Vivian R. Trevizo, Plaintiff-Appellant,
Nancy A. Berryhill, Acting Commissioner Social Security, Defendant-Appellee.
and Submitted May 16, 2017 San Francisco, California
from the United States District Court for the District of
Arizona, D.C. No. 2:14-cv-00616-SRB Susan R. Bolton, District
Caldwell (argued), Mark Caldwell P.C., Phoenix, Arizona, for
Jeffrey E. Staples (argued) and Lisa Goldoftas, Assistant
Regional Counsel; David Morado, Regional Chief Counsel,
Seattle Region X; Office of the General Counsel, Social
Security Administration, Seattle, Washington; for
Before: Sidney R. Thomas, Chief Judge, Kim McLane Wardlaw,
Circuit Judge, and Brian M. Morris, [*] District Judge.
panel reversed the district court's order affirming the
denial of disability benefits by the Commissioner of the
Social Security Administration, and remanded with
instructions to remand to the administrative law judge
("ALJ") for the calculation and award of benefits.
panel held that the ALJ did not follow the appropriate
methodology for weighting a treating physician's opinion,
and there was no legitimate stated reason for rejecting the
treating physician's opinion. The panel concluded that
the ALJ should have credited the treating physician's
opinion and found that claimant was disabled. The panel
further held that the district court erred by developing its
own reasons to discount the treating physician's opinion,
rather than reviewing the ALJ's reasons for substantial
panel held that the ALJ erred in discounting the
claimant's testimony regarding her subjective symptoms.
The panel held that the vast majority of the ALJ's bases
for rejecting claimant's testimony were legally or
factually erroneous; and substantial evidence did not support
a finding that claimant's symptoms were not as severe as
she testified, particularly in light of the extensive medical
record objectively verifying her claims.
panel held that each of the "credit-as-true"
factors outlined in Garrison v. Colvin, 759 F.3d
995, 1020 (9th Cir. 2014), was satisfied, and therefore
remand for the calculation and award of benefits was
WARDLAW, Circuit Judge.
Trevizo ("Trevizo"), a 65-year-old woman last
employed as a security guard nine years ago, in 2008, appeals
the district court's order affirming the denial of
disability benefits by the Commissioner of the Social
Security Administration. Trevizo argues that the
administrative law judge ("ALJ") improperly
rejected the medical opinion of her treating physician and
erroneously discounted her symptom testimony. We reverse the
judgment below with instructions to remand to the ALJ for the
calculation and award of benefits.
applied for disability benefits on April 8, 2010, claiming a
disability onset date of August 15, 2008. On June 24, 2010,
Trevizo's claim was denied. On reconsideration on October
29, 2010, however, the agency found that Trevizo met
"the medical requirements for disability benefits"
as of September 16, 2010. Trevizo requested a hearing before
an ALJ to challenge the onset date in the partially favorable
decision. At the hearing, held on August 23, 2012, Trevizo
presented extensive medical records to support her claimed
impairments and testified at length about how those
impairments affect her daily activities and limit her ability
to perform work. The ALJ found that Trevizo was not disabled
and denied the claim in its entirety on September 27, 2012.
On January 28, 2014, the Appeals Council denied Trevizo's
agency appeal, and Trevizo sought judicial review of the
agency's decision in the district court for the District
of Arizona. On May 13, 2015, the district court affirmed the
ALJ's decision. Trevizo timely appealed.
Personal and medical history.
administrative record and the evidence presented at the
hearing comprehensively address Trevizo's physical health
and impairments. Trevizo suffers from uncontrolled Type II
diabetes, psoriasis, hypertension, high cholesterol, chronic
lumbago, invertebral disc degeneration, psoriatic arthritis,
and mild scoliosis. Since 2008 she has also experienced
migraines, Achilles tendinitis, heel and Achilles bone spurs,
vaginitis, urinary tract infections, pelvic inflammatory
disease, fatigue, weakness, and several bouts of
conjunctivitis. Her past surgeries include carpal tunnel
surgery on both wrists, a hysterectomy, gallbladder removal,
an appendectomy, partial intestinal surgery, and a
colonoscopy in which a large polyp was removed. In March
2012, Trevizo was admitted to the emergency department
complaining of chest pain, and she was released upon
treatment. Throughout this period Trevizo has been severely
or morbidly obese.
