                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 09 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ROBIN L. LAPEIRRE-GUTT,                          No. 09-15642

             Plaintiff - Appellant,              D.C. No. 2:08-cv-00461-ROS

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security,

             Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Roslyn O. Silver, District Judge, Presiding

                       Argued and Submitted April 16, 2010
                            San Francisco, California

Before: TASHIMA and THOMAS, Circuit Judges, and STAFFORD, Senior
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable William Stafford, United States District Judge for the
Northern District of Florida, sitting by designation.
      Robin Lapeirre-Gutt appeals an adverse grant of summary judgment in favor

of the Commissioner of Social Security (“Commissioner”), upholding the denial of

her application for disability insurance benefits under Title II of the Social Security

Act. In her application, Lapeirre-Gutt alleged disability due to degenerative disc

disease, post-cervical fusion of the C5-C6 vertebrates, fibromyalgia, headaches and

depression. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and

remand for payment of benefits. Because the factual and procedural background is

familiar to the parties, we will not recount it here.

      We review the district court’s decision in a social security case de novo.

Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 1997). The Social Security

Administration’s disability determination is upheld unless it contains legal error or

is not supported by substantial evidence. Id. Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

      At the fourth step of the sequential process, the administrative law judge

(“ALJ”) determined that Lapeirre-Gutt retains the residual functional capacity to

perform a slightly reduced range of exertionally light work, including her past

relevant work, and therefore is not disabled. In so finding, the ALJ determined that




                                            2
Lapeirre-Gutt’s allegations of disabling pain were not credible. The ALJ also

declined to credit the conclusions of Lapeirre-Gutt’s three treating physicians.

                                          I

      Lapeirre-Gutt contends the ALJ erred in finding her testimony regarding her

symptoms and limitations not fully credible. We agree. A claimant’s own

testimony of disabling pain cannot be discredited “merely because [it is]

unsupported by objective evidence.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir.

1996). Where, as here, there is no affirmative evidence of malingering, the ALJ

may reject the claimant’s testimony regarding the severity of her pain “only if he

makes specific findings stating clear and convincing reasons for doing so.” Smolen

v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1986).

      The ALJ offered numerous reasons why he did not find Lapeirre-Gutt’s

testimony to be credible. We find these justifications to be unconvincing. For

example, the ALJ noted that Lapeirre-Gutt has had only conservative treatment

“consisting of copious amounts of narcotic pain medication as well as occipital

nerve blocks and trigger point injections.” Even assuming Lapeirre-Gutt’s regimen

of powerful pain medications and injections can constitute “conservative

treatment,” compare Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th Cir. 2008)

(ALJ found claimant’s treatment to be conservative where claimant took only


                                          3
Ibuprofen to treat his pain), it is untrue that Lapeirre-Gutt’s treatment has been so

limited. Lapeirre-Gutt underwent cervical fusion surgery in May 2004 in an

attempt to relieve her pain symptoms. While Lapeirre-Gutt has not undergone any

surgery since that time, the record does not reflect that more aggressive treatment

options are appropriate or available. A claimant cannot be discredited for failing to

pursue non-conservative treatment options where none exist.

      The ALJ also discredited Lapeirre-Gutt’s allegations of disabling pain based

on her decision not to pursue physical therapy despite her physician’s

recommendations to do so. An unexplained, or inadequately explained, failure to

seek treatment or follow a prescribed course of treatment can be a basis to discount

a claimant’s symptom testimony. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.

1989). However, this court has held that no adverse credibility finding is

warranted where a claimant has a good reason for failing to obtain treatment. See

Orn, 495 F.3d at 638. Here, Lapeirre-Gutt explained that she discontinued

physical therapy because her husband could no longer driver her to her sessions

and she was unable to drive herself. Lapeirre-Gutt also testified at her hearing that

physical therapy was not effective. Her testimony is supported by ample evidence

in the record demonstrating that physical therapy only left Lapeirre-Gutt in

increased pain. Lapeirre-Gutt has proffered a sufficient explanation for her


                                           4
decision to discontinue physical therapy, and the ALJ erred in discrediting her

testimony on this ground.

      While one of the ALJ’s adverse credibility findings potentially approaches

the “clear and convincing” standard, it does not, based on the evidence before us,

lead us to change the present analysis. As the ALJ found, Lapeirre-Gutt’s

testimony that she was not employed subsequent to November 2004 is potentially

inconsistent with her treating physician’s January 2005 progress notes indicating

that Lapeirre-Gutt was working for a friend. However, this finding, standing alone,

is not a sufficient basis to question Lapeirre-Gutt’s testimony regarding the extent

of her pain. First, even assuming that Lapeirre-Gutt was employed in January

2005, the record does not indicate that she performed this work on any kind of

regular or sustained basis. It is entirely possible that Lapeirre-Gutt undertook any

work only for a few hours at a time and only on those days she felt her best.

