of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291, and we reverse and remand.
The ALJ did not provide “specific, clear and convincing reasons” for
rejecting Robison’s testimony about the severity of her symptoms. Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Smolen v. Chater, 80 F.3d
1273, 1281 (9th Cir. 1996)).
Robison testified that she suffers from bipolar disorder. She goes through
manic and depressive phases. During manic episodes she becomes violent or
angry and has psychotic delusions. She has trouble concentrating, and has racing
thoughts and panic attacks. She testified that she has two or three manic episodes
per month. During depressive episodes she is afraid to go outside, has delusions
that people want to hurt her, and sometimes becomes suicidal. She stays home at
least three to four days per month because of her depression. She testified that she
“often” goes through depressive episodes, averaging two or three episodes per
month. She also testified that the more stress she has, the worse her symptoms
become. In a typical day she gets up, attends to her personal hygiene, eats, and
does some chores. She listens to music and watches television. She testified that
she and her fiancé take care of doing chores and paying bills together, although he
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mainly takes care of the household. She also stated that her fiancé’s mother helps
them with shopping.
The ALJ determined that Robison’s “statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the . . . residual functional capacity assessment.” The
ALJ supported his negative credibility finding by relying on evidence that Robison
attends to her personal care needs, engages in daily living activities, can handle
money, and spends time with others. He also found that she “stopped working for
reasons not related to the allegedly disabling impairments,” namely that she was
fired from her last job. He pointed to her refusal to obtain treatment and failure to
appear at medical appointments as evidence that her impairments are not as severe
as alleged. Finally, he noted her poor earnings history (“further indicating a lack
of motivation to work”), and an inadequate effort finding on a test administered by
a consultative examiner.
The ALJ’s negative credibility finding is not supported by clear and
convincing reasons. First, attending to her personal needs and engaging in daily
living activities at home is not inconsistent with Robison’s testimony that she
experiences mania and depression, and is afraid to leave the home many times per
month. Second, attempting to work—shown by being fired (though the reason for
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termination is not in the record)—does not undermine Robison’s credibility.
Indeed, attempting to work and failing supports her allegations of disabling
symptoms. See Lingenfelter, 504 F.3d at 1038. Third, although Robison may have
missed some appointments and rejected individual counseling, “it is a questionable
practice to chastise one with a mental impairment for the exercise of poor
judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th
Cir. 1996) (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989)).
The ALJ also did not explain how a few missed appointments undermined
Robison’s credibility when there was ample evidence that she obtained and
actively engaged in treatment for years. Cf. Garrison v. Colvin, 759 F.3d 995,
1017 (9th Cir. 2014). Finally, the “inadequate effort” finding was for a breath test,
and did not relate to the severity of her bipolar symptoms. The ALJ did not offer
clear and convincing reasons for rejecting Robison’s testimony concerning the
severity of her bipolar symptoms.
The ALJ also erred in giving “[n]o weight” to the treating nurse
practitioner’s opinion. The opinions of nurse practitioners may “show the severity
of [the claimant’s] impairment(s) and how it affects [the claimaint’s] ability to
work.” 20 C.F.R. § 404.1513(d). To the extent the ALJ concluded the opinion
conflicted with “consistently good mental status examinations,” the ALJ erred by
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not clearly taking the nature of Robison’s mental illness and her entire mental
health history—including multiple hospitalizations—into account. See Holohan v.
Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001).
There are inconsistencies in the medical evidence, and between the medical
evidence and Robison’s testimony, that the ALJ needs to resolve. We remand for
further administrative procedures. Treichler v. Comm’r of Soc. Sec. Admin., 775
F.3d 1090, 1105–06 (9th Cir. 2014).2
REVERSE AND REMAND.
2
Because we are reversing on other grounds, we need not decide whether
the district court should have granted Robison’s subpoena requests. However, we
note that when a party has availed herself of the right to cross-examine physicians
whose reports are crucial to the ALJ’s decision, denial of a subpoena request may
be an abuse of discretion. See Solis v. Schweiker, 719 F.2d 301, 302 (9th Cir.
1983).
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