                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 10 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CAROLYN M. HANES,                                No. 14-16055

              Plaintiff - Appellant,             D.C. No. 2:13-cv-00309-SRB

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

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                        Argued and Submitted May 9, 2016
                            San Francisco, California

Before: KLEINFELD, IKUTA, and WATFORD, Circuit Judges.

      Carolyn M. Hanes appeals from the district court’s order affirming the

Administrative Law Judge’s (ALJ) denial of benefits. We have jurisdiction under

28 U.S.C. § 1291, and we review de novo. Treichler v. Comm’r of Soc. Sec.

Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The ALJ’s reasons for rejecting Hanes’s testimony regarding the severity of

her symptoms were “specific, clear and convincing,” see id. at 1102, and were

supported by substantial evidence. In making his adverse credibility

determination, the ALJ determined that Hanes’s description of extreme pain and

disability was inconsistent with her description of her daily activities, which

included cooking, cleaning, doing laundry, driving, shopping, visiting with family,

and traveling. See Molina v. Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012).

Moreover, the ALJ supported his conclusion with evidence of Hanes’s

conservative treatment plan, which consisted primarily of minimal medication,

limited injections, physical therapy, and gentle exercise. See Parra v. Astrue, 481

F.3d 742, 751 (9th Cir. 2007). The ALJ did not err in giving slight weight to his

personal observations of Hanes’s functioning at the hearing because the

observations did not form the “sole basis” of his adverse credibility determination.1

Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The ALJ also found that the

objective medical evidence in the record included evidence that Hanes’s condition

improved with treatment.




      1
       Any error in the ALJ’s speculation of Hanes’s sleeping patterns was
therefore harmless. See Treichler, 775 F.3d at 1099.

                                           2
      The ALJ’s residual functional capacity assessment was supported by

substantial evidence. In light of the conflicting medical opinions, the ALJ gave

“specific and legitimate reasons” for discounting the treating physicians’ opinions,

and those reasons were supported by substantial evidence. See Hill v. Astrue, 698

F.3d 1153, 1159–60 (9th Cir. 2012). The ALJ properly concluded that Dr.

Hawkins’s and Dr. Pena’s functional assessments were not supported by clinical or

diagnostic findings. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.

2008). In addition, the ALJ reasonably relied on his findings regarding Hanes’s

daily activities, her conservative treatment, and her positive response to that

treatment to conclude that the assessments of Dr. Hawkins and Dr. Pena were

inconsistent with the objective evidence in the record. The ALJ similarly did not

err in giving little weight to the opinion of Hanes’s examining physician, Dr.

Mansfield. Dr. Mansfield diagnosed only minimal mental limitations, his

description of Hanes’s medical issues was contradicted by the objective evidence

in the record, and he deferred to Hanes’s physician regarding her ability to sustain

gainful employment. The dissent engages in an extensive review and evaluation of

the medical records and testimony, but, “as we reiterate in nearly every case where

we are called upon to review a denial of benefits, we are not triers of fact,” Fair v.

Bowen, 885 F.2d 597, 604 (9th Cir. 1989). While “[i]t may well be that a different


                                           3
judge, evaluating the same evidence, would have found [Hanes’s] allegations of

disabling pain credible,” id., so long as the ALJ’s interpretation of the record is

reasonable and supported by substantial evidence, we may not second-guess it.

Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

      Even if the ALJ erred in rejecting the testimony of Hanes’s husband for not

being under oath, that error was harmless. See Treichler, 775 F.3d at 1099. The

ALJ gave clear and convincing reasons for rejecting Hanes’s testimony, and

Hanes’s husband’s testimony merely parroted her complaints. See Molina, 674

F.3d at 1117.

