Pamela Miller v. NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMELA MILLER,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration
Defendant-Appellee.
No. 17-35586
D.C. No. 1:16-cv-00876-SB
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Stacie F. Beckerman, Magistrate Judge, Presiding
Submitted July 11, 2018**
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,*** District
Judge.
Pamela Miller appeals from the district court’s judgment affirming the
* 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 Joan Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
JUL 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Social Security Commissioner’s denial of her application for disability insurance
benefits under Title II of the Social Security Act. We review the district court’s
decision de novo, and the Commissioner’s denial of benefits must be supported by
substantial evidence and a correct application of the law. Molina v. Astrue, 674
F.3d 1104, 1110 (9th Cir. 2012). As the parties are familiar with the facts, we do
not recount them here. We reverse and remand.
1. The Administrative Law Judge (“ALJ”) erred in rejecting Miller’s
symptom testimony. The ALJ found Miller’s testimony inconsistent with her daily
activities, conservative treatment, and treatment records, and that Miller was not
always compliant with her treatment plan. In reaching his conclusion, however,
the ALJ cherry-picked portions of the record, rather than viewing the diagnostic
record as a whole. See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)
(stating that doctor’s “statements must be read in context of the overall diagnostic
picture”). Miller’s testimony was not inconsistent with her minimal daily
activities; her conservative treatment was due, at least in part, to the fact that she
could not afford indicated workups; and the ALJ ignored portions of the treatment
records and notes on Miller’s compliance with her treatment plan that were not
favorable to his conclusion. Because the ALJ failed to present “clear and
convincing” reasons for rejecting Miller’s testimony, Lester v. Chater, 81 F.3d
821, 834 (9th Cir. 1995), we find error.

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2. The ALJ also erred in rejecting the opinion of Miller’s treating
physician, Dr. James Calvert. Dr. Calvert concluded that Miller was unable to
perform light or sedentary work or complete a normal workday and workweek
without interruptions from medically based symptoms. The ALJ gave “little
weight” to Dr. Calvert’s opinion because the ALJ found it was (a) inconsistent
with Dr. Calvert’s treatment records; (b) largely premised on Miller’s reports,
which the ALJ found less than credible; and (c) inconsistent with the opinions of
two non-examining physicians. Yet, Dr. Calvert’s diagnosis of chronic fatigue
syndrome, for example, was consistent with the criteria set out in Social Security
Ruling 14-1p. The ALJ again relied on isolated statements from the treatment
records to conclude that Dr. Calvert’s opinion was inconsistent with his records.
He also improperly discredited Miller’s reports to Dr. Calvert after failing to
present clear and convincing reasons for rejecting her testimony, and he
improperly gave greater weight to the opinions of non-examining physicians
without giving “specific and legitimate reasons” supported by “substantial
evidence.” See Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017). We thus
find error.
3. The ALJ further erred in rejecting Miller’s husband’s adult function
report. The ALJ again relied on cherry-picked portions of the medical records to
conclude that Mr. Miller’s adult function report was inconsistent with Miller’s

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“generally normal physical examinations and overall mild findings.” Although the
ALJ provided a “specific reason[] germane to [this] witness” for not considering
his opinions, Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th
Cir. 1999), this reason was flawed given the failure to fully consider Dr. Calvert’s
medical opinion.
4. The ALJ’s determination that Miller could perform her past relevant
work as an office manager (from which she had been terminated for inability to
attend and perform her work) was not supported by substantial evidence and was
thus not harmless error. See Molina, 674 F.3d at 1110; Ghanim v. Colvin, 763 F.3d
1154, 1162 (9th Cir. 2014). The hypotheticals the ALJ posed to the vocational
expert (“VE”) failed to set out all credible limitations and restrictions pertaining to
Miller, as required. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).
Because the ALJ improperly rejected Miller’s testimony, Dr. Calvert’s opinion,
and Mr. Miller’s statement, he did not pose hypotheticals to the VE that set out all
Miller’s limitations and restrictions. Indeed, when the ALJ presented a
hypothetical close to Miller’s limitations, the VE concluded that an individual with
such restrictions could not be gainfully employed.
5. Finally, Miller argues that we should direct an award of benefits on
remand. But because the ALJ failed to consider relevant testimony and evidence

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and subsequently failed to ask the VE hypotheticals setting out all of Miller’s
limitations and restrictions, enhancement of the record would be useful. See
Harman v. Apfel, 211 F.3d 1172, 1178–81 (9th Cir. 2000). Remand for further
proceedings, rather than an award of benefits, is thus appropriate.
Accordingly, we reverse and remand to the district court with instructions to
remand to the Social Security Administration for further proceedings consistent
with this disposition.
REVERSED AND REMANDED WITH INSTRUCTION TO REMAND
TO COMMISSIONER.

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