Russell Fritz v. Nancy Berryhill

FILED
NOT FOR PUBLICATION
MAR 28 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSSELL FRITZ, No. 15-35629
Plaintiff-Appellant, D.C. No. 3:14-cv-05658-RSL
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted March 24, 2017**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Russell Fritz appeals the district court’s judgment affirming an
Administrative Law Judge’s (“ALJ”) decision denying his application for
Disability Insurance Benefits under Title II of the Social Security Act (“Act”) and
*
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).
Supplemental Security Insurance under Title XVI. We have jurisdiction under 28
U.S.C. § 1291. We review the district court’s order de novo, and may set aside a
denial of benefits only if it is not supported by substantial evidence or is based on
legal error. Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014). We reverse
and remand.
To the extent that the ALJ concluded Fritz’s testimony was not credible
based on the medical record, daily activities, criminal conviction, the opinion of
consultative expert Dr. Pfeiffer, and Fritz’s improvement with treatment, the ALJ
failed to offer “specific, clear and convincing reasons” for finding Fritz not
credible. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citations and
internal quotation marks omitted). First, the ALJ did not identify what testimony
was not credible and what evidence undermined Fritz’s complaints. See
Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (“[P]roviding a
summary of medical evidence in support of a residual functional capacity finding is
not the same as providing clear and convincing reasons for finding the claimant’s
symptom testimony not credible.” (emphasis omitted)). Second, Fritz’s daily
activities do not contradict his reports of disability, see Orn v. Astrue, 495 F.3d
625, 639 (9th Cir. 2007), or demonstrate that he was “able to spend a substantial
part of [his] day engaged in pursuits involving the performance of physical
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functions that are transferable to a work setting,” Vertigan v. Halter, 260 F.3d
1044, 1049 (9th Cir. 2001) (emphasis, citation, and internal quotation marks
omitted). Third, the ALJ did not explain how Fritz’s unrelated 21-year-old robbery
conviction impacted his credibility. Fourth, the ALJ improperly discredited Fritz
based on Dr. Pfeiffer’s assessment because Dr. Pfeiffer’s opinion was contradicted
by his own observations and the medical record as a whole. Fifth, while
improvement with treatment can support an adverse credibility finding if it
conflicts with a claimant’s testimony of a lack of improvement, see Morgan v.
Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999), the ALJ did
not point to any testimony by Fritz that his degenerative disc disease had not
improved.
Although the ALJ’s reliance on Fritz’s inconsistent statements regarding his
headache provided one specific, clear and convincing reason for finding Fritz not
fully credible, the ALJ’s error was not harmless because this reason standing alone
does not amount to substantial evidence. See Carmickle v. Comm’r, Soc. Sec.
Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (“[T]he relevant inquiry . . . is
whether the ALJ’s decision remains legally valid, despite such error.”).
The ALJ also erred in rejecting the contradicted opinion of Fritz’s treating
neurologist, Dr. Olson, without providing “specific and legitimate reasons
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supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.
2007) (citation and internal quotation marks omitted)). Dr. Olson’s opinion was
supported by his clinical observations, not solely by Fritz’s subjective complaints,
and we have already concluded that the ALJ erred in finding Fritz not credible. Cf.
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“An ALJ may reject a
treating physician’s opinion if it is based to a large extent on a claimant’s self-
reports that have been properly discounted as incredible.” (citation and internal
quotation marks omitted)).
Accordingly, we reverse and remand to the district court with instructions to
remand for further administrative proceedings.
REVERSED and REMANDED.
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