Ravi Galhotra is Trevizo's primary care physician. The
record reflects that Trevizo had at least 22 medical visits
with Dr. Galhotra between January 2008 and August 2012.
Trevizo has consulted Dr. Galhotra extensively for her
psoriasis and accompanying back and joint pain, as well as
for treatment of cold and sinus symptoms, ear infections,
conjunctivitis, migraines and headaches, weakness, fatigue,
yeast infections, urinary tract infections, chest pain, and
other ailments. The first mention of a skin condition in
Trevizo's medical records was on January 2, 2009, when
she visited Dr. Galhotra complaining of a rash. The doctor
reported "[m]ultiple skin abscesses on various parts of
her body" in his treatment notes. On January 20, 2009,
Dr. Galhotra again evaluated the rash, noting that Trevizo
was not compliant with her diabetes medication because she
feared it was causing the rash and related itching. By
January 29, 2009, the treatment notes reflect a "[r]ash
throughout her body particularly on the scalp" and
contain the first explicit mention of psoriasis. Trevizo
visited Dr. Galhotra for flare-ups of her psoriasis over the
next few years, while also consulting with dermatologists.
During this time, Trevizo visited Dr. Galhotra regularly for
pain as well. Dr. Galhotra's notes reflect that Trevizo
complained of lower back pain as early as May 1, 2008, and
that at most of her subsequent appointments she had lower
back pain and pain in her other joints, particularly her
elbows and ankles. On November 6, 2009, Dr. Galhotra reported
positive straight-leg raising tests and the inability to
stand on her toes and heels. The notes reflect that Dr.
Galhotra prescribed Vicodin and Tramadol hydrochloride for
Trevizo's disc degeneration, and consistently counseled
her about weight loss, exercise, and diet.
Galhotra completed a check-the-box medical assessment of
Trevizo's ability to do work-related physical activities.
He wrote that she suffered from diabetes, disc degeneration,
hypertension, and psoriasis. Dr. Galhotra also wrote that
Trevizo could both occasionally and frequently lift 20
pounds; could stand and/or walk for less than two hours in an
eight-hour workday, which he noted was "b'cause
[sic] of back pain"; and could sit with normal breaks
for up to three hours per day. He further noted that her
symptoms would require her to alternate sitting and standing
four or five times per eight-hour shift. He noted that she
could never kneel or crawl and could occasionally climb,
stoop, balance, or crouch. Dr. Galhotra concluded that,
because of her carpal tunnel surgery, Trevizo could only
occasionally use her hands for simple grasping, gross and
fine manipulation, and reaching. He cautioned that Trevizo
should limit exposure to heights, moving machinery,
temperature extremes, and chemicals. He did not provide
additional comments to explain his assessment.
Trevizo's appointment with Dr. Galhotra during which he
first found "skin abscesses, " Trevizo consulted
Dr. Lisa Hynes, a dermatologist. Dr. Hynes tried several
treatments with Trevizo, none of which was successful. At the
first appointment on February 3, 2009, Trevizo stated that
she had experienced a rash for about one month (a statement
consistent with her January 2, 2009 appointment with Dr.
Galhotra) and went to the emergency department when the rash
appeared. On February 9, 2009, Dr. Hynes reported that the
psoriasis had spread to 25 percent of Trevizo's body
surface area ("BSA"). Dr. Hynes started Trevizo on
"systemic" treatment "[d]ue to extent of
disease." At a February 23, 2009 appointment, the notes
indicate "no improvement" in the psoriasis, which
"continue[d] to spread." March 23, 2009 was
Trevizo's final appointment with Dr. Hynes; she reported
some improvement but "still significant breaking
out" and nausea related to the medication. Dr. Hynes
noted that 35 percent of Trevizo's BSA was covered with
psoriasis and started Trevizo on Humira injections.
ending treatment with Dr. Hynes, Trevizo turned to Dr.
