VICKY FRYER V. KILOLO KIJAKAZI

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 27, 2022
• Docket: 21-36004
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VICKY L. FRYER, No. 21-36004

Plaintiff-Appellant, D.C. No. 3:20-cv-05394-TLF

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

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Theresa Lauren Fricke, Magistrate Judge, Presiding

Argued and Submitted October 18, 2022 Portland, Oregon

Before: PAEZ and BADE, Circuit Judges, and R. COLLINS,** District Judge. Dissent by Judge BADE.

Vicky Fryer (“Fryer”) appeals the district court’s judgment affirming the

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

insurance benefits under Title II of the Social Security Act. On appeal, Fryer

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. argues that the ALJ improperly evaluated the medical opinion evidence and her

testimony regarding her pain symptoms. We have jurisdiction under 28 U.S.C. §

1291 and review de novo. Ford v. Saul, 950 F.3d 1141, 1153-54 (9th Cir. 2020)

(citations omitted). We affirm in part, reverse in part, and vacate and remand for

further proceedings.

1. Medical Opinion Evidence: Because Fryer’s claim was filed on September

14, 2017, it is subject to the Social Security Administration’s revised regulations

for the evaluation of medical opinion evidence. See Revisions to Rules Regarding

the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017)

(codified at 20 C.F.R. pts. 404 & 416). Under the revised rules, “‘[t]he most

important factors’ that the agency considers when evaluating the persuasiveness of

medical opinions are ‘supportability’ and ‘consistency.’” Woods v. Kijakazi, 32

F.4th 785, 791 (9th Cir. 2022) (quoting 20 C.F.R. § 404.1520c(a)). “[A]n ALJ's

decision, including the decision to discredit any medical opinion, must simply be

supported by substantial evidence.” Id. at 787.

The ALJ’s decision to partially discredit the opinion of Fryer’s examining

physician, Dr. Derek Leinenbach, is supported by substantial evidence. Dr.

Leinenbach’s opinion that Fryer had an overhead reaching limitation on her left

side was not supported by the “objective medical evidence,” as Fryer’s physical

examination showed that she had a normal range of motion in her left shoulder.

2 Woods, 32 F.4th at 791-92 (citing § 404.1520c(1)). Nor was Dr. Leinenbach’s

opinion consistent with other evidence from Fryer’s claim. Id. at 792 (citing §

404.1520c(c)(2)). Significantly, Fryer failed to report shoulder pain to her

healthcare providers or seek additional treatment for such pain—in contrast, she

frequently reported and sought treatment for other kinds of body pain she

experienced. The ALJ did not err in discrediting Dr. Litman’s opinion on these

grounds. See § 404.1520c(b)(2) (stating that ALJs must “explain how [they]

considered the supportability and consistency factors,” and “may, but are not

required to,” explain how they considered other factors).

The ALJ also had substantial evidence to fully discredit the opinion of

Fryer’s examining psychologist, Dr. Jack Litman. Dr. Litman concluded that he

“tend[ed] to believe” Fryer’s statement that she could no longer work because she

appeared “fairly physically deconditioned,” and she was “wary and pain avoidant”

of exposure to physical reconditioning. The objective findings from Dr. Litman’s

examination do not support his opinion that Fryer could not work. Indeed, Dr.

Litman found that Fryer’s cognitive ability was reasonably good, and he did not

suggest that her mental health conditions impeded her work abilities. Dr. Litman’s

conclusory assertion that Fryer was “physically deconditioned” was inconsistent

with the relatively benign findings from her physical examination. The ALJ did

not err in discrediting Dr. Litman’s opinion on these grounds.

3 2. Fryer’s Symptom Testimony: The ALJ’s reasons for discrediting Fryer’s

testimony about her pain symptoms and related limitations were not supported by

substantial evidence. The ALJ found that Fryer had produced evidence of

impairments that could reasonably be expected to produce her symptoms. The

ALJ did not find that Fryer was malingering; therefore he could “reject [her]

testimony about the severity of her symptoms only by offering specific, clear and

convincing reasons for doing so.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th

Cir. 2008) (citing Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84) (internal

citations omitted)).

Fryer testified that, due to her chronic pain, she was unable to walk for more

than a few blocks, sit for long periods of time, and perform routine household

tasks, such as lifting a gallon of milk with one hand. In rejecting this testimony,

the ALJ explained that Fryer’s testimony was inconsistent with “[t]he observations

of mostly normal strength and ambulation, the limited observations of pain

behavior, and the routine and conservative course of treatment.” The ALJ also

found Fryer’s alleged symptoms and limitations inconsistent with her reported

daily activities. Several of these findings were not supported by substantial

evidence.

First, the ALJ erred by concluding that there were “limited observations of

pain behavior” in Fryer’s medical records. From 2016 to 2018, multiple healthcare

4 providers observed that Fryer was in pain, had difficulty walking and exhibited a

limited range of motion. This basis for the ALJ’s adverse credibility finding is not

supported by substantial evidence.

