Sheryl Ellen Edwards v. Carolyn W. Colvin, Commissioner of Social Security Administration

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHERYL ELLEN EDWARDS,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN,*
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant - Appellee.
No. 12-17160
D.C. No. 5:11-cv-00320-LHK
MEMORANDUM**
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted February 6, 2015 ***
San Francisco, California
FILED
FEB 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* Carolyn W. Colvin, Acting Commissioner of Social Security, is
substituted for her predecessor, Michael J. Astrue, Commissioner of Social
Security, pursuant to Fed. R. App. P. 43(c)(2).
** This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
*** The panel unanimously concludes that this case is suitable for
decision without oral argument. Fed. R. App. 34(a)(2).

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Before: TALLMAN and RAWLINSON, Circuit Judges, and DEARIE, Senior
District Judge. ****
Sheryl Edwards (“Edwards”) appeals the district court’s order remanding her
claim for disability insurance benefits, pursuant to Title II of the Social Security
Act, for further administrative proceedings. The district court found that the
Administrative Law Judge (“ALJ”) had erred (1) by failing to consider Edwards’
non-exertional limitations and (2) by relying solely on the medical vocational
guidelines as evidence of the existence of significant numbers of jobs that Edwards
was capable of performing. Nonetheless, Edwards argues that the district court
erred when it upheld the part of the ALJ’s decision that gave “no significant
weight” to the opinions of three treating physicians regarding Edwards’ limitations,
and that the district court should have remanded the case for an immediate award
of benefits. We review the district court’s order de novo, Berry v. Astrue, 622 F.3d
1228, 1231 (9th Cir. 2010), and review the decision to remand for an abuse of
discretion, Harman v. Apfel, 211 F.3d 1172, 1173 (9th Cir. 2000). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
**** The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
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The ALJ did not err in giving “no significant weight” to the opinions of
Edwards’ treating physicians. Controlling weight is given to a treating physician’s
opinion when it “is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence in
[the] case record.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (internal
quotations omitted) (alteration in original); see also 20 C.F.R. § 404.1527(c)(2).
Where, as here, the treating doctors’ opinions are contradicted by other doctors’
opinions, the ALJ must state “specific and legitimate reasons that are supported by
substantial evidence” in the record for rejecting a treating physician’s opinion.
Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
The ALJ provided three “specific and legitimate reasons [] supported by
substantial evidence” for discrediting Edwards’ treating physicians’ opinions as to
Edwards’ multiple chemical sensitivity and limitations. Id. First, the ALJ
correctly found that Drs. Vincent A. Marinkovich, Melvin Friedman, and Peter
Madill based their opinions almost entirely on Edwards’ self-reporting. Thus, the
ALJ found these three opinions not fully credible—a finding that Edwards does not
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challenge on appeal.1 See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008) (“An ALJ may reject a treating physician’s opinion if it is based to a large
extent on a claimant’s self-reports that have been properly discounted as
incredible.” (quotation marks and citation omitted)). Second, the ALJ found that
the treating physicians’ opinions were not supported by other evidence in the
record such as clinical signs or diagnostic findings. See Batson v. Comm’r of Soc.
Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (affirming ALJ’s rejection of
contradicted medical opinion because it was conclusory, in checklist form, and not
supported by objective evidence). Third, the ALJ correctly pointed out
inconsistencies between two of the treating physicians’ opinions and their notes
relating to Edwards’ work history. See Valentine v. Comm’r Soc. Sec. Admin., 574
F.3d 685, 692-93 (9th Cir. 2009) (ALJ validly “identified a contradiction” in the
treating physician’s opinion because although the doctor opined that the claimant
was unemployable he acknowledged that the claimant continued to work full-
time).
1 Edwards argues in passing that the ALJ improperly relied on his first-
hand observation of Edwards in the hearing room in finding her not credible. An
ALJ’s “personal observations may be used” where, as here, they were part of “the
overall evaluation of the credibility of the individual’s statements.” Orn v. Astrue,
495 F.3d 625, 639-40 (9th Cir. 2007) (quoting Social Security Ruling 96-7p at 8,
available at 61 Fed. Reg. at 34,488). There was no error.
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Edwards argues that, in reaching these conclusions, the ALJ improperly
relied on evidence from non-treating doctors who examined Edwards in 2009 after
her date last insured. But as we have previously stated, “[i]t is obvious that
medical reports are inevitably rendered retrospectively and should not be
disregarded solely on that basis.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir.
1988). Since the evaluations of Drs. Clark E. Gable and Steven Gerber relied on
medical evidence from the insured period, the ALJ did not err in finding their
opinions “relevant to an evaluation of the pre-expiration condition.” Id.
Remand for further administrative proceedings is appropriate where there are
outstanding issues that must be resolved before a disability determination can be
made, and where it is not clear from the record that the ALJ would be required to
find the claimant disabled if all the evidence were properly evaluated. See Vasquez
v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009).
Here, the district court did not abuse its discretion by remanding for further
proceedings because there are outstanding issues that the ALJ must consider,
including (1) incorporating Edwards’ non-exertional limitations in her residual
functional capacity, and (2) posing an accurate hypothetical to the vocational
expert. The common approach in this circuit—and the sensible one here taken by
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the district court—is to remand for such fact finding. See, e.g., Harman, 211 F.3d
at 1180 (“In cases where the testimony of the vocational expert has failed to
address a claimant’s limitations . . . we consistently have remanded for further
proceedings rather than payment of benefits.”); Hill v. Astrue, 698 F.3d 1153, 1162
(9th Cir. 2012) (“Because the overall record shows [] additional assumptions
should have been incorporated into the ALJ’s hypothetical, remand is
appropriate.”).
AFFIRMED.
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