                                                                           FILED
                            NOT FOR PUBLICATION
                                                                             JUL 19 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


ROSINA M. HAAGENSON,                             No.     14-35175

               Plaintiff-Appellant,              D.C. No. 4:13 cv-0004 BMM

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

               Defendant-Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                     Brian M. Morris, District Judge, Presiding

                              Submitted July 5, 2016**
                                Seattle, Washington

Before:        KLEINFELD, TASHIMA, and M. SMITH, Circuit Judges.

      Rosina Haagenson appeals the district court’s order affirming the

administrative law judge’s (“ALJ”) denial of benefits. We have jurisdiction under



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
28 U.S.C. § 1291, and we reverse and remand to the district court with instructions

to remand to the ALJ for the calculation and award of benefits.1

      1.     The ALJ failed to provide “‘specific, clear and convincing reasons

for’ rejecting the claimant’s testimony regarding the severity of the claimant’s

symptoms.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th

Cir. 2014) (citation omitted). None of the ALJ’s reasons for rejecting Haagenson’s

pain testimony is persuasive.

      First, the evidence that Haagenson was laid off from her last job in 2009 for

business reasons – prior to her alleged onset date of 2010 – has no bearing on

either her credibility or the disability determination. Haagenson never denied she

was let go for business reasons. More importantly, the reason for her termination

is not inconsistent with her testimony that, after her wrist surgery in 2008, she

struggled to keep up with her clerical and administrative duties.




      1
              For some reason unknown to the panel, the entire Excerpts of Record
are sealed, including the entire Administrative Record, as well as the Magistrate
Judge's Findings & Recommendation and the District Court's Order Adopting the
Findings & Recommendation, although these latter two documents are filed on the
public record in the district court. Given this state of the record, we order that to
the extent that any fact or information in the Administrative Record, the Magistrate
Judge's Findings & Recommendations, and the Order Adopting the same are
disclosed in this Memorandum, such disclosure shall be deemed to constitute an
order lifting the seal with respect to such disclosure.
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      Second, the ALJ improperly rejected Haagenson’s testimony based on the

fact that Haagenson did not take (and no doctor prescribed) any narcotic pain

medication. In evaluating a claimant’s allegations of pain, the ALJ must consider

the claimant’s “daily activities,” “[t]reatment, other than medication,” and “[a]ny

measures [the claimant] use[s] to relieve [her] pain . . . .” 20 C.F.R.

§ 404.1529(c)(3). Haagenson sought relief from her pain by taking

over-the-counter pain medication, regularly visiting her chiropractor, and

restricting her movements and daily activities. There are many reasons why an

individual may not seek out prescription narcotics (and why a physician may not

prescribe them). On this record, Haagenson’s failure to seek out one particular

type of medication is not probative of the severity of her pain.

      Finally, the ALJ improperly relied on Haagenson’s treating physician’s

failure to restrict her activities, with the exception of a 20-pound lifting restriction.

Dr. Avery had imposed the 20-pound limitation while Haagenson was working her

previous job at a hospital, during which she injured her back lifting a patient.

There was no need for Dr. Avery to impose an activity restriction in 2010 when she

knew that Haagenson was no longer working and when Haagenson presented pain

during the physical examinations and reported self-adjustments to her daily

movements.


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      2.     The ALJ erred by favoring the opinions of the two non-treating, non-

examining state physicians over the opinion of Haagenson’s treating physician.

The overall medical record, which includes radiology reports, progress notes, Dr.

Avery’s treatment notes, an MRI, and a neurosurgeon’s opinion, supports Dr.

Avery’s opinion that Haagenson cannot use her right hand to write or type and can

only sit for 20 minutes at a time.

      The opinions of the two state physicians do not contradict Dr. Avery’s

opinion. “When an examining physician relies on the same clinical findings as a

treating physician, but differs only in his or her conclusions, the conclusions of the

examining physician are not ‘substantial evidence[]’” contradicting the opinion of

the treating physician. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Here, the

two state physicians never even examined Haagenson, and they did not rely on any

independent clinical findings in forming their opinions. Accordingly, their

opinions do not constitute substantial evidence justifying the ALJ’s rejection of Dr.

Avery’s opinion. See Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (“[M]ore

weight should be given to the opinion of a treating source than to the opinion of

doctors who do not treat the claimant. . . . The opinion of a nonexamining

physician cannot by itself constitute substantial evidence that justifies the rejection




                                           4
of the opinion of either an examining physician or a treating physician.” (citation

omitted)).

      3.     The ALJ also failed to provide germane reasons for rejecting the

opinions of Haagenson’s nurse and counselor, who constitute “other sources” that

can provide evidence about the severity of Haagenson’s impairments and how they

affect her ability to work. See 20 C.F.R. § 404.1513 (explaining that evidence may

come from “other sources” that do not qualify as “acceptable medical sources”);

see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“The ALJ may

discount testimony from these ‘other sources’ if the ALJ ‘gives reasons germane to

each witness for doing so.’” (citations omitted)). The only reason that the ALJ

offered for rejecting their opinions is that they are not “acceptable medical

sources” within the meaning of the federal regulation. However, the regulation

already presumes that nurses and counselors are non-acceptable medical sources,

yet still requires the ALJ to consider them as “other sources.”

      4.     We remand for the calculation and award of benefits. See Garrison v.

Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). As explained, the ALJ failed to

provide legally sufficient reasons for rejecting Haagenson’s testimony, as well as

the opinions of Haagenson’s treating physician, nurse, and counselor. The record

is fully developed and further administrative proceedings are unnecessary. During


                                           5
the hearing, the vocational expert addressed hypotheticals incorporating

Haagenson’s limitations, based on her testimony and the improperly rejected

opinions, and concluded that such individual would be unable to work. Thus, if the

improperly discredited evidence were credited as true, the ALJ would be required

to find Haagenson disabled on remand. See id. at 1022 n.28. On this record, there

is no serious doubt that Haagenson is disabled and entitled to benefits.

      REVERSED and REMANDED for the calculation and award of

benefits.




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