KATRINA MCLAMB V. NANCY BERRYHILL, No. 17-35481 (9th Cir. 2018)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED JUL 2 2018 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT KATRINA MCLAMB, No. Plaintiff-Appellant, U.S. COURT OF APPEALS 17-35481 D.C. No. 2:16-cv-00563-PK v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court for the District of Oregon Paul J. Papak II, Magistrate Judge, Presiding Submitted June 28, 2018** Before: LEAVY, TROTT, and SILVERMAN, Circuit Judges Katrina McLamb appeals the district court’s judgment affirming the Commissioner of Social Security’s denial of McLamb’s application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. We review de novo, Garrison v. Colvin, 759 F.3d 995, 1010 * 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). (9th Cir. 2014), and we affirm for the reasons given by United States Magistrate Judge Paul J. Papak II in his Opinion and Order dated April 11, 2017. We attach Judge Papak’s thorough and persuasive “Analysis” as an Addendum to our disposition. AFFIRMED. 2 17-35481 ADDENDUM 3 17-35481 FILED McLamb v. Berryhill, 17-35481 LEAVY, Circuit Judge, dissenting. JUL 02 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS The ALJ found that McLamb has a severe impairment of scoliosis, cervical degenerative disc disease, lumbar degenerative disc disease, and sciatica of the left leg. McLamb testified that she “worked through the pain” of her condition until August 2012, when her pain increased to the point that she could no longer stand for more than five minutes, or sit longer than five minutes without shifting positions due to pain in her back and left leg. The ALJ found that McLamb is unable to perform her past relevant work as a waitress and bartender. He further found that McLamb’s determinable impairments could reasonably be expected to cause some of her alleged symptoms; however, McLamb’s statements concerning the intensity, persistence, and limiting effects of her symptoms “are not entirely credible for the reasons explained in this decision.” (ER 16). There is no finding of malingering. With those findings, the ALJ may reject McLamb’s testimony about the severity of her symptoms only by providing specific, clear, and convincing reasons for doing so. See Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). The Brown-Hunter case also tells us, in no uncertain terms, that to ensure that our review of the ALJ’s credibility determination is meaningful, and that a claimant’s testimony is not rejected arbitrarily, we require the ALJ to specify which testimony is found to be not credible, along with clear and convincing reasons supported by record evidence that supports the credibility determination. Id. (concluding that the ALJ erred by summarizing the evidence that supported the RFC determination without specifically identifying the reasons for rejecting claimant’s testimony); see also Treichler v. Comm’r Soc. Sec. Admin. 774 F.3d 1090, 1098 (9th Cir. 2014) (“We leave to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record.”). The ALJ summarized the medical evidence which shows a moderate, but not significantly worsening, scoliosis condition. The ALJ noted McLamb’s long work history despite her scoliosis, and McLamb’s use of conservative methods of pain management. The ALJ was required to identify which evidence was inconsistent with McLamb’s testimony regarding her progressively worsening pain symptoms. In other words, the ALJ cannot discount McLamb’s testimony simply by saying “for the reasons explained in this decision” without pointing to the evidence that specifically undermined her testimony. See Brown-Hunter, 806 F.3d at 493. The majority appends the district court’s analysis which, like the ALJ decision, cites the record evidence that could possibly support a credibility determination. But general findings, such as “for the reasons stated in this opinion,” are insufficient; rather, “the ALJ must identify what testimony is not 2 credible and what evidence undermines the claimant’s complaints.” Id., citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citation and internal quotation marks omitted). The ALJ also erred by failing to provide germane reasons to reject the lay testimony of McLamb’s mother, and this is not harmless error because the ALJ failed to provide adequate reasoning to reject McLamb’s testimony. See Molina v. Astrue, 674 F.3d 1104, 1114-17 (9th Cir. 2012). Because the ALJ failed to identify specifically, and in the first instance, which evidence was inconsistent with McLamb’s testimony, I would reverse and remand with instructions for further agency proceedings. 3
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