Second, the ALJ erred in discrediting Fryer’s testimony based on her routine

and conservative treatment for “fibromyalgia and other medical conditions.” Fryer

tried a variety of pain medications to treat her fibromyalgia, including muscle

relaxers, narcotics, and anti-inflammatories, but she often experienced negative

side effects and could not continue treatment. She also underwent massages,

chiropractic care, acupuncture, physical therapy, and TENs treatment. There is no

indication that the treatments she took relieved her pain. Cf. Tommasetti, 533 F.3d

at 1040 (noting that the claimant had “responded favorably” to conservative

treatments). Notably, the ALJ did not identify or explain other fibromyalgia

treatments that Fryer could have tried. In previous cases, we have indicated that

epidural steroid injections might serve as a nonconservative treatment for

fibromyalgia. See Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017). But

Fryer’s medical records indicate that she was not a candidate for injections because

her hemoglobin levels were not sufficiently controlled. Considering the record as a

whole, Fryer’s purportedly “minimal treatment regime is not a proper basis for

finding [her] non-credible.” Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d

1155, 1162 (9th Cir. 2008) (explaining that a conservative treatment for pain “is

5 not a proper basis for rejecting the claimant's credibility where the claimant has a

good reason for not seeking more aggressive treatment”).

Third, the ALJ erred in finding Fryer’s symptom testimony inconsistent with

her daily activities. The limited activities Fryer reported doing, including grocery

shopping with her husband, cooking simple meals, watching television, and

spending time with family, are all consistent with the pain symptoms she

described. The ALJ offers no explanation why a person who experiences chronic

pain and limited mobility would be unable to engage in errands and light

housework. To the contrary, “[w]e have repeatedly warned that ALJs must be

especially cautious in 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 little more than merely resting in bed all day.” Garrison v. Colvin, 759

F.3d 995, 1016 (9th Cir. 2014). The ALJ also overlooked Fryer’s statements that

she received help from her husband or other family members when engaging in

any such daily activities.

As to Fryer’s ability to perform housework, the ALJ found Fryer’s testimony

that her husband performed most housework “inconsistent” with the fact that her

6 husband “is a disabled veteran suffering from physical and mental disability.”1

This inference is unreasonable. Although an ALJ is “entitled to draw inferences

logically flowing from the evidence,” the record contains no information about the

nature of Fryer’s husband’s disability. Sample v. Schweiker, 694 F.2d 639, 642

(9th Cir. 1982). There is insufficient record evidence to support the ALJ’s

findings about Fryer’s husband’s capabilities. This basis for the adverse credibility

finding is not supported by substantial evidence.

To be sure, the ALJ’s analysis of Fryer’s credibility was not entirely

erroneous. The ALJ properly rejected Fryer’s testimony about why she stopped

working in 2017 based on “internal contradictions in her testimony” and

“inconsistencies . . . between [her] testimony and . . . [her] work record.” Light v.

Soc. Sec. Admin., 119 F.3d 789, 792-93 (9th Cir. 1997), as amended on reh'g (Sept.

17, 1997) (citations omitted). The ALJ also correctly pointed out that Fryer’s

symptom testimony was not entirely supported by the objective findings from her

physical examinations.

1 Fryer also argued that the ALJ erred by refusing to consider lay witness statements from her husband. It is an open question whether ALJs are still required to consider lay witness evidence under the revised regulations, although it is clear they are no longer required to articulate it in their decisions. See Johnson v. Kijakazi, No. 21-35755, 2022 WL 3998572, at *2 (9th Cir. Sept. 1, 2022) (raising the same issue about the requirements for evaluating lay evidence under the revised rules, and declining to address it). We need not address the issue in this case. It is clear the ALJ evaluated Fryer’s husband’s function reports, as he references the reports elsewhere in the decision.

7 But we must reverse an ALJ’s decision for error unless “it is clear from the

record that the ALJ’s error was inconsequential to the ultimate nondisability

determination.” Tommasetti, 533 F.3d at 1038 (internal quotation marks and

citations omitted). We “cannot consider an error harmless unless [we] can

confidently conclude that no reasonable ALJ, when fully crediting the testimony,

could have reached a different disability determination.” Marsh v. Colvin, 792

F.3d 1170, 1173 (9th Cir. 2015) (cleaned up).

We cannot confidently conclude that the ALJ’s multiple, material errors with

respect to discrediting Fryer’s testimony were harmless. Unlike other cases in

which we have deemed a minor error in the ALJ’s reasoning harmless, here, most

of the reasons the ALJ gave for finding Fryer non-credible were erroneous. Cf.

Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)

(holding that the ALJ made one erroneous assumption about the claimant’s posture

while watching television and it was harmless). These errors “negate the validity

of the ALJ’s ultimate conclusion.” Id. at 1197. We are mindful that this case

involves pain-related ailments. As we have recognized, there is typically no

objective medical support for symptoms involving excess pain, and the claimant’s

testimony is particularly probative. See Cotton v. Bowen, 799 F.2d 1403, 1407

(9th Cir. 1986) (“Excess pain is, by definition, pain that is unsupported by

objective medical findings.”); see also Gonzalez v. Sullivan, 914 F.2d 1197, 1201

8 (9th Cir. 1990) (“[I]t is the very nature of excess pain to be out of proportion to the

medical evidence.”). Had the ALJ properly credited Fryer’s testimony, the ALJ

might well have found that she is disabled.

