Rosina M. Haagenson v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSINA M. HAAGENSON,
Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant-Appellee.
No. 14-35175
D.C. No. 4:13 cv-0004 BMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted July 5, 2016**
Seattle, Washington
Before: KLEINFELD, TASHIMA, and M. SMITH, Circuit Judges.
Rosina Haagenson appeals the district court’s order affirming the
administrative law judge’s (“ALJ”) denial of benefits. We have jurisdiction under
FILED
JUL 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).

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28 U.S.C. § 1291, and we reverse and remand to the district court with instructions
to remand to the ALJ for the calculation and award of benefits.1
1. The ALJ failed to provide “‘specific, clear and convincing reasons
for’ rejecting the claimant’s testimony regarding the severity of the claimant’s
symptoms.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th
Cir. 2014) (citation omitted). None of the ALJ’s reasons for rejecting Haagenson’s
pain testimony is persuasive.
First, the evidence that Haagenson was laid off from her last job in 2009 for
business reasons – prior to her alleged onset date of 2010 – has no bearing on
either her credibility or the disability determination. Haagenson never denied she
was let go for business reasons. More importantly, the reason for her termination
is not inconsistent with her testimony that, after her wrist surgery in 2008, she
struggled to keep up with her clerical and administrative duties.
1 For some reason unknown to the panel, the entire Excerpts of Record
are sealed, including the entire Administrative Record, as well as the Magistrate
Judge's Findings & Recommendation and the District Court's Order Adopting the
Findings & Recommendation, although these latter two documents are filed on the
public record in the district court. Given this state of the record, we order that to
the extent that any fact or information in the Administrative Record, the Magistrate
Judge's Findings & Recommendations, and the Order Adopting the same are
disclosed in this Memorandum, such disclosure shall be deemed to constitute an
order lifting the seal with respect to such disclosure.
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Second, the ALJ improperly rejected Haagenson’s testimony based on the
fact that Haagenson did not take (and no doctor prescribed) any narcotic pain
medication. In evaluating a claimant’s allegations of pain, the ALJ must consider
the claimant’s “daily activities,” “[t]reatment, other than medication,” and “[a]ny
measures [the claimant] use[s] to relieve [her] pain . . . .” 20 C.F.R.
§ 404.1529(c)(3). Haagenson sought relief from her pain by taking
over-the-counter pain medication, regularly visiting her chiropractor, and
restricting her movements and daily activities. There are many reasons why an
individual may not seek out prescription narcotics (and why a physician may not
prescribe them). On this record, Haagenson’s failure to seek out one particular
type of medication is not probative of the severity of her pain.
Finally, the ALJ improperly relied on Haagenson’s treating physician’s
failure to restrict her activities, with the exception of a 20-pound lifting restriction.
Dr. Avery had imposed the 20-pound limitation while Haagenson was working her
previous job at a hospital, during which she injured her back lifting a patient.
There was no need for Dr. Avery to impose an activity restriction in 2010 when she
knew that Haagenson was no longer working and when Haagenson presented pain
during the physical examinations and reported self-adjustments to her daily
movements.
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2. The ALJ erred by favoring the opinions of the two non-treating, non-
examining state physicians over the opinion of Haagenson’s treating physician.
The overall medical record, which includes radiology reports, progress notes, Dr.
Avery’s treatment notes, an MRI, and a neurosurgeon’s opinion, supports Dr.
Avery’s opinion that Haagenson cannot use her right hand to write or type and can
only sit for 20 minutes at a time.
The opinions of the two state physicians do not contradict Dr. Avery’s
opinion. “When an examining physician relies on the same clinical findings as a
treating physician, but differs only in his or her conclusions, the conclusions of the
examining physician are not ‘substantial evidence[]’” contradicting the opinion of
the treating physician. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Here, the
two state physicians never even examined Haagenson, and they did not rely on any
independent clinical findings in forming their opinions. Accordingly, their
opinions do not constitute substantial evidence justifying the ALJ’s rejection of Dr.
Avery’s opinion. See Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (“[M]ore
weight should be given to the opinion of a treating source than to the opinion of
doctors who do not treat the claimant. . . . The opinion of a nonexamining
physician cannot by itself constitute substantial evidence that justifies the rejection
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of the opinion of either an examining physician or a treating physician.” (citation
omitted)).
3. The ALJ also failed to provide germane reasons for rejecting the
opinions of Haagenson’s nurse and counselor, who constitute “other sources” that
can provide evidence about the severity of Haagenson’s impairments and how they
affect her ability to work. See 20 C.F.R. § 404.1513 (explaining that evidence may
come from “other sources” that do not qualify as “acceptable medical sources”);
see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“The ALJ may
discount testimony from these ‘other sources’ if the ALJ ‘gives reasons germane to
each witness for doing so.’” (citations omitted)). The only reason that the ALJ
offered for rejecting their opinions is that they are not “acceptable medical
sources” within the meaning of the federal regulation. However, the regulation
already presumes that nurses and counselors are non-acceptable medical sources,
yet still requires the ALJ to consider them as “other sources.”
4. We remand for the calculation and award of benefits. See Garrison v.
Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). As explained, the ALJ failed to
provide legally sufficient reasons for rejecting Haagenson’s testimony, as well as
the opinions of Haagenson’s treating physician, nurse, and counselor. The record
is fully developed and further administrative proceedings are unnecessary. During
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the hearing, the vocational expert addressed hypotheticals incorporating
Haagenson’s limitations, based on her testimony and the improperly rejected
opinions, and concluded that such individual would be unable to work. Thus, if the
improperly discredited evidence were credited as true, the ALJ would be required
to find Haagenson disabled on remand. See id. at 1022 n.28. On this record, there
is no serious doubt that Haagenson is disabled and entitled to benefits.
REVERSED and REMANDED for the calculation and award of
benefits.
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