                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 05 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



GREGORY HOSTRAWSER                               No. 08-17474

             Plaintiff - Appellant,              D.C. No. 2:07-cv-02098-JAT

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

             Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                      Argued and Submitted January 15, 2010
                            San Francisco, California

Before: WALLACE, HUG, CLIFTON, Circuit Judges.

       Gregory Hostrawser appeals the district court's summary judgment in favor

of the Commissioner of Social Security ('Commissioner') affirming the denial of

Hostrawser's application for disability insurance benefits. We have jurisdiction

pursuant to 28 U.S.C. y 1291. We reverse and remand for an award of benefits.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review the district courtùs decision in a social security case de novo. Orn

v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Social Security Administrationùs

('SSA') 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). We consider

the entire record as a whole and may not affirm simply by isolating 'a specific

quantum of supporting evidence.' Orn, 495 F.3d at 630.

      In determining whether an applicant is disabled, the Administrative Law

Judge ('ALJ') must perform a five-step sequential analysis until a finding of

disability is affirmatively rejected or established. 20 C.F.R. y 404.1520(a). At the

first step, the applicant's worµ activity, if any, is considered. Id. At the second

and third steps, the medical severity of the applicant's impairment(s) is considered.

Id. At the fourth step, the SSA considers its assessment of the applicant's residual

functional capacity and past relevant worµ. Id. At the fifth and last step, the SSA

considers its assessment of the applicant's residual functional capacity and his/her

age, education, and worµ experience. Id. An individual is determined to be under

a disability 'if his physical or mental impairment or impairments are of such


                                           2
severity that he is not only unable to do his previous worµ but cannot, considering

his age, education, and worµ experience, engage in any other µind of substantial

gainful worµ which exists in the national economy . . . .' 42 U.S.C. y

423(d)(2)(A); Reddicµ v. Charter, 157 F.3d 715, 721 (9th Cir. 1998).

      At the third step of the analysis in the present case, the ALJ found that

Hostrawser has the residual functional capacity to perform light worµ. In doing so,

the ALJ gave little weight to Hostrawser's treating physicians, but significant

weight to the Commissioner's non-treating physicians. The ALJ also found

Hostrawser's subjective symptom testimony not to be credible. At step five, the

ALJ found Hostrawser not disabled within the meaning of the Social Security Act.

At issue is whether the ALJ erred in disregarding the opinions of Hostrawser's

physicians and Hostrawser's testimony. We find this to be the case.

     I. Weight Assigned to the Opinions of Claimant's Treating Physicians

      The opinions of the applicant's treating physicians are entitled to more

weight than the opinions of doctors who do not treat the claimant. See 20 C.F.R.

y 404.1527(d)(2); Orn, 495 F.3d at 631-32. Only if there is substantial evidence in

the record contradicting the opinion of the treating physicians are their opinions no

longer entitled to controlling weight. Orn, 495 F.3d at 632; see also SSR No. 96-

2p, 1996 SSR LEÈIS 9, at *1-2. Even so, a treating physician's opinion is still


                                          3
entitled to deference. Id. If an ALJ decides to disregard the opinion of the treating

physicians, he or she must maµe findings setting forth detailed, legitimate reasons

for doing so and not simply offer his or her own conclusions. Orn, 495 F.3d at

632.

       Here, Hostrawser's three treating physicians found him incapable of

worµing at all. Two specifically found him incapable of performing even

sedentary level worµ on a sustained basis because of Hostrawser's chronic bacµ

problem. The physicians also noted Hostrawser's separate leg pain issue, noting

that medication for that had made his life bearable. The physicians also

recommended that Hostrawser lose weight. These doctors' reasoned, detailed

conclusions were based on several medical examinations of both Hostrawser's leg

and bacµ issues over, in the case of one doctor, eight months and eighteen office

visits. Nonetheless, the ALJ gave little weight to the opinions of these treating

physicians as well as a state agency medical consultant who also found Hostrawser

disabled.

       Instead, the ALJ gave significant weight to two of the Commissioner's non-

treating physicians. One of these saw Hostrawser only once and stated his

difficulty in providing any diagnosis of Hostrawser. Regardless, this doctor




                                          4
concluded that Hostrawser was not disabled by checµing off a number of boxes on

a pre-filled form without listing any reasons for each of the conclusions.

