Katrina McLamb v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 2, 2018
• Docket: 17-35481
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 2 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KATRINA MCLAMB, No. 17-35481

Plaintiff-Appellant, D.C. No. 2:16-cv-00563-PK

v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Paul J. Papak II, Magistrate Judge, Presiding

Submitted June 28, 2018**

Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges

Katrina McLamb appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of McLamb’s application for disability

insurance benefits and supplemental security income under Titles II and XVI of the

Social Security Act. We review de novo, Garrison v. Colvin, 759 F.3d 995, 1010

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (9th Cir. 2014), and we affirm for the reasons given by United States Magistrate

Judge Paul J. Papak II in his Opinion and Order dated April 11, 2017. We attach

Judge Papak’s thorough and persuasive “Analysis” as an Addendum to our

disposition.

AFFIRMED.

2 17-35481 ADDENDUM

3 17-35481 FILED McLamb v. Berryhill, 17-35481 JUL 02 2018 LEAVY, Circuit Judge, dissenting. MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

The ALJ found that McLamb has a severe impairment of scoliosis, cervical

degenerative disc disease, lumbar degenerative disc disease, and sciatica of the left

leg. McLamb testified that she “worked through the pain” of her condition until

August 2012, when her pain increased to the point that she could no longer stand

for more than five minutes, or sit longer than five minutes without shifting

positions due to pain in her back and left leg. The ALJ found that McLamb is

unable to perform her past relevant work as a waitress and bartender. He further

found that McLamb’s determinable impairments could reasonably be expected to

cause some of her alleged symptoms; however, McLamb’s statements concerning

the intensity, persistence, and limiting effects of her symptoms “are not entirely

credible for the reasons explained in this decision.” (ER 16). There is no finding

of malingering.

With those findings, the ALJ may reject McLamb’s testimony about the

severity of her symptoms only by providing specific, clear, and convincing reasons

for doing so. See Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). The

Brown-Hunter case also tells us, in no uncertain terms, that to ensure that our

review of the ALJ’s credibility determination is meaningful, and that a claimant’s

testimony is not rejected arbitrarily, we require the ALJ to specify which testimony is found to be not credible, along with clear and convincing reasons supported by

record evidence that supports the credibility determination. Id. (concluding that

the ALJ erred by summarizing the evidence that supported the RFC determination

without specifically identifying the reasons for rejecting claimant’s testimony); see

also Treichler v. Comm’r Soc. Sec. Admin. 774 F.3d 1090, 1098 (9th Cir. 2014)

(“We leave to the ALJ to determine credibility, resolve conflicts in the testimony,

and resolve ambiguities in the record.”).

The ALJ summarized the medical evidence which shows a moderate, but not

significantly worsening, scoliosis condition. The ALJ noted McLamb’s long work

history despite her scoliosis, and McLamb’s use of conservative methods of pain

management. The ALJ was required to identify which evidence was inconsistent

with McLamb’s testimony regarding her progressively worsening pain symptoms.

In other words, the ALJ cannot discount McLamb’s testimony simply by saying

“for the reasons explained in this decision” without pointing to the evidence that

specifically undermined her testimony. See Brown-Hunter, 806 F.3d at 493.

The majority appends the district court’s analysis which, like the ALJ

decision, cites the record evidence that could possibly support a credibility

determination. But general findings, such as “for the reasons stated in this

opinion,” are insufficient; rather, “the ALJ must identify what testimony is not

2 credible and what evidence undermines the claimant’s complaints.” Id., citing

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citation and internal

quotation marks omitted).

The ALJ also erred by failing to provide germane reasons to reject the lay

testimony of McLamb’s mother, and this is not harmless error because the ALJ

failed to provide adequate reasoning to reject McLamb’s testimony. See Molina v.

Astrue, 674 F.3d 1104, 1114-17 (9th Cir. 2012).

Because the ALJ failed to identify specifically, and in the first instance,

which evidence was inconsistent with McLamb’s testimony, I would reverse and

remand with instructions for further agency proceedings.