                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 21 2011

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




                            FOR THE NINTH CIRCUIT



KAY D. MCCAWLEY,                                 No. 10-35056

              Plaintiff - Appellant,             D.C. No. 9:09-cv-00039-JCL

  v.
                                                 MEMORANDUM *
MICHAEL J. ASTRUE,

              Defendant - Appellee.



                    Appeal from the United States District Court
                            for the District of Montana
                  Jeremiah C. Lynch, Magistrate Judge, Presiding

                     Argued and Submitted February 11, 2011
                              Seattle, Washington

Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.

       The ALJ’s determination that McCawley could “stand/walk no more than 2

hours” and “sit about 6 hours” in an 8-hour workday was not supported by

substantial evidence. Although Dr. Forney’s two medical source statements could

have supported the ALJ’s determination, it is unclear whether the ALJ treated Dr.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Forney’s assessments of McCawley’s sitting and standing abilities as separate

medical opinions and relied on the higher estimates of each. This would be a

permissible approach under SSR 96-5p, because the stand/walk and sit assessments

could be considered “separate medical opinions regarding diverse

physical . . . functions.” SSR 96-5p. The ALJ, however, did not state that he was

following this approach or point to any other evidence in the record supporting his

conclusion. Cf. Tackett v. Apfel, 180 F.3d 1094, 1102–03 (9th Cir. 1999). Because

a claimant’s residual functional capacity (RFC) “may be the most critical finding

contributing to the final . . . decision about disability,” SSR 96-5p, we remand to

the agency to clarify the basis for the ALJ’s RFC determination.

      The remainder of McCawley’s arguments lack merit. The ALJ gave

“specific and legitimate” reasons for discounting Dr. Chandler’s opinion that

McCawley could stand and walk only 45 minutes to 1 hour in an 8-hour workday.

See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Among other reasons, the

ALJ noted the inconsistency between Dr. Chandler’s statement that McCawley’s

fracture was “currently in the process of healing” and his own treatment records.

See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). The ALJ also gave

“specific and legitimate” reasons for partially discounting Dr. Forney’s opinion

about McCawley’s functional limitations. See Orn, 495 F.3d at 632. For example,


                                          2
the ALJ noted that Dr. Forney was opining outside her area of specialization, see

Holohan v. Massanari, 246 F.3d 1195, 1202 n.2 (9th Cir. 2001) (citing 20 C.F.R.

§ 404.1527(d)(5)), and that her statement that McCawley’s fracture was

“displaced” was inconsistent with the medical evidence, see Bayliss, 427 F.3d at

1216.

        The ALJ also gave “clear and convincing” reasons for discounting certain

portions of McCawley’s symptom testimony. See Smolen v. Chater, 80 F.3d 1273,

1283–84 (9th Cir. 1996). The ALJ discounted McCawley’s testimony regarding

her “catching” problem because it was unsupported by objective medical evidence.

See id. at 1281–82. The ALJ’s conclusion that the “locking” problem described

by Dr. Forney was not equivalent to the “catching” problem described by

McCawley was a reasonable resolution of an ambiguity in the record. See Johnson

v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). The ALJ partially discounted

McCawley’s testimony regarding her bipolar disorder because (among other

reasons) McCawley’s reported symptoms were inconsistent with her work history

and statements to treating psychiatrists. See Smolen, 80 F.3d at 1284–85. The ALJ

also discounted McCawley’s excess pain testimony because she failed to complain

to her treating physicians of extreme pain or seek treatment for such pain. See

Chavez v. Dep’t of Health & Human Servs., 103 F.3d 849, 853 (9th Cir. 1996)


                                          3
(noting that claims of excess pain “properly may be refuted by evidence of

claimant’s behavior, such as . . . [the claimant’s failure to] search for medical

attention” for the alleged pain); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)

