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Trevizo v. Berryhill

United States Court of Appeals, Ninth Circuit

July 10, 2017

Vivian R. Trevizo, Plaintiff-Appellant,
Nancy A. Berryhill, Acting Commissioner Social Security, Defendant-Appellee.

          Argued and Submitted May 16, 2017 San Francisco, California

         Appeal from the United States District Court for the District of Arizona, D.C. No. 2:14-cv-00616-SRB Susan R. Bolton, District Judge, Presiding

          Mark Caldwell (argued), Mark Caldwell P.C., Phoenix, Arizona, for Plaintiff-Appellant.

          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 Defendant-Appellee.

          Before: Sidney R. Thomas, Chief Judge, Kim McLane Wardlaw, Circuit Judge, and Brian M. Morris, [*] District Judge.

         SUMMARY [**]

         Social Security

         The 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.

         The 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 evidence.

         The 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.

         The 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 warranted.


          WARDLAW, Circuit Judge.

         Vivian 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.


         A. Procedural history.

         Trevizo 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.

         B. Personal and medical history.

         The 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.

         1. Treating providers.

         Dr. 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.

         Dr. 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.

         Following 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.

         After 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.

         On 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."

         2. Examining physician.

         Dr. 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."

         There 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."

         In 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 ...

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