Jeana Rawa v. Carolyn Colvin

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 06 2016
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
JEANA BERNICE RAWA, No. 14-17154
Plaintiff-Appellant, D.C. No. 2:13-cv-01318-ROS
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
Argued and Submitted November 15, 2016
San Francisco, California
Before: SCHROEDER, REINHARDT, and OWENS, Circuit Judges.1
Jeana Rawa appeals from the district court’s judgment affirming the
Commissioner of Social Security’s denial of her application for disability
insurance benefits. The administrative law judge (“ALJ”) found that Rawa was not
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
Judge Owens only joins Part I of this disposition.
disabled because she had the residual functional capacity (“RFC”) to perform her
past relevant work. We review the district court’s decision de novo and will uphold
the Social Security Administration’s disability determination “unless it contains
legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d
625, 630 (9th Cir. 2007).
I. We conclude that the ALJ erred in finding that Rawa was less than credible,
and therefore rejecting her testimony regarding her severe and chronic pain. If, as
in this case, “there is no evidence of malingering,” an ALJ may reject a claimant’s
pain testimony only for “specific, clear and convincing reasons.” Smolen v. Chater,
80 F.3d 1273, 1281 (9th Cir. 1996).
First, the ALJ erred in concluding that Rawa’s activities of daily living were
inconsistent with her claims of debilitating pain and muscle weakness. The ALJ
found that “some of the physical and mental abilities” needed to complete Rawa’s
activities were “the same as those necessary for obtaining and maintaining
employment,” and therefore belied her claims of incapacitating pain and disability.
Yet this conclusion is contradicted by a review of Rawa’s symptom testimony and
function reports. Rawa’s daily activities, as she described them, were in fact
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consistent with her statements regarding the impairments caused by her pain and
other symptoms.
In concluding that Rawa was less than credible, the ALJ repeatedly
mischaracterized Rawa’s level of daily activity. According to the ALJ, Rawa’s
testimony and function reports contradicted her claims of debilitating pain because
she “admitted that she had a driver[’s] license and was able to drive her son to
school,” “admitted that she was able to care for her own personal hygiene,” was
able to participate in “helping prepare dinner,” “help with basic household chores
and grocery shop,” admitted that she “used a computer daily, visited with family,
and watched television,” and “admitted she could lift 30 pounds.” An examination
of the record shows that the ALJ omitted a number of salient and dispositive facts
and details when recounting Rawa’s activity level.
For example, the ALJ stated that Rawa admitted that she could drive her son
to school, but failed to mention that Rawa drove only a few times a week, and that
the school was “right around the corner.” The ALJ stated that Rawa admitted that
she could care for her own personal hygiene, but failed to mention that Rawa could
no longer shave her legs due to pain, that she had difficulty sitting on the toilet, and
trouble putting on socks and shoes. The ALJ stated that Rawa admitted that she
could “help with basic household chores,” but failed to mention that Rawa had to
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fold laundry lying down because of her pain, and could prepare only meals that did
not require her to stand for longer than 20 minutes. Finally, the ALJ stated that
Rawa admitted that she “used a computer daily,” but failed to mention that Rawa
said expressly that she used a computer only when lying on the couch. More
generally, the ALJ failed to recognize that Rawa stated repeatedly that she could
not stand for longer than 20 minutes, could not sit comfortably for longer than 25
minutes, and that she spent seven out of eight hours a day lying down. Such an
inaccurate representation of the record can not constitute a specific, clear, and
convincing reason for rejecting Rawa’s testimony regarding her pain and
weakness.
In addition to ignoring critical and dispositive aspects of Rawa’s activity
level and function reports, the ALJ also erred when he failed to specify which of
Rawa’s activities were inconsistent with her symptom testimony and a finding of
disability. The ALJ’s general statement that “some” of Rawa’s physical and mental
abilities were inconsistent with her claims is not a sufficient basis upon which to
reject her testimony regarding her pain. See Ghanim v. Colvin, 763 F.3d 1154,
1163 (9th Cir. 2014) (holding that “[g]eneral findings are insufficient” to
determine that a claimant is less than credible)(internal quotation marks omitted).
Our circuit has “repeatedly warned that ALJs must be especially cautious in
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concluding that daily activities are inconsistent with testimony about pain, because
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);
see also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (noting that “many
home activities are not easily transferable to what may be the more grueling
environment of the workplace, where it might be impossible to periodically rest or
take medication”). Such caution is called for in this case. There is no indication
that the limited activities Rawa engaged in comprised a “substantial” portion of her
day, or were “transferrable” to a work environment. See Ghanim, 763 F.3d at 1165.
We do not accept the premise that driving around the corner, using a computer
only while lying down, being able to stand for 20 minutes to feed one’s family, and
struggling to put on one’s shoes are consistent with being able to function at a level
necessary for “obtaining and maintaining employment.” It was therefore error for
the ALJ to conclude that Rawa’s daily activities were inconsistent with her
testimony regarding her debilitating pain and muscle weakness.
