Massey v. Commissioner Social Security Administration

FILED
NOT FOR PUBLICATION OCT 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TROY MASSEY, No. 10-35004
Plaintiff - Appellant, DC No. 3:08 cv 0858 JO
v.
MEMORANDUM *
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Submitted October 8, 2010 **
Portland, Oregon
Before: TASHIMA, PAEZ, and CLIFTON, Circuit Judges.
Troy Massey appeals from the district court’s decision affirming the
Commissioner’s final denial of benefits under Titles II and XVI of the Social
Security Act. Because we conclude that the Commissioner erred in rejecting the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
testimony of Dr. Richard Kirkpatrick (“Dr. Richard”) and lay witness Dorothy
Massey, and that the ALJ posed an incomplete hypothetical to the vocational
expert (“VE”), we reverse and remand for further proceedings.
1. It is unclear whether Massey’s frequent emergency room visits and
erratic management of his Crohn’s disease are the result of a painkiller addiction or
of his lack of health insurance and financial limitations. We defer to the ALJ’s
interpretation of the evidence on this issue, see Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005), and the ALJ’s interpretation that Massey is engaged in drug-
seeking behavior is a clear and convincing reason for disregarding his testimony.
See Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001).
2. However, the ALJ did not provide specific and legitimate reasons
supported by substantial evidence for rejecting the opinion of treating physician
Dr. Richard. See id. It is irrelevant that Massey did not report all of the symptoms
noted by Dr. Richard at his emergency room visits because the only symptoms that
motivated his trips to the emergency room were vomiting, nausea and abdominal
pain. It was not unreasonable for Dr. Richard to include “bowel obstruction” and
“weight loss” in his list of Massey’s symptom, because Massey had suffered from
both in the past.
2
The opinion of Dr. Donald Kirkpatrick (“Dr. Donald”) is not necessarily
entitled to more weight simply because he is a specialist. See 20 C.F.R. §
404.1527(d) (setting forth a number of factors to be considered in weighing
multiple physician opinions, only one of which is area of specialty). Massey has
seen Dr. Donald less frequently than he has seen Dr. Richard, and he visits Dr.
Richard when he experiences symptom flare-ups. Dr. Donald’s 2005 statement
that Massey was doing well on sulfasalazine is undermined by the fact that Massey
went to the emergency room for his symptoms later that same day.
An ALJ may reject a treating physician’s testimony if it is based largely on
the subjective complaints of a non-credible claimant, Tommasetti v. Astrue, 533
F.3d 1035, 1041 (9th Cir. 2008). Dr. Richard’s assessment, however, is based on
objective medical evidence, including a prior diagnosis of Crohn’s disease, test
results from 2003 showing bowel obstruction (which Dr. Donald thought might
still be present even after Massey received his normal follow-through results in
September of 2004), and Massey’s numerous visits to the emergency room and to
Dr. Richard’s office during symptom flare-ups.
3. Finally, the reasons the ALJ provided for disregarding Dorothy
Massey’s testimony about her son’s symptoms are not supported by the record.
Her testimony is not internally inconsistent when interpreted in a reasonable
3
fashion in light of the remainder of the record. Massey’s symptoms vary widely in
severity from one day to the next, and his ability to engage in certain activities on
days when his symptoms are not severe does not contradict answers that indicate
more severe restrictions. Additionally, the ALJ may not reject lay testimony solely
because it is not supported by objective medical evidence. Bruce v. Astrue, 557
F.3d 1113, 1116 (9th Cir. 2009).1
4. Improperly rejected treating physician testimony is credited as true as
a matter of law. Widmark v. Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006).
Therefore, the ALJ’s hypothetical to the VE should take account of Dr. Richard’s
opinion. The hypothetical also should take account of Dorothy Massey’s
testimony, absent additional, legitimate reasons for rejecting it. Massey’s counsel
did present the limitations documented by the improperly rejected testimony to the
VE, but the VE’s responses to his questions were inaudible. So that the
Commissioner can obtain new, unambiguous VE testimony in response to a
complete hypothetical, we reverse and remand to the district court with directions
1
The Commissioner is correct that SSR 88-13, which is cited in Bruce,
has been superseded, but the policy interpretations contained in that ruling were
codified in 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3), and remain valid. See
SSR 95-5p at *1.
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that it reverse and remand to the Commissioner for further proceedings consistent
with this disposition.
REVERSED and REMANDED.
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