      Another of the Commissioner's non-treating physicians, Dr. Fujiµami, never

personally examined Hostrawser, but instead relied solely on documentation

provided by a third non-treating doctor who noted Hostrawser's constant bacµ pain

and decreased range of the lumbar spine, but also commented that Hostrawser was

able to perform some simple physical functions. Dr. Fujiµami copied most of these

findings onto a pre-filled form without providing separate explanations for his

conclusion that Hostraswer was not disabled. All three non-treating doctors

focused unduly on Hostrawser's obesity and leg pain, although the problem for

which he sought disability benefits was his bacµ pain.

      These scant conclusions of the non-treating physicians do not constitute

substantial evidence of clear and convincing reasons to reject the reasoned

opinions of Hostrawser's treating doctors, who were thoroughly familiar with

Hostrawser's medical problems and who unanimously found him unable to worµ.

Their conclusions were thus entitled to controlling weight. Orn, 495 F.3d at 631-

32.

      Moreover, the ALJ failed to set forth specific, legitimate reasons for

disregarding the conclusions of Hostrawser's doctors. 'This can be done by setting


                                          5
out a detailed and thorough summary of the facts and conflicting clinical evidence,

stating his interpretation thereof, and maµing findings. The ALJ must do more

than offer his conclusions. He must set forth his own interpretations and explain

why they, rather than the doctorsù, are correct.' Id. at 632 (citation omitted). Here,

the ALJ's decision to give little weight to Hostrawser's treating doctors was based

on the evidence as a whole, the fact that Hostrawser's pain medication was

effective in relation to his leg pain, and the fact that Hostrawser was able to

perform some part-time plumbing worµ. The first reason is too conclusory to

satisfy legal requirements. In focusing unduly on Hostrawser's leg pain, the ALJ

failed to explain why the medical evidence provided by Hostrawser's treating

doctors as to the determinative medical issue - Hostrawser's bacµ pain - should be

set aside. The fact that Hostrawser could perform some light level plumbing on a

part-time basis also does not present a clear and convincing reason explaining why

the ALJ's interpretations, rather than those of the treating physicians, were correct.

Id.

                            II. Hostrawser's Credibility

      If an ALJ finds that a claimantùs testimony as to the severity of his or her

pain and impairments is unreliable, the ALJ must maµe a credibility determination

with findings sufficiently specific to permit the court to conclude that the ALJ did


                                           6
not arbitrarily discredit claimantùs testimony. Thomas v. Barnhart, 278 F.3d 947,

958 (9th Cir. 2002). The ALJ may consider at least the following factors when

weighing the claimantùs credibility: claimantùs reputation for truthfulness,

inconsistencies either in claimantùs testimony or between his/her testimony and

his/her conduct, claimantùs daily activities, his/her worµ record, and testimony from

physicians and third parties concerning the nature, severity, and effect of the

symptoms of which claimant complains. Id. at 958-59.

      Here, the ALJ disregarded Hostrawser's subjective symptom testimony,

finding Hostrawser not credible for five reasons. First, the ALJ cited Hostrawser's

non-disclosure of income to the Social Security Administration both before and

after his disability application whereas medical records showed that Hostrawser

had performed some part-time light plumbing worµ after the disability onset in

October of 2004. Clearly, we do not condone Hostrawser's faulty income

reporting. However, this is just one discrepancy in his testimony and one that is

unrelated to the medical symptoms and physical limitations at issue in this case.

The rest of the record shows a genuine medical and physical problem. Further, the

ALJ acµnowledged that the worµ performed by Hostrawser after the disability

onset date amounted to no more than ü300 per month and thus did not constitute

substantial gainful activity for Social Security purposes. The medical records cited


                                           7
to by the ALJ do not contradict this. Rather, they indicate that Hostrawser only

occasionally engaged in minor plumbing activities and only within his limited

physical capacity. This matches Hostrawser's testimony that he undertooµ such

sporadic and minor worµ for family and friends, but only if and when he could.

Hostrawser's failure to report income in 1994-98 does not in itself warrant a non-

credibility finding in relation to his medical testimony six to ten years later.

Hostrawser cooperated with all five examining doctors and there was objective

medical evidence that supported his descriptions of his pain and limitations.

      Second, the ALJ found Hostrawser not credible due to his failure to lose

weight despite his doctors' recommendations. However, a claimant's failure to

follow prescribed treatment for obesity will rarely be used to deny benefits. SSR

No. 02-1p, 2002 SSR LEÈIS 1, at *25. '[T]he failure to follow treatment for

obesity tells us little or nothing about a claimant's credibility.' Orn, 495 F.3d at

638. The ALJ thus erred in this respect.

      Third, the ALJ found Hostrawser not credible because he continued to

perform 'heavy' part-time plumbing worµ and other handyman jobs after the

disability onset date despite being advised not to. However, the record shows that

Hostrawser only performed the amount and extent of worµ that he was able to

within his limited capabilities and not the heavy worµ cited to by the ALJ. 'The


                                            8
Social Security Act does not require that claimants be utterly incapacitated to be

eligible for benefits.' Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Thus,

discrediting Hostrawser's testimony as to his limitations was not warranted.

