Birgit Putz v. Michael Astrue

FILED
NOT FOR PUBLICATION MAR 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
BIRGIT Y. PUTZ, No. 09-35329
Plaintiff - Appellant, D.C. No. 3:08-cv-05290-RBL
v.
MEMORANDUM *
MICHAEL J. ASTRUE,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted March 8, 2010
Seattle, Washington
Before: TASHIMA, FISHER and BERZON, Circuit Judges.
Birgit Y. Putz appeals from the district court's order affirming the
Commissioner's decision denying Social Security Disability Insurance benefits.
Because the Administrative Law Judge's (ALJ) determinations discrediting various
sources of evidence are not supported by substantial evidence, we reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The ALJ offered six reasons for discrediting Putz's testimony regarding the
severity of her symptoms: (1) Putz's statement to Dr. Gan that she had been feeling
well until just a few weeµs prior to an office visit on May 30, 2002; (2) 'there is no
objective medical evidence to support the severity of her symptoms'; (3) since
December 2001, 'the claimant has seen numerous physicians but none of them
have given the claimant a firm diagnosis of chronic fatigue'; (4) Putz 'is not taµing
any prescribed medication'; (5) Putz 'is only receiving treatment from a
naturopath'; and (6) 'claimant did not receive any psychiatric treatment prior to
her date last insured.'
The ALJ's reasons for discrediting Putz's testimony are not 'clear and
convincing.' Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). (1) Putz's
statement to Dr. Gan that she had 'felt well' prior to suffering heart palpitations
and a rapid heart rate in May 2002 related to her heart problems rather than her
chronic fatigue. (2) Putz need not present objective medical evidence to
demonstrate the severity of her fatigue. Smolen v. Chater, 80 F.3d 1273, 1282 (9th
Cir. 1996). (3) Two acceptable medical sources have diagnosed Putz with chronic
fatigue syndrome; no physician has contradicted or questioned those diagnoses.
(4) Putz 'tried various anti-depressants and anti-anxiety medications off and on for
a long time.' (5) Putz received treatment from various medical doctors, including
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a psychiatrist, an infectious disease specialist, a rheumatologist, two cardiologists
and an endocrinologist. Putz's reliance on naturopathic care does not defeat her
claim. See Social Security Ruling ('SSR') 99-2p. (6) Putz used antidepressant
medications and saw a psychiatrist prior to December 2001.
The Commissioner argues that the adverse credibility determination
nonetheless is supported by substantial evidence because in 1996 Putz declined Dr.
Data's suggestion to visit a chronic fatigue clinic in Seattle. An unexplained, or
inadequately explained, failure to seeµ treatment or follow a prescribed course of
treatment can be a basis to discount a claimant's symptom testimony. Fair v.
Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The ALJ, however, never offered Putz
an opportunity to explain her decision not to visit the Seattle clinic. The
Commissioner also overlooµs Dr. Data's assessment that Putz, as a general matter,
'has been very compliant' in following treatment recommendations. Moreover,
this factor was not relied upon by the ALJ and is therefore not a proper basis for
upholding the Commissioner's adverse credibility determination. See Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ('We are constrained to review the
reasons the ALJ asserts.').
The ALJ's disregard for statements of Dr. Data, Putz's treating medical
source since 1994, also is not supported by substantial evidence. The ALJ gave
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'no weight' to Dr. Data's residual functional capacity evaluation and 'little
weight' to her 2003 letter. According to Social Security Ruling 99-2p, the ALJ
should 'carefully consider' information provided by treating naturopaths.
Statements by naturopaths 'may be very useful in deciding the individual's
credibility, . . . to assess an individual's ability to function on a day-to-day basis
and to depict the individual's capacities over a period of time.' SSR 99-2p. Dr.
Data was Putz's primary care provider, observed Putz for more than a decade and
witnessed the changes brought about by Putz's illness. She was therefore well
positioned to offer useful information regarding the severity of Putz's fatigue, and
the ALJ's reasons for discounting Dr. Data's statements are inadequate. Dr. Data's
statements were consistent with her March 25, 2002 treatment notes. Although her
February 16, 1999 treatment notes contain a single notation that is potentially
inconsistent with her statements, the ALJ decision to credit this single notation was
unreasonable in light of the evidence as a whole.
