Craig Sakowitz v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2023
• Docket: 22-16578
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED DEC 20 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CRAIG J. SAKOWITZ, No. 22-16578

Plaintiff-Appellant, D.C. No. 3:20-cv-06157-AGT

v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee,

and

ANDREW M. SAUL, Commissioner of Social Security,

Defendant.

Appeal from the United States District Court for the Northern District of California Alex G. Tse, Magistrate Judge, Presiding

Argued and Submitted November 17, 2023 San Jose, California

Before: MURGUIA, Chief Judge, and PAEZ and FRIEDLAND, Circuit Judges.

Craig Sakowitz (“Sakowitz”) appeals the district court’s ruling granting in

part and denying in part the Commissioner of Social Security’s motion for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. summary judgment.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district

court’s order affirming a denial of Social Security benefits. Revels v. Berryhill,

874 F.3d 648, 653–54 (9th Cir. 2017) (citing Brown-Hunter v. Colvin, 806 F.3d

487, 492 (9th Cir. 2015)). We may reverse a denial of benefits when the decision

is “based on legal error or not supported by substantial evidence in the record.” Id.

at 654 (quoting Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir.

2003)). We reverse in part and affirm in part.

Among other impairments, Sakowitz suffers from fibromyalgia, a rheumatic,

chronic pain disease. It is now widely recognized that “the symptoms of

fibromyalgia can ‘wax and wane,’ and that a person may have ‘bad days and good

days.’” Id. at 657 (quoting SSR 12-2P, 2012 WL 3104869 (July 25, 2012)).

Because the disease can manifest inconsistently, evaluating this impairment

requires attention to its “unique characteristics.” See id. at 652; see also id. at 662

(noting that “misunderstanding of fibromyalgia” and failure to properly analyze

symptoms appears to be “a recurrent problem”).

The administrative law judge (“ALJ”) rejected Sakowitz’s testimony and the

opinions of Sakowitz’s treating physician, Dr. Bhat, and chiropractors, Drs.

Mehaffey and Robinson. The district court largely affirmed the ALJ’s decision,

but remanded for reconsideration of the opinion of an examining physician, Dr.

2 Warbritton. Sakowitz argues that the ALJ erred in discounting his testimony and

the opinions of Drs. Bhat, Mehaffey, and Robinson.

An ALJ may reject a claimant’s testimony about the severity of his

symptoms “only by offering specific, clear and convincing reasons for doing so.”

Id. at 655 (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)).

Inconsistencies between a claimant’s daily activities and claimed level of

impairment can be a legitimate factor in evaluating the claimant’s testimony, Orn

v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007), but “the mere fact that a plaintiff has

carried on certain daily activities . . . does not in any way detract from her

credibility as to her overall disability,” Revels, 874 F.3d at 667 (quoting Benecke v.

Barnhart, 379 F.3d 587, 594 (9th Cir. 2004)).

To discount the opinion of a treating physician, the ALJ must provide

“specific and legitimate reasons that are supported by substantial evidence.” Id. at

654 (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)).

To discount other medical opinions, such as those of chiropractors, the ALJ must

provide “reasons germane to each witness for doing so.” Id. at 655.

1. The ALJ erred in rejecting Sakowitz’s testimony and declaration based

on alleged inconsistencies with record evidence, including his daily activities and

occasional trips. The ALJ primarily relied on Sakowitz’s occasional trips,

“weekends with long driving,” his ability to walk his dog, his exercise schedule,

3 and his caretaking tasks to conclude that Sakowitz could return to his previous

work in IT. But it is not obvious that these tasks translate to typing, and Sakowitz

explained that typing specifically exacerbates his symptoms. The ALJ thus erred

by relying on these irrelevant activities to discount Sakowitz’s testimony regarding

his ability to type.

Nor was the extent of Sakowitz’s activities inconsistent with his testimony.

Sakowitz testified that he was often “pretty worn out” after performing caregiving

activities, and the record indicates that his ability to do these activities varied

because he often needed to rest. “One does not need to be utterly incapacitated in

order to be disabled.” Id. at 667 (quoting Benecke, 379 F.3d at 594).

In relying on alleged inconsistencies, the ALJ did not provide clear and

convincing reasons to discount Sakowitz’s testimony and declaration about his

symptoms and pain.

2. The ALJ also erred in discounting the opinions of Sakowitz’s treating

physician, Dr. Bhat, and his chiropractors, Drs. Mehaffey and Robinson, based on

alleged inconsistencies. The ALJ did not explain how Sakowitz’s activities were

inconsistent with these providers’ opinions, particularly given that they were aware

of his level of activity and consistently acknowledged the variance in his

symptoms.

First, the ALJ did not provide sufficiently specific and legitimate reasons for

4 rejecting Dr. Bhat’s opinion. The ALJ rejected Dr. Bhat’s opinion because it was

“vague” and inconsistent with Sakowitz’s reported daily activities and occasional

travel. The ALJ, however, did not explain how the opinion was inconsistent with

Sakowitz’s activities, of which Dr. Bhat was aware. And Dr. Bhat’s letter was not

vague; it described Sakowitz’s need to “stagger activity to preserve strength for

routine activities,” which are “challenging,” “result in debilitating depletion of his

energy,” and “cause[] an increase in his symptoms.” Medical evidence “must be

construed in light of fibromyalgia’s unique symptoms.” As with Sakowitz’s

testimony, the ALJ ignored crucial evidence: namely, that Dr. Bhat knew and

documented the extent to which Sakowitz’s activities were limited by his need to

rest and recover. The ALJ’s reasons for rejecting Dr. Bhat’s opinion were not

specific and legitimate. See id. at 654.

Similarly, the ALJ did not provide germane reasons for assigning no weight

to the opinions of Sakowitz’s treating chiropractors, Drs. Mehaffey and Robinson.

The ALJ relied on their opinions’ purported inconsistency with Sakowitz’s

activities. But Dr. Mehaffey consistently noted variances in Sakowitz’s pain and

symptoms. And Dr. Robinson documented that Sakowitz “struggles to complete

daily activities and routines,” “must spread out his activities,” and “rest and sleep

in between outings.” Given the nature of fibromyalgia and the chiropractors’

express acknowledgement that Sakowitz’s symptoms and pain varied, the alleged

5 inconsistencies were not germane reasons for rejecting their opinions. See id. at

655.

3. Because neither party challenges the district court’s decision to remand

for reconsideration of Dr. Warbritton’s opinion, we do not address this aspect of

the district court’s decision.

In sum, substantial evidence does not support the ALJ’s decision to discount

Sakowitz’s testimony and the opinions of his treating providers. It is appropriate

to remand for further administrative proceedings, rather than for an award of

benefits, so that the agency may properly reconsider the relevant evidence before

making a disability determination. See Taylor v. Comm’r of Soc. Sec. Admin., 659

F.3d 1228, 1235 (9th Cir. 2011). Accordingly, we reverse and remand for further

administrative proceedings consistent with this memorandum.

Appellant shall recover his costs on appeal.

AFFIRMED IN PART; REVERSED IN PART and REMANDED for

further administrative proceedings.