Second, the ALJ rejected Rawa’s pain testimony on the ground that her
treatment had been “essentially routine and conservative” in nature. The ALJ found
that because Rawa had not pursued “more aggressive treatment or additional
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surgical intervention,” her pain and other symptoms were not as severe as she
alleged. As with the ALJ’s conclusion regarding Rawa’s daily activities, this
finding is also contradicted by the record and is in conflict with our controlling
case law. Contrary to the ALJ’s characterization of Rawa’s treatment as
“conservative,” Rawa underwent extensive testing after her alleged disability onset
date, some of which involved having injections in her spine and metal needles
placed into her legs. She received multiple epidural steroid injections, and was
prescribed a series of pain medications. Such procedures and treatments are neither
routine nor conservative. See, e.g., Garrison, 759 F.3d at 1015 n.20. Additionally,
there is no evidence in the record that Rawa declined other, recommended
treatments. Rawa’s treating physician agreed that her desire to avoid further
surgery was reasonable, and told her that he could not guarantee that future
procedures would not cause her even greater pain. A conservative course of
treatment is “not a proper basis for rejecting the claimant’s credibility where the
claimant has a good reason for not seeking more aggressive treatment.” Carmickle
v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). Because it is
contrary to the record and to the medical opinion of Rawa’s treating physicians, the
ALJ’s finding regarding her course of treatment is not a specific, clear, and
convincing reason for rejecting Rawa’s testimony.
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Finally, the ALJ rejected Rawa’s testimony regarding her debilitating pain
because she did not show signs of muscle atrophy in her spine. Without citing any
medical finding or opinion in the record, the ALJ opined that “muscle atrophy is a
common side effect of prolonged and/or chronic pain,” and concluded that Rawa’s
pain testimony was less than credible because she did not exhibit such atrophy. It is
beyond the scope of the ALJ’s authority to offer such a medical opinion based
solely on his own personal speculation. See Tommasetti v. Astrue, 533 F.3d 1035,
1042 (9th Cir. 2008) (stating that an ALJ may not rely on his “own speculative
explanation”). Because none of the three reasons provided by the ALJ for finding
Rawa less than credible is specific, clear, and convincing, and because each is
contrary to our controlling case law, the ALJ erred in rejecting Rawa’s pain
testimony and in disregarding the impact of such symptoms on her ability to seek
and maintain employment.
II. Because the decision of the ALJ is marked by prejudicial legal error, we
reverse. Further, we agree with Rawa that remand for an award of benefits is
appropriate in this case. We remand to calculate and award benefits when (i) the
record is fully developed and further administrative proceedings would serve no
useful purpose, (ii) the ALJ had not provided legally sufficient reasons for
rejecting the evidence, and (iii) if the improperly discredited evidence were
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credited as true, the ALJ would be required to find the claimant disabled on
remand. Garrison, 759 F.3d at 1020. Each of these factors is met in this case.
On the first factor, the record in this case includes hundreds of pages of
medical reports, Rawa’s testimony before the ALJ, and assessments of her capacity
to do work completed by two treating physicians. There is additionally vocational
expert (VE) testimony directly addressing whether an individual with Rawa’s
alleged limitations would be able to sustain employment. Given this extensive
record, this is not a case in which the admission of more evidence would be
“enlightening.” Cf. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1101
(9th Cir. 2014). As we have previously noted, remand for “the purpose of allowing
the ALJ to have a mulligan” does not qualify as “useful purpose” for granting
further administrative proceedings. Garrison, 759 F.3d at 1022.
On the second factor, we have already discussed supra the ALJ’s failure to
provide legally sufficient reasons for discrediting Rawa’s symptom testimony as to
her severe, chronic pain and muscle weakness. We need not repeat that analysis
here.
As to the third factor, if the improperly discredited evidence were credited as
true, it is clear that the ALJ would be required to find Rawa disabled. The VE’s
testimony at hearing is clear, unopposed, and uncontradicted: if Rawa’s symptom
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testimony is credited as true, Rawa is disabled within the meaning of the Act. Such
a finding by the VE is a sufficient basis upon which to remand for determination of
benefits.
Under the credit-as-true rule, when an ALJ fails to provide legally sufficient
reasons to support a finding of adverse credibility, this court will not “remand
solely to allow the ALJ to make specific findings regarding that testimony. Rather,
we will . . . take that testimony to be established as true.” Varney v. Sec’y of Health
and Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988) (Varney II). As we held in
Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007), a claimant’s testimony
alone may establish disability and an entitlement to benefits. See also Moisa v.
Barnhart, 367 F.3d 882, 885-87 (9th Cir. 2004) (remanding for award of benefits
when a claimant’s symptom testimony was credited as true). In Lingenfelter, we
remanded to award benefits when the claimant testified that he needed to lie down
throughout the day due to his impairment, and the VE testified that such a
limitation would prevent sustained work. 504 F.3d at 1033, 1041. Here, Rawa
testified that, due to pain and muscle weakness, she needed to rest for seven hours
out of an eight hour work day and to lie down frequently. At Rawa’s hearing, the
VE explicitly found that such a limitation would preclude employment. Thus, if
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credited as true, Rawa’s testimony regarding her severe pain and debilitating
symptoms would require the ALJ to conclude that she was in fact disabled.
Finally, we exercise our discretion to grant benefits under the credit-as-true
rule because this case is not one in which “an evaluation of the record as a whole
creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 F.3d at
1105-06 (internal quotation marks omitted). The record in this case is not
“uncertain and ambiguous,” and there are no “outstanding issues that must be
resolved” with respect to Rawa’s symptom testimony. Cf. Treichler, 775 F.3d at
1106. Rather, a review of the record provides no evidence calling into doubt
Rawa’s credibility or honesty.
In light of the extensive medical record, the ALJ’s error of law, the VE’s
testimony at hearing, and the lack of any reason to doubt Rawa’s credibility, we
conclude that it would be contrary to both controlling case law and the purposes of
the Social Security Act to conduct further proceedings and to cause further
extended delay. We find this issue dispositive of the appeal, and therefore do not
address Rawa’s additional claim that the Appeals Council and district court erred
by rejecting the opinions of Dr. Aviles and Dr. Landsman. Because the evidence,
when it is given the effect required by law, demonstrates that Rawa is unable to
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seek and maintain employment, we REVERSE and REMAND for calculation and
award of appropriate benefits.
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