Tracy Costa v. Nancy Berryhill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACY THOMAS COSTA, No. 15-16124
Plaintiff-Appellant, D.C. No. 2:12-CV-2591-EFB
v.
NANCY A. BERRYHILL, Acting MEMORANDUM*
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Edmund F. Brennan, Magistrate Judge, Presiding
Argued and Submitted May 16, 2017
San Francisco, California
Before: CANBY and MURGUIA, Circuit Judges, and RUFE,** District Judge.
Appellant Tracy Costa appeals from the decision of the district court
affirming the denial of disability insurance benefits. We have jurisdiction pursuant
to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and will reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Cynthia M. Rufe, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
1. We review de novo the district court’s judgment upholding the denial
of social security benefits, and “may set aside a denial of benefits only if it is not
supported by substantial evidence or is based on legal error.” Lingenfelter v.
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation
omitted). “‘Substantial evidence’ means more than a mere scintilla, but less than a
preponderance; it is such relevant evidence as a reasonable person might accept as
adequate to support a conclusion.” Id. (citing Robbins v. Soc. Sec. Admin., 466
F.3d 880, 882 (9th Cir. 2006)). We must “consider the entire record as a whole,
weighing both the evidence that supports and the evidence that detracts from the
Commissioner’s conclusion and may not affirm simply by isolating a specific
quantum of supporting evidence.” Id. (internal quotation marks and citations
omitted).
2. Costa was diagnosed in 2007 with oculodentodigital dysplasia
(“ODDD”), a rare, progressive genetic disease which manifests in Costa with
syndactyly (fusing of the fingers and toes, for which she had surgery as a child),
peripheral neuropathy, weakness, spasticity, pain, and possible white matter
changes in her brain. Costa also has a history of migraine headaches.
3. The ALJ did not provide a clear and convincing reason supported by
substantial evidence for rejecting Costa’s testimony concerning the severity of her
symptoms. See Lingenfelter, 504 F.3d at 1036. The ALJ highlighted Costa’s daily
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activities and her work history as a flight attendant and caregiver for her daughter.
However, the ALJ failed to consider Costa’s testimony that as her ODDD
progressed she could not engage in even minimal activities several days a week
and required significant help completing household chores, taking care of her
children, driving, and shopping. The ability to accomplish daily tasks irregularly
does not necessarily equate with an ability to work, and “impairments that would
unquestionably preclude work and all the pressures of a workplace environment
will often be consistent with doing more than merely resting in bed all day.”
Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). The evidence in the record
also was insufficient to conclude that Costa’s employment as a home-health aide
for her daughter (which consisted mainly of sleeping nearby in the event that her
daughter suffered an epileptic episode in the night) was incompatible with the
reported limitations or inconsistent with an inability to work. See Orn v. Astrue,
495 F.3d 625, 635 (9th Cir. 2007).
In finding that Costa lacked credibility, the ALJ also cited a lack of evidence
in the record of physical therapy or surgery, but there was no evidence that surgery
was recommended, and although the ALJ referenced Dr. Cheema’s
recommendation of muscle strengthening exercises, the ALJ failed to note that Dr.
Cheema also stated that “there are no therapeutic options that I can offer at this
time.” Lastly, to the extent the ALJ found Costa to lack credibility because her
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migraines were “well controlled” with medication, this finding is not supported by
substantial evidence. Although there were a few instances in the record where
Costa reported her migraines subsided after taking medication, the record as a
whole shows that Costa’s migraines were not well controlled, as she consistently
went to the emergency room for treatment for her severe migraines. See Garrison,
759 F.3d at 1017 & n.23 (noting that an ALJ may not cherry-pick from mixed
results);
4. As Appellee acknowledged, the ALJ also improperly gave no weight
to the testimony of Costa’s husband, which supported Costa’s described
limitations, because he “is not an acceptable medical source as required by the
Regulations, and his overall opinion of the claimant’s functional ability is
inconsistent with the medical opinions of record, the objective findings and the
record as a whole.” Mr. Costa did not testify as a medical witness, and as the ALJ
found him credible, there was no germane reason given for wholly rejecting his
testimony. See Bruce v. Astrue, 557 F.3d 1113, 1115–16 (9th Cir. 2009).
5. Failing to consider fully all of Costa’s described limitations led the
ALJ erroneously to discount the opinions of the treating physicians by determining
incorrectly they were inconsistent with Costa’s own assessment of her physical
abilities and the objective medical evidence. Although the objective medical
evidence is conflicting, a review of the entire record shows that the ALJ, while
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according considerable weight to the nonexamining state agency medical sources,
failed to consider fully the progressive nature of and increasing levels of pain
associated with Costa’s ODDD (which few physicians beyond the diagnosing
physician, Dr. Boyd, are likely to have encountered), the history of Costa’s
medical treatment, including evidence of repeated hospital visits for migraines, the
relief granted by certain medication, the testimony of Costa and her husband as to
symptoms that persist despite the medication, and the apparently limited treatment
options available. See Ghanim v. Colvin, 763 F.3d 1154, 1161–62 (9th Cir. 2014).
6. Having determined that the ALJ erred, “we look at the record as a
whole to determine whether the error alters the outcome of the case.” Molina v.
Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). “ALJ errors in social security cases
are harmless if they are inconsequential to the ultimate nondisability determination
and . . . a reviewing court cannot consider [an] error harmless unless it can
confidently conclude that no reasonable ALJ, when fully crediting the testimony,
could have reached a different disability determination.” Marsh v. Colvin, 792 F.3d
1170, 1173 (9th Cir. 2015) (alteration in original) (internal quotation marks and
citation omitted). In this case, we cannot conclude that the errors were harmless.
The testimony of the Costas and the opinions of the treating physicians constitute
highly probative evidence that must be properly evaluated before determining
whether Costa is disabled.
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7. We therefore reverse and remand to the district court with instructions
to remand, on an open record, to the Social Security Administration for further
proceedings. Because “essential factual issues” concerning the medical evidence
must be resolved, remand for further proceedings, rather than an award of benefits,
is appropriate. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th
Cir. 2014).
REVERSED and REMANDED.
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