Debra A. Porteous v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBRA A. PORTEOUS,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 19-35550
D.C. No. 9:18-cv-00125-JCL
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge, Presiding
Submitted March 4, 2021**
San Francisco, California
Before: BALDOCK,*** WARDLAW, and BERZON, Circuit Judges.
Debra Porteous appeals the district court’s order upholding the Social
Security Administration’s denial of disability benefits. We reverse and remand for
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Bobby R. Baldock, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
MAR 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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further proceedings.
1. Substantial evidence supports the ALJ’s conclusion that Porteous does
not suffer from any listed impairment. To meet the listing criteria for arthritis, a
claimant must demonstrate either an “inability to ambulate effectively” or an
“inability to perform fine and gross movements effectively.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 14.09(A). Although Porteous uses a cane, she does not assert
that she is unable to walk without the use of a device that limits both upper
extremities, as required by the relevant regulations. See id. § 1.00(B)(2)(b)(1).
She also testified that she is able to go up and down at least some of the steps in
her home and to accompany her husband on some errands. Given these activities,
her condition falls outside the regulatory definition of ineffective ambulation. See
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)(2).
Likewise, substantial evidence supports the ALJ’s finding that Porteous’s
upper-extremity limitations do not meet the listing criteria. The inability to
perform fine and gross movements effectively is defined as “an extreme loss of
function of both upper extremities . . . that interferes very seriously with the
individual’s ability to independently initiate, sustain, or complete activities.” Id. §
1.00(B)(2)(c). Porteous testified that she is able to make coffee and simple meals,
care for her personal hygiene, feed her cats, and grip her cane. These activities are
not consistent with the degree of limitation identified in the regulations. See id.

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The ALJ’s determination that Porteous’s arthritis does not meet the requirements
of a Listed Impairment is therefore supported by substantial evidence.
2. The ALJ erred in discounting Porteous’s subjective testimony regarding
the severity of her symptoms. In determining a claimant’s residual functional
capacity (RFC), an ALJ must “determine whether the claimant has presented
objective medical evidence of an underlying impairment which could reasonably
be expected to produce the pain or other symptoms alleged.” Trevizo v. Berryhill,
871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1014
(9th Cir. 2014)). If she has, and there is no evidence of malingering, then the ALJ
may reject a claimant’s subjective testimony regarding her symptoms “only by
offering specific, clear and convincing reasons for doing so.” Id. (quoting
Garrison, 758 F.3d at 1015). As the ALJ found that Porteous’s symptoms could
reasonably arise from her “medically determinable impairments” and there is no
evidence of malingering, Porteous’s subjective testimony may only be properly
discounted for “specific, clear and convincing reasons.” Id.
The reasons the ALJ pointed to for rejecting Porteous’s subjective testimony
are not clear and convincing. First, the ALJ noted that Porteous “was in no acute
distress” during examinations, despite reporting in her hearing that she experiences
“excruciating pain.” But the record does contain evidence of several instances of
Porteous contacting her doctors in acute pain and notes “intermittent flares” of

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joint pain. Even assuming that Porteous’s doctors did not observe her in acute
distress during examinations, the lacuna in the medical record does not contradict
her assertion that she experiences episodes of extreme pain. And, where the
underlying impairment could cause the pain reported, an absence of supporting
medical evidence regarding the level of pain experienced, on its own, “cannot form
the sole basis for discounting pain testimony.” Burch v. Barnhart, 400 F.3d 676,
681 (9th Cir. 2005)—some other evidence is called for to support a lack of
credibility finding.
Here, the ALJ’s other reasons for rejecting Porteous’s testimony also fail.
The ALJ noted as a second reason for discounting Porteous’s testimony that
“throughout the record” Porteous reported “good management of her pain
symptoms.” But multiple doctors noted that Porteous’s pain-management regimen
was either insufficient to manage her chronic pain, or was apparently effective but
caused severe side effects. And Porteous’s more recent medical records note
“poorer” and worsening pain control. The ALJ’s assertion that Porteous’s pain is
well-managed is therefore not supported by substantial evidence and does not
provide a clear and convincing reason for discounting Porteous’s subjective
testimony.
Third, the ALJ noted that, “inconsistent with her reports of severe pain,”
Porteous failed to provide any documentation of her pain for dates after October

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2015. Porteous has since supplemented the record with records of worsening pain
management after October 2015 and of “excruciating” pain, as well as with
documentation of her severe anxiety and accompanying panic attacks. We
consider both the record before the ALJ and any additional material submitted to
the Appeals Council to determine whether, “in light of the record as a whole, the
ALJ’s decision was supported by substantial evidence.” Brewes v. Comm'r of Soc.
Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). In light of the supplemented
record, we hold that the ALJ has not presented clear and convincing reasons for
discounting Porteous’s testimony regarding the severity of her pain symptoms, and
that her determination is therefore not supported by substantial evidence.
A vocational expert testified that there were no jobs in the national economy
for an individual with Porteous’s work history, age, and educational background,
who would “be off-task 20% of an 8-hour work week.” Porteous testified that she
has “problems sitting for too long” and that she requires frequent breaks. As
neither Porteous’s testimony nor the medical record specifies the frequency and
duration of Porteous’s required breaks, the record is not sufficiently developed for
us to hold that, “taking the claimant’s testimony as true, the ALJ would clearly be
required to award benefits.” Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir.
2007). We therefore remand for further proceedings with instructions that the ALJ
credit Porteous’s subjective testimony.

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3. The ALJ did not err in relying on the opinion of a single reviewing
physician. The medical record submitted by Porteous does not contain any
medical opinions from treating physicians “reflect[ing] judgments about the nature
and severity of [her] impairment(s), including [her] symptoms, diagnosis and
prognosis, what [she] can still do despite impairment(s), and [her] physical or
mental restrictions.” 20 C.F.R. § 404.1527(a)(1). The ALJ therefore did not err in
failing to incorporate any such opinions into her RFC determination.
REVERSED and REMANDED.

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