Moreover, the physician’s progress notes clearly indicate that Lapeirre-Gutt later

reported to her doctor that she was forced to discontinue any employment due to

her medical conditions. In light of substantial evidence supporting Lapeirre-Gutt’s

testimony regarding the extent of her symptoms, we conclude that Lapeirre-Gutt’s

ultimately unsuccessful attempt to return to work does not undermine her

allegations of disabling pain.


                                          5
      The ALJ provided numerous other justifications for discrediting Lapeirre-

Gutt’s testimony. However, each of these findings is based on a

mischaracterization of the evidentiary record or a presumption that has no basis in

the medical record. Contrary to the ALJ’s findings, Lapeirre-Gutt’s activity levels

and reports to her doctors were fully consistent with her allegations of disabling

pain. While the ALJ relied upon the absence of symptoms the ALJ himself

assumed would be present in someone with Lapeirre-Gutt’s claimed conditions and

inactivity levels, nothing in the medical record supports these assumptions. For

example, the ALJ noted that Lapeirre-Gutt’s lack of muscle atrophy was

inconsistent with her allegations of inactivity, and that her lack of radicular

symptoms did not comport with testimony that she had trouble gripping things.

However, no medical evidence suggests that high inactivity levels necessarily lead

to muscle atrophy or that trouble gripping can stem only from radicular symptoms.

Thus, these findings are not based on substantial evidence. The ALJ erred in his

adverse credibility determination.

                                           II

      Lapeirre-Gutt also contends that the ALJ erred in rejecting the disability

conclusions of her three treating physicians in favor of the conclusions of a non-

examining state physician. We agree.


                                           6
      Where a treating doctor’s opinion is uncontradicted, an ALJ may reject it

only for “clear and convincing” reasons; however, a contradicted opinion of a

treating or examining physician may be rejected for “specific and legitimate”

reasons. Lester, 81 F.3d at 830. The opinion of a non-examining physician,

without other evidence, is insufficient to reject the opinion of a treating or

examining physician. Id. at 831. The parties dispute whether the “clear and

convincing” or “specific and legitimate” standard applies here. We need not reach

this issue, however, because we conclude that the ALJ erred under even the

“specific and legitimate” standard.

      The ALJ rejected the medical opinions of Lapeirre-Gutt’s treating physicians

on the ground that those opinions lacked objective support in the medical record

and were, rather, based on Lapeirre-Gutt’s subjective complaints. However,

because the ALJ’s adverse credibility determination was based on erroneous

considerations, that the treating physicians’ opinions may have been based on

Lapeirre-Gutt’s subjective complaints is not necessarily a basis for rejecting those

opinions. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir.

1999) (“A physician’s opinion of disability premised to a large extent upon the

claimant’s own accounts of his symptoms and limitations may be disregarded

where those complaints have been properly discounted”) (emphasis added).


                                           7
      Independent of the ALJ’s erroneous credibility analysis, the ALJ also erred

in demanding “objective evidence” of fibromyalgia. See Benecke v. Barnhart, 379

F.3d 587, 594 (9th Cir. 2004) (the ALJ erred by “effectively requiring objective

evidence for a disease that eludes such measurement”) (internal quotation marks,

citation, and alterations omitted).

      The ALJ provided numerous additional reasons for rejecting the opinions of

Lapeirre-Gutt’s treating physicians. However, we conclude that none of them is

supported by substantial evidence in the record. As one example, the ALJ found

that Dr. Kapoor’s headache impairment questionnaire was inconsistent with

Lapeirre-Gutt’s statements that the severity of her headaches had improved.

However, the questionnaire was completed nearly one year before Lapeirre-Gutt’s

claims of improvement, and thus there is no inconsistency.

      The ALJ discredited Dr. Donesky on the ground that his opinion did not

include a specific assessment of Lapeirre-Gutt’s limitations in particular activities.

“When evaluating conflicting medical opinions, an ALJ need not accept the

opinions of a doctor if that opinion is brief, conclusory, and inadequately supported

by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

However, a review of the record demonstrates that Dr. Donesky’s opinion is not

conclusory or unsupported. To the contrary, the record includes extensive clinical


                                           8
findings and progress notes relaying Dr. Donesky’s specific conclusions regarding

Lapeirre-Gutt’s impairments.

      The ALJ’s remaining proffered justifications for discrediting the medical

opinions of Lapeirre-Gutt’s treating physicians are equally unpersuasive.

                                          III

      “[W]here the ALJ improperly rejects the claimant’s testimony regarding

[her] limitations, and the claimant would be disabled if [her] testimony were

credited, we will not remand solely to allow the ALJ to make specific findings

regarding that testimony.” Lester, 81 F.3d at 834 (internal quotation marks and

citations omitted). Similarly, where the ALJ fails to provide adequate reasons for

rejecting the opinion of a treating physician, “we credit that opinion as a matter of

law.” Id. (internal quotation marks and citations omitted). Because the evidence

disregarded by the ALJ, “when it is given the effect required by law,” establishes

that Lapeirre-Gutt was disabled during the relevant period, we remand with

instructions to remand to the Commissioner of Social Security for immediate

payment of benefits. Lester, 81 F.3d at 834.

      REVERSED and REMANDED.




                                           9