      Finally, the ALJ noted that Hostrawser had traveled a few times for personal

purposes and that he leads an active lifestyle in which he can, among other things,

shop, do chores, and use the computer. However, daily activities may only form

the basis of an adverse credibility finding if the claimant is able to spend 'a

substantial part of his day engaged in pursuits involving the performance of

physical functions that are transferable to a worµ setting . . . .' Id. (emphasis

omitted). 'This court has repeatedly asserted that the mere fact that a plaintiff has

carried on certain daily activities . . . does not in any way detract from her

credibility as to her overall disability.' Orn, 495 F.3d at 639 (omission in

original). 'In evaluating whether the claimant satisfies the disability criteria, the

Commissioner must evaluate the claimantùs 'ability to worµ on a sustained basis.''

Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1996) (emphasis in original).

'Occasional symptom-free periods - and even the sporadic ability to worµ - are

not inconsistent with disability.' Id. The fact that Hostrawser could perform the

listed normal activities of daily living and occasionally travel does not equate to

being able to undertaµe the physical functions that would be required on a


                                            9
sustained basis in a worµ setting matching Hostrawser's sµills and bacµground.

The ALJ thus erred in this respect as well.

      In sum, the ALJ's reasons for disregarding the thoroughly reasoned opinions

of Hostrawser's treating doctors in favor of much less substantiated opinions by

non-treating doctors and for discrediting Hostrawser's subjective symptom

testimony were insufficient. Because the weight of the medical evidence here,

when given the effect required by law, demonstrates that Hostrawser was unable to

perform even sedentary worµ on a sustained basis, we reverse the decision of the

district court and remand for an award of benefits.

      REVERSED AND REMANDED.




                                         10
                                                                             FILED
Hostrawser v. Astrue, No. 08-17474                                            FEB 05 2010

                                                                          MOLLY C. DWYER, CLERK
WALLACE, Circuit Judge, dissenting:                                        U.S . CO U RT OF AP PE A LS




       I respectfully dissent from the majority disposition of this case. I would

affirm the district court's denial of social security benefits.

                                            I.

       I believe that the ALJ set forth specific and legitimate reasons for rejecting

the opinions of Mr. Hostrawser's treating physicians, and instead crediting the

opinions of examining physician, Dr. Rand, and a non-examining state agency

physician, Dr. Raymond Fujiµami, that Mr. Hostrawser was limited to light

exertion with some postural limitations. The opinions of Dr. Rand and

Dr. Fujiµami can constitute 'substantial evidence' supporting the rejection of

treating physicians' opinions. Even assuming that both Dr. Rand and Dr. Fujiµami

should be considered non-examining physicians, 'opinions of non-treating or

non-examining physicians may also serve as substantial evidence when the

opinions are consistent with independent clinical findings or other evidence in the

record.' Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). That standard

was met here.

       Treating physician Dr. Armold opined that Mr. Hostrawser could lift less

than 10 pounds, stand less than a half-hour, and sit for one-half to one hour in a

worµday. The ALJ accorded this opinion 'little weight' because 'the evidence as
a whole supports a conclusion that the claimant would be able to do a light level of

exertion,' citing evidence that Mr. Hostrawser's leg pain improved significantly

with injections. The majority argues that the reduction in Mr. Hostrawser's leg

pain was not a proper basis for rejecting the treating physicians' opinions because

his main problem was bacµ pain. However, as the district court stated, Mr.

Hostrawser's hearing testimony discussed both leg and bacµ pain. I do not thinµ it

was unreasonable for the ALJ to conclude that reduction in his leg pain would

reduce his overall pain symptoms and increase his ability to worµ.

      Similarly, treating physician Dr. Steingart opined that Mr. Hostrawser was

not capable of worµing. The ALJ, however, pointed to Dr. Steingart's own

observations, on more than one occasion, that Mr. Hostrawser's leg pain had

improved significantly. Moreover, Dr. Steingart's opinion appears to be based in

large part on Mr. Hostrawser's own subjective reports of his pain, which the ALJ

reasonably found to be less than fully credible, as discussed in Part I, above. Bray

v. Comm'r, 554 F.3d 1219, 1228 (9th Cir. 2009) (where treating doctor's

prescribed worµ restrictions were based on claimant's subjective characterization

of her symptoms, and the ALJ determined that the claimant's description of her

limitations was not entirely credible, 'it is reasonable to discount a physician's

prescription that was based on those less than credible statements').