Lindsay Ackerman, who is her primary treating dermatologist
and who has been responsible for most of the care related to
her psoriasis. Trevizo had at least 22 medical visits with
Dr. Ackerman between February 2010 and June 2012. Trevizo
first visited Dr. Ackerman on February 23, 2010. Dr. Ackerman
reported that Trevizo had developed psoriasis "one year
ago" and that to treat it Trevizo had taken
cyclosporine, which she discontinued for fear of exacerbating
her kidney disease, and Humira, which she took for six months
and discontinued upon losing her insurance. Dr.
Ackerman's treatment notes reveal that Trevizo's BSA
coverage ranged from 6 percent in February 2010 to a high of
nearly 90 percent following a severe flare-up in July 2010.
Dr. Ackerman tried numerous treatment options with
Trevizo-including topical treatments, cyclosporine, Humira,
Remicade, Enbrel, methotrexate, and Stelara-most of which
resulted in some initial improvement followed by an ultimate
failure of treatment. Dr. Ackerman eventually wrote that
Trevizo was "notable" for having failed so many
different treatments. Dr. Ackerman noted that Trevizo
suffered from regular flare-ups, joint pain, itchiness (and
related difficulty sleeping), foul smells from the plaques
(requiring showering three or four times daily), and fatigue.
April 2, 2012, Dr. Ackerman wrote that Trevizo had been
hospitalized with severe elbow pain and that the
hospitalization "revealed . . . arthritis that was
associated with her psoriasis." Trevizo was prescribed
oxycodone, which she did not take "as she was fearful of
becoming narcotic addicted. Instead she took hydroxyzine
which she says kept her pain under control."
Charles House is a psychologist who evaluated Trevizo for the
agency on September 16, 2010. He observed that she
"presented as being an obese woman whose energy level
was low" and that she "tended to sit with her head
resting on her hand for much of the time." He described
her social and language skills as "not very well
developed" and said she was "not very aware and was
not very attentive." He described her as appearing to
have "borderline intellectual functioning." During
questioning by Dr. House, Trevizo did not respond when asked
who was president during the Civil War; did not understand
the question when asked what the proverb "strike while
the iron is hot" meant; incorrectly added four plus
nine; did not understand the question when asked to count
backwards from 70 by sevens; and could not spell the word
"world" backwards. Dr. House noted that he skipped
a task "as [he] was unable to get this woman to attend
to and follow directions." Trevizo told Dr. House that
"her main problem was that her feet hurt" because
of her psoriasis and that her diabetes also made her
"tired and moody."
was uncertainty about Trevizo's educational background
during her evaluation with Dr. House. Trevizo told Dr. House
she was placed in a special education class in high school
without her mother's knowledge; the psychologist wrote,
"This seems unlikely as the parents would have had to
have given consent to the school for her to be evaluated, and
would then have to give approval for the child to take part
in special ed." Dr. House added, "I tried to
clarify the matter, but had difficulty doing so. . . .
Perhaps she was assigned to some sort of remedial class [for
one] year." Dr. House also reported that Trevizo's
responses about her reason for leaving her job were
"confusing." "She seemed to indicate that she
left that job because she was having problems with psoriasis.
. . . I initially heard her to say, 'They wanted to
remove me from this job.' She then seemed to indicate
that she was the one that wanted a different job because she
was allegedly being harassed by truck drivers. She seemed to
indicate that she quit this job."
summary, Dr. House wrote that Trevizo "displayed
problems with attention and awareness, " "seem[ed]
to have some problems with insight, " and "lacked
normal social skills." He said her "presentation
was suggestive of ...