The ALJ's determination to give 'little weight' to the testimony of two lay
witnesses, Drena Putz and Louella Martin, also is not supported by substantial
evidence. The ALJ discredited their testimony because it was (1) vague; (2) based
on Putz's subjective assertions; (3) not supported by the record; and (4) not time
specific. In fact, their testimony was specific and probative, based on personal
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observations of Putz and consistent with the testimony and medical documentation
in the record as a whole. The testimony was vague as to time, but not so vague as
to negate its probative value, especially given that the ALJ made no effort to elicit
more specific information from the witnesses. The witnesses' testimony was
probative, not only to corroborate other evidence regarding Putz's present day
limitations, but also to document the 'substantial reduction in [Putz's] previous
levels of occupational, educational, social, [and] personal activities.' SSR 99-2p.
The ALJ therefore should have given the testimony greater weight. See Stout v.
Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006) ('In determining whether a claimant
is disabled, an ALJ must consider lay witness testimony concerning a claimant's
ability to worµ.').
We reverse and remand for a calculation of benefits. See Orn v. Astrue, 495
F.3d 625, 639 (9th Cir. 2007).
REVERSED AND REMANDED.
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FILED
Putz v. Astrue, No. 09-35329 MAR 22 2010
MOLLY C. DWYER, CLERK
TASHIMA, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
This court may set aside a decision of the Commissioner of Social Security
only if it is unsupported by substantial evidence or is based on legal error.
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Because the ALJ
provided clear and convincing reasons for his decision, supported by substantial
evidence, I would affirm.
First, Putz stated to Dr. Gan that she had been feeling well until a few weeµs
prior to May 30, 2002. While this statement could be interpreted to refer to Putz's
heart problems, as does the majority, that is not the only rational interpretation -
the statement could just as well have referred to Putz's general health, including
her fatigue. See id. Thus, this evidence supports the ALJ's finding that Putz was
not disabled in December 2001.
Second, no objective medical evidence supported the claimed severity of
Putz's symptoms. 'Although lacµ of medical evidence cannot form the sole basis
for discounting [a claimant's] testimony, it is a factor that the ALJ can consider in
his credibility analysis.' Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
Third, Putz did not seeµ aggressive treatment consistent with the claimed
severity of her symptoms. '[E]vidence of 'conservative treatment' is sufficient to
discount a claimant's testimony . . . .' Parra v. Astrue, 481 F.3d 742, 751 (9th Cir.
2007). The ALJ noted that Putz was not taµing prescribed medication and was
only receiving treatment from a naturopath. Although Putz visited various doctors,
the ALJ reasonably concluded that these doctors did not provide 'treatment.' See
20 C.F.R. y 404.1502 (noting that treatment is marµed by an ongoing relationship).
At the hearing before the ALJ, Putz's own counsel asµed her why she had not
sought more treatment, and Putz responded only that her naturopath had nothing
more to offer. The ALJ, therefore, reasonably found that Putz did not adequately
explain her failure to seeµ treatment and properly considered this as a factor. See
Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc).
Fourth, Putz's naturopath, Dr. Data, is not an 'acceptable medical source',
and her opinions are not entitled to controlling weight. Soc. Sec. Rul. 06-03p. The
ALJ reasonably discounted her statements because they were based primarily on
Putz's subjective complaints. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th
Cir. 2008). Dr. Data's letter supporting Putz's disability claim was written almost
two years after the alleged disability, was conclusory, and admitted that Putz's
physical examinations showed no abnormal findings. Furthermore, on February
16, 1999, the visit prior to Putz's alleged disability onset date, Dr. Data wrote that
Putz had good energy.
The majority states that '[t]wo acceptable medical sources have diagnosed
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Putz with chronic fatigue syndrome; no physician has contradicted or questioned
those diagnoses.' But that statement only begs the question. No one questions
that Putz has CFS; what is at issue is the severity of her CFS, and that is the nub of
the case before us. Much of the evidence in this case is susceptible to differing
interpretations and our role is not to second-guess the ALJ's rational interpretation
of the evidence. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Even if this
court discounts some of the ALJ's reasons for discrediting Putz's testimony, as
does the majority, the remaining evidence is substantial and sufficiently supports
the ALJ's decision. Carmicµle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162
(9th Cir. 2008).
For these reasons, I would affirm the decision of the Commissioner and the
district court and respectfully dissent.
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