(stating that “an unexplained, or inadequately explained, failure to seek treatment”

is the type of finding that can be “sufficient to discredit an allegation of disabling

excess pain”). This conclusion is supported by the record, which shows that

McCawley visited Dr. Forney a number of times during the relevant time period to

receive treatment for hypothyroidism but did not complain of extreme pain or

request pain medication. Nor does McCawley claim she refrained from requesting

pain medication because it was too expensive. The ALJ similarly discredited

McCawley’s claims of serious side effects from her medications because she failed

to complain to her treating psychiatrists of such side effects. Finally, taken in

context, the ALJ’s statement that “[i]t appeared that the claimant’s allegations of

disabling pain are overstated due to her wish to get benefits” was not an improper

consideration of McCawley’s ability to pay for treatment in assessing her

credibility, which is precluded by Gamble v. Chater, 68 F.3d 319, 321 (9th Cir.

1995).

         Except for the ALJ’s assessment of McCawley’s ability to stand/walk and

sit, as discussed above, the ALJ’s assessment of McCawley’s RFC was supported


                                            4
by substantial evidence. The ALJ gave adequate consideration to the effects of

obesity and fatigue due to hypothyroidism. Because the ALJ gave clear and

convincing reasons for discrediting McCawley’s testimony about excess pain and

medication side effects, he did not need to consider those symptoms in assessing

her RFC. See Bayliss, 427 F.3d at 1217. Finally, the ALJ’s decision not to include

mental limitations in McCawley’s RFC was supported by Dr. Bach’s expert

opinion, the fact that none of McCawley’s treating psychiatrists had “impose[d]

restrictions upon her mental ability to work,” and Dr. Finsaas’s opinion that

McCawley’s limitations were mainly physical.1

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.2




      1
         To the extent the ALJ erred at step 2 in concluding that McCawley’s
bipolar disorder was not “severe,” that error was harmless because the ALJ
considered the potential effects of bipolar disorder in determining McCawley’s
RFC. See Burch v. Barnhart, 400 F.3d 676, 681–83 (9th Cir. 2005).
      2
          Each party shall bear its own costs on appeal.

                                           5
                                                                             FILED
McCawley v. Astrue, 10-35056                                                  MAR 21 2011

                                                                         MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS




Fletcher, B., concurring in part and dissenting in part:

      I concur in the majority’s conclusion that the ALJ’s determination that

McCawley could “stand/walk no more than 2 hours” and “sit about 6 hours” in an

8-hour workday was not supported by substantial evidence, and that remand for

clarification is warranted. I respectfully dissent, however, from the majority’s

conclusion that the ALJ did not err in discounting certain portions of McCawley’s

testimony regarding her pain.

      An ALJ evaluating the credibility of a claimant’s testimony regarding

subjective pain must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d

586, 591 (9th Cir. 2009). “First, the 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.’”

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v.

Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)).

      There is no dispute that McCawley received an operation to correct a bad

break in her right leg, and that this operation involved the insertion of a metal plate

and fourteen screws. Nor is there any dispute that McCawley’s treating physician


                                           1
advised that this hardware ought to be removed. McCawley testified that she has

consistently suffered from a significant amount of pain and daily swelling since

undergoing this operation. McCawley has presented objective medical evidence,

therefore, of an underlying impairment that could reasonably be expected to

produce the pain and other symptoms to which she testified.

      Once a “claimant meets this first test, and there is no evidence of

malingering, the ALJ can reject the claimant’s testimony about the severity of her

symptoms only by offering specific, clear and convincing reasons for doing so.”

Lingenfelter, 504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th

Cir. 1996)). On this record, I must disagree with the majority’s conclusion that the

ALJ gave “clear and convincing” reasons for discounting McCawley’s symptom

testimony. Mem. Disp. at 3.

      McCawley testified that she sensed that “my tendons and my muscles are

catching” on the screws. She further testified that her pain limited her ability to

complete normal day-to-day activities at home, such as cooking breakfast,

cleaning, shopping, and driving. Although McCawley was prescribed a strong

painkiller immediately following her surgery, her treating doctor retired and she

has since been unable to refill this prescription. She does not have insurance, so




                                           2
she has made do by taking large doses of Tylenol, up to 1800 milligrams a day.1

She also testified that she did not have the money to pursue physical therapy

following the initial surgery and that she has not had the recommended follow-up

operation to remove the hardware from her leg because she cannot afford that

treatment given her current financial situation.

