Pearla Stillwater v. Commissioner of Social Security Administration

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEARLA STILLWATER,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant - Appellee.
No. 08-35976
D.C. No. 6:07-cv-00941-AA
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted December 10, 2009
Portland, Oregon
Before: FARRIS, D.W. NELSON and BERZON, Circuit Judges.
Pearla Stillwater appeals the determination by an Administrative Law Judge
that she is not disabled and does not qualify for SSI benefits. Stillwater alleges
disability since May 1, 1995. She argues that the ALJ erred in rejecting (1) her
testimony, (2) the opinion of Dr. Greenburg, (3) the opinions of two agency
FILED
JAN 07 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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medical experts, and (4) lay witness testimony; and in finding that Stillwater has
no severe mental impairment. She also assigns error to the posing of an
incomplete hypothetical to the vocational expert.
At step one of the five-step test for determining whether a claimant is
disabled, the ALJ found that Stillwater had not engaged in “substantial gainful
activity” during the period of alleged disability. At steps two and three, the ALJ
found that Stillwater has medically determinable impairments of vestibular
dysfunction, diabetes, back pain, and obesity, but that Stillwater’s impairments did
not meet or equal the requirements of a listed impairment. At step four, the ALJ
found that Stillwater retained the ability to perform a limited range of light work.
The ALJ also found that Stillwater was limited in her ability to climb, stoop, kneel,
crouch, and crawl. Based on this RFC assessment and the testimony of a
vocational expert, the ALJ found that Stillwater could perform her past relevant
work as a cashier.
We may set aside the Commissioner’s denial of disability insurance benefits
when the ALJ’s findings are based on legal error or are not supported by
substantial evidence in the record as a whole. Matney v. Sullivan, 981 F.2d 1016,
1019 (9th Cir. 1992).

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Stillwater argues that the ALJ improperly rejected her subjective symptom
testimony. Given that Stillwater produced objective medical evidence of an
underlying impairment that could reasonably be expected to produce the alleged
symptoms, the ALJ could reject Stillwater’s testimony about the severity of her
symptoms only after offering specific, clear and convincing reasons for doing so.
See Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
The ALJ stated that he rejected this testimony because: (1) the medical
evidence does not support the severity of Stillwater’s self-described symptoms; (2)
Stillwater’s work and school history demonstrates her ability to complete tasks; (3)
Stillwater’s daily activities contradict her testimony; and (4) Stillwater’s behavior
demonstrates inconsistencies.
None of these reasons are sufficient. Dr. Greenburg’s report and numerous
lay witnesses corroborate Stillwater’s testimony, which has been consistent over
time. Stillwater’s past work and school history was long ago and her medical
conditions could easily have changed. Stillwater’s daily activities are very limited,
do not appear to meet the threshold for transferable work skills, do not appear to
show an ability to engage in sustained work-related activity, and do not contradict
her testimony. The record also lacks substantial evidence for the ALJ’s conclusion

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that Stillwater was noncompliant with treatment, or that she provided conflicting
information regarding past work.
Stillwater argues that the ALJ improperly rejected Dr. Greenburg’s
testimony regarding her medical condition and physical limitations. Dr.
Greenburg, a specialist in endocrinology, was Stillwater’s treating physician and
treated her for diabetes from 2001 to 2005.
The ALJ rejected Dr. Greenburg’s entire medical opinion because he found
the doctor not qualified to assess the effects of Stillwater’s back pain, and also on
the theory that the opinion was not based on objective medical evidence because
Stillwater is noncompliant with her diabetes treatment and a compliant diabetic
would not have such problems.
Although the ALJ could reasonably discredit Dr. Greenburg with regard to
matters other than Stillwater’s diabetes, Dr. Greenburg was her diabetes doctor,
and his extensive opinion on that medical issue, documented in Diabetes Mellitus
Residual Functional Capacity Questionnaire, should not have been discredited
because of his lack of expertise with regard to back injuries. The ALJ gave no
adequate reason for rejecting Dr. Greenburg’s Diabetes Mellitus Residual
Functional Capacity Questionnaire.

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Stillwater challenges the ALJ’s rejection of Dr. Haynes’s and Dr. DeBolt’s
opinion that Stillwater could only perform sedentary work. The ALJ gave that
opinion “very little weight” based on the ALJ’s prior rejections of Stillwater’s
testimony and Dr. Greenburg’s opinion. Those rejections were improper. Dr.
Haynes’s and Dr. DeBolt’s opinion must be reconsidered.
Stillwater argues that the ALJ improperly rejected the statements and
testimony of several lay witnesses. Six lay witnesses completed statements
describing Stillwater’s limitations, and three of them testified at a hearing before
ALJ Schloss. ALJ Jones gave the lay witness testimony and statements “no
weight” in determining the severity of Stillwater’s impairments.
The ALJ’s rejection of the lay witness testimony was legal error. First, the
ALJ’s assertion that lay witness testimony of daily activities “generally provide[s]
little assistance” is incorrect as a matter of statutory and case law. See 20 C.F.R. §
404.1513(d); Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). More
specifically, the ALJ found the lay testimony credible, yet gave the testimony no
weight because the lay witnesses were not medical experts and their opinions were
“not supported by the entire evidence.” We have specifically rejected this
approach. Bruce v. Astrue, 557 F.3d 1113 (9th Cir. 2009).

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Stillwater argues that the ALJ erred by finding that she does not suffer from
a severe mental impairment at step two in the sequential evaluation process. The
ALJ reviewed the medical records regarding Stillwater’s mental state and
concluded that the records were devoid of any diagnoses of mental disorders and
did not reveal any mental health treatment. Stillwater does not contradict those
findings. The ALJ’s determination was supported by substantial evidence.
Stillwater argues that the ALJ’s hypothetical posed to the vocational expert
was deficient because it did not consider whether Stillwater had the stamina to
work on a sustained basis, considering her fatigue and need to rest. An ALJ has to
propose a hypothetical “based on medical assumptions supported by substantial
evidence in the record that reflects each of the claimant’s limitations.” Osenbrock
v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001). The ALJ’s hypothetical was based
on his improper rejection of three doctors’ opinions, Stillwater’s testimony, and lay
witness statements. On remand, the ALJ should reconsider the hypothetical and
the ultimate RFC determination.
REVERSED AND REMANDED.

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