We reverse and remand for reconsideration of Fryer’s symptom testimony

consistent with this disposition. We affirm the ALJ’s decision with respect to the

medical opinion evidence. The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, AND REMANDED for further

proceedings.

9 FILED No. 21-36004, Fryer v. Kijakazi DEC 27 2022

BADE, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

The substantial evidence threshold “is not high.” Biestek v. Berryhill, 139 S.

Ct. 1148, 1154 (2019). “It means—and means only—‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Because the record

contains evidence that “a reasonable mind might accept as adequate to support” the

ALJ’s finding that Fryer has the residual functional capacity to perform light work,

I respectfully dissent.

I agree with the majority that the ALJ’s decision to partially discredit

Dr. Leinenbach’s opinion and fully discredit Dr. Litman’s opinion is supported by

substantial evidence. I disagree, however, with the majority’s conclusion that the

ALJ did not state “clear and convincing reasons” for discrediting Fryer’s testimony

about the extent of her symptoms. See Tommasetti v. Astrue, 533 F.3d 1035, 1039

(9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283–84 (9th Cir.

1996)).

In a single sentence, the majority acknowledges that the ALJ correctly

recognized that Fryer’s symptom testimony “was not entirely supported” by the

“objective findings from her physical examinations.” Those “objective findings”

include the opinions of three medical professionals, all of whom concluded Fryer

1 could work at the light exertional level. Two medical consultants, Dr. Ulleland

and Dr. Irwin, provided physical assessments of Fryer, and both determined that

she could work at the light exertional level. And Fryer herself emphasizes the

opinion of Dr. Leinenbach because his diagnosis was consistent with Fryer’s

complaints: he found that she had diabetes, fibromyalgia, lumbago with left

sciatica, and other complaints. Even so, Dr. Leinenbach still concluded that Fryer

could stand or walk for six hours, had no sitting limitations, and could lift ten

pounds frequently and twenty pounds occasionally—all of which was inconsistent

with the extent of Fryer’s alleged limitations. See Smolen, 80 F.3d at 1284 (stating

that the ALJ must consider physicians’ observations regarding functional

restrictions caused by the claimant’s symptoms).

Additionally, the ALJ found that Fryer’s testimony about the reason she

stopped working was internally inconsistent and inconsistent with the record

evidence. Fryer asserted that her “medical conditions would have prevented her

from working in July 2017,” and that she had a “history of back pain, diabetes, and

fibromyalgia” before she stopped working, but the record, in contrast, revealed that

she “did not show reports of significant difficulty engaging in work activities

before she stopped working” or “that her physical symptoms worsened around the

time she stopped working.” Fryer also indicated that she stopped working because

the program that administered her position ran out of funding. Thus, the ALJ

2 properly concluded that this evidence suggested “that some of [Fryer’s] statements

regarding her alleged disability are not entirely reliable.” See Light v. Soc. Sec.

Admin., 119 F.3d 789, 792–93 (9th Cir. 1997), as amended on reh’g (Sept. 17,

1997) (ALJ can weigh a claimant’s credibility by considering inconsistencies in

testimony or inconsistencies between testimony and work record).

The majority correctly notes that the ALJ made errors along the way;

however, I cannot agree with the majority’s conclusion that the ALJ erred by

discounting Fryer’s symptom testimony based on her conservative course of

treatment. This court does not make arguments for parties, Johnson v. City of

Grants Pass, 50 F.4th 787, 806 (9th Cir. 2022), but that is what the majority does

here. See also United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)

(quotation omitted) (explaining that the court is bound by the principle of party

presentation). The assertion that injections were not an appropriate fit for treating

Fryer’s fibromyalgia is the majority’s own argument, not one advanced by Fryer to

this court or the district court. But even apart from Fryer’s fibromyalgia, the ALJ

noted that Fryer received routine and conservative treatment for her other

conditions: Fryer never acted on her doctor’s referrals to see a diabetes nurse or

obtain an evaluation at a spinal center, and her treatment providers did not

recommend surgery or more aggressive treatment for her spinal disorder. The

ALJ’s conclusion that a “routine and conservative course of treatment” was

3 inconsistent with Fryer’s allegations “of disabling symptoms and limitations” was

supported by substantial evidence. Tommasetti, 533 F.3d at 1039–40 (permissible

for ALJ to infer that claimant’s pain “was not as all-disabling as he reported in

light of the fact that he did not seek an aggressive treatment program and did not

seek an alternative or more-tailored treatment program after he stopped taking an

effective medication due to mild side effects”).

The ALJ’s errors do not warrant reversal so long as they do not “negate the

validity of the ALJ’s ultimate [credibility] conclusion” and substantial evidence

remains to support the credibility determination. Carmickle v. Comm’r, Soc. Sec.

Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (alteration in original) (quoting

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)).

Because the ALJ’s remaining reasons for discounting Fryer’s symptom testimony

satisfy the substantial evidence standard, I would affirm.