      In light of McCawley’s financial situation, the fact that she has not sought or

received additional treatment for severe pain should not be held to undermine her

testimony. See Gamble v. Chater, 68 F.3d 319, 321–22 (9th Cir. 1995)

(“Disability benefits may not be denied because of the claimant’s failure to obtain

treatment he cannot obtain for lack of funds. . . . It flies in the face of the patent

purposes of the Social Security Act to deny benefits to someone because he is too

poor to obtain medical treatment that may help him.” (citation omitted)).2 The


      1
        There are 500 mg of the pain reliever acetaminophen in one extra-strength
Tylenol capsule.
      2
         The majority asserts that, “taken in context, the ALJ’s statement that ‘[i]t
appeared that the claimant’s allegations of disabling pain are overstated due to her
wish to get benefits,’ was not an improper consideration of McCawley’s ability to
pay for treatment in assessing her credibility.” Mem. Disp. at 4. Gamble, the
majority rightly notes, precludes ALJs from considering a claimant’s inability to
pay for treatment in making credibility determinations. The majority’s reference to
“the context” of this case, however, neither clarifies nor justifies its determination
that the ALJ did not run afoul of Gamble here. To the contrary: the context of the
ALJ’s remarks, in particular his inappropriate commentary regarding McCawley’s
financial status, indicate that he disregarded Gamble’s admonitions. This outcome

                                            3
majority errs in reaching the contrary conclusion that the ALJ correctly

“discounted [McCawley’s] excess pain testimony because she failed to complain to

her treating physicians of extreme pain or seek treatment for such pain.”3 This, in

effect, punishes McCawley for being too poor to seek treatment.

      “Once the claimant produces medical evidence of an underlying impairment,

the Commissioner may not discredit the claimant’s testimony as to subjective




“directly contravenes the primary purpose of the Social Security Act: ‘to give
financial assistance to disabled persons because they are without the ability to
sustain themselves.’” Gamble, 68 F.3d at 322 (quoting Gordon v. Schweiker, 725
F.2d 231, 237 (9th Cir. 1984)).
      3
         Neither Chavez v. Dep’t of Health & Human Servs., 103 F.3d 849 (9th Cir.
1996), nor Fair v. Bowen, 885 F.2d 597 (9th Cir. 1989), support the majority’s
contrary conclusion. Although Chavez held that claims of excess pain may be
refuted by evidence of a claimant’s behavior, such as the failure to seek further
medical treatment, it does not hold that all claims of excess pain must be rejected
under such circumstances. Rather, the ALJ is required to engage in a fact-intensive
inquiry and examine the details of the case actually before him or her. Chavez is
also factually distinguishable, since the claimant in that case presented medical
evidence of a back injury, but did not present additional evidence of corrective
surgery and testify to the pain resulting from that procedure.
       Likewise, the majority’s reliance on Fair is misplaced. There, the claimant’s
own treating physician testified before the ALJ that he had “not followed
recommended exercise and physical therapy programs designed to reduce his
weight and relieve his back pain.” 885 F.2d at 600. Moreover, the court was
careful to hold that “unexplained, or inadequately explained, failure to seek
treatment or follow a prescribed course of treatment” was a legitimate basis for
discrediting an allegation of disabling excess pain. Id. at 603 (emphases added).
McCawley’s inability to afford further treatment is neither unexplained or
inadequately explained on the record before us.

                                          4
symptoms merely because they are unsupported by objective evidence.” Berry v.

Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (quoting Lester v. Chater, 81 F.3d

821, 834 (9th Cir. 1995)). Instead, the ALJ must “provide specific, cogent reasons

for the disbelief.” Id. (quoting Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.

2001)). The record contains no “specific, cogent reasons” for the ALJ’s disbelief.

Accordingly, I would hold that McCawley’s testimony was credible, and that her

pain prevents her from regular gainful employment.




                                         5