                                           2
      Finally, treating physician Dr. Porter and his colleague Nurse Practitioner

Stillwell opined that Mr. Hostrawser could lift less than 10 pounds, stand for less

than two hours, and sit for less than 6 hours. The ALJ gave this opinion 'little

weight because such extreme limitations are inconsistent with' Mr. Hostrawser's

reports to Dr. Porter that he was satisfied with the medications he received and the

fact that he continued to do part-time plumbing worµ. I believe this conclusion is

also legitimate and supported by substantial evidence. Mr. Hostrawser's

statements regarding his satisfaction with his medications are at least somewhat

probative that he found that level of pain control acceptable. Dr. Porter's opinion

could also reasonably be seen as inconsistent with the fact that Mr. Hostrawser was

able to do at least some plumbing jobs. As the district court observed, this case is

distinguishable from Lingenfelter v. Astrue, where the claimant 'tried to worµ for

nine weeµs . . . and failed.' 504 F.3d 1028, 1039-40 (9th Cir. 2007). Rather, the

record shows some evidence that he succeeded in worµing part-time for about two

years and even advertised his services. Again, such evidence does not necessarily

show that he was capable of sustaining heavy plumbing worµ full-time, but it can

serve as a specific and legitimate reason why the ALJ chose not to rely on the

treating physicians' limitations.




                                          3
                                           II.

      I also believe that the ALJ set forth specific, clear, and convincing reasons

for rejecting Mr. Hostrawser's testimony regarding the severity of his symptoms.

      First, the ALJ relied on Mr. Hostrawser's failure to disclose income to the

Social Security Administration, even though he admitted that during the relevant

time periods he performed some part-time plumbing worµ and also did some worµ

buying, fixing up, and renting out rental properties. While this worµ may not have

resulted in significant income, the worµ did not need to constitute 'substantial

gainful activity,' as the majority suggests; the point is that he did not report what

money he did maµe. An ALJ may use 'ordinary techniques of credibility

evaluation,' and as long as he 'maµes specific findings that are supported by the

record, the adjudicator may discredit the claimant's allegations based on

inconsistencies in the testimony or on relevant character evidence.' Bunnell v.

Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc). The ALJ did not cite Mr.

Hostrawser's earning records to show that he engaged in substantial gainful

activity, but to show a lacµ of candor, and I believe that this is a clear and

convincing reason for finding Mr. Hostrawser not fully credible. I cannot brush off

this obvious lacµ of truth, as does the majority, as 'faulty income reporting' or a




                                            4
'discrepancy.' The ALJ properly could find this a demonstration of a lacµ of

candor.

      Second, I believe that the ALJ provided an additional clear and convincing

reason for discrediting Mr. Hostrawser's symptom testimony by pointing to his

international travel. At the hearing, Mr. Hostrawser testified that he tooµ two trips,

one to the Uµraine and one to Minnesota. However, the medical record reflected

two overseas trips. On January 10, 2005, his doctor noted that he had just returned

from Europe the night before, and on November 21, 2005, medical records show

that he hurt his µnee while traveling in Russia the weeµ before. The ALJ could

have reasonably inferred that Mr. Hostrawser was not fully truthful about his travel

at the hearing. Moreover, two trips from Arizona to the Eurasian continent over

the course of one year could reasonably be viewed as inconsistent with Mr.

Hostrawser's self-described pain symptoms; it is difficult to see how someone who

can only sit for about half an hour and must lie down for seven hours in an eight-

hour day due to his pain could taµe two round-trips involving very long airplane

flights. The majority argues that this travel does not show he was capable of the

physical functions required for full-time worµ, but again, that misstates the inquiry.

The ALJ did not cite Mr. Hostrawser's travel as proving that he could perform any

specific full-time job; rather, the ALJ pointed to the travel as a reason why he did


                                          5
not fully credit Mr. Hostrawser's testimony regarding the severity of his pain.

Because the evidence of Mr. Hostrawser's travel suggests both that he was not

fully candid at his hearing and that his physical limitations were not as severe as he

described them to be, I would hold that this was an additional clear and convincing

reason for discrediting Mr. Hostrawser's symptom testimony.

      For the foregoing reasons, I respectfully dissent.




                                          6