      In concluding that Hanes could perform work, the ALJ reasonably relied on

the vocational expert’s (VE) testimony given in response to the ALJ’s

hypothetical. The hypothetical contained all of Hanes’s limitations that the ALJ

found were supported by the record, Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th

Cir. 2005), so the ALJ did not err in excluding limitations from Dr. Hawkins and

Dr. Pena. Moreover, the ALJ did not err by declining to credit the VE’s testimony

in regards to a hypothetical that included moderate mental limitations. The

moderate mental limitations were not supported by the record because they were

taken from a reviewing physician’s check-the-box form, which is entitled to little

weight, see Molina, 674 F.3d at 1111–12, and were contradicted by the same


                                           4
reviewing physician’s conclusion that Hanes’s mental capacity enabled her to

perform unskilled work on a sustained basis. See id.

AFFIRMED.




                                         5
                                                                            FILED
Hanes v. Colvin, No. 14-16055
                                                                             JUN 10 2016
WATFORD, Circuit Judge, dissenting:                                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


       Our review in Social Security cases is “highly deferential,” Valentine v.

Commissioner, Social Security Administration, 574 F.3d 685, 690 (9th Cir. 2009),

but that deference has limits. We can uphold an ALJ’s decision only if it applies

the correct legal standards and is supported by substantial evidence. The ALJ’s

decision in this case fails to clear that bar.

       Let’s start with the ALJ’s determination that Hanes’ testimony that she

suffers from persistent, disabling pain was “less than fully credible.” Because

Hanes presented evidence of several underlying impairments, including

fibromyalgia and degenerative disc disease, and because the record contains no

affirmative evidence of malingering, the ALJ needed to provide “specific, clear,

and convincing” reasons for discounting her testimony. Burrell v. Colvin, 775

F.3d 1133, 1136–37 (9th Cir. 2014); see Carmickle v. Commissioner, 533 F.3d

1155, 1160 n.1 (9th Cir. 2008).

       None of the ALJ’s five reasons for discounting Hanes’ testimony holds

water. First, Hanes’ daily living activities—which included preparing light meals,

folding laundry, and maintaining a minimum standard of hygiene—weren’t

inconsistent with her claims of frequent, debilitating pain, so they don’t provide

any basis for thinking that she is exaggerating her symptoms. See Garrison v.
                                                                           Page 2 of 8
Colvin, 759 F.3d 995, 1015–16 (9th Cir. 2014). Second, the ALJ’s finding that

Hanes had received “essentially routine and/or conservative” treatment, not “the

type of medical treatment one would expect for a disabled individual,” is frankly

baffling in light of the record, which indicates that Hanes has relied on high doses

of a variety of powerful narcotic painkillers (including Opana, Fentanyl, and

morphine), and that she has undergone spinal injections and radiofrequency

ablation. It’s unclear what additional treatment she should have sought out, given

that a neurosurgeon told her back surgery would pose a high risk of complications

and was unlikely to alleviate her symptoms in any event. See Orn v. Astrue, 495

F.3d 625, 638 (9th Cir. 2007). Third, the Commissioner concedes that it was

improper for the ALJ to speculate that Hanes’ irregular sleep patterns were

attributable to her daytime napping rather than, as she claims, to being frequently

awoken by pain at night. Fourth, that Hanes didn’t look like she was in pain at the

hearing isn’t independently sufficient to support a denial of benefits. See Fair v.

Bowen, 885 F.2d 597, 602 (9th Cir. 1989).

      That leaves one remaining rationale for the ALJ’s adverse credibility

determination: that the medical evidence supposedly indicates she tends to

exaggerate her symptoms. This last rationale is insufficient as well. Although Dr.

Cunningham noted “giveaway weakness” in the exam, he stated that the giveaway
                                                                           Page 3 of 8
weakness was “due to pain” and that Hanes gave good effort on the exam. Dr.

Wasserman opined that Hanes’ symptoms were mostly consistent with

fibromyalgia, but observed some “concerning conversion type signs” and strongly

recommended mental-health treatment. The possibility that Hanes suffers from a

conversion disorder isn’t grounds for concluding that she’s exaggerating her pain,

only that her pain may be at least partly psychological in origin. See Carradine v.

Barnhart, 360 F.3d 751, 754–55 (7th Cir. 2004). All that’s left, then, is Dr.

Wasserman’s aside that Hanes’ pain may have a “malingering component.” In

light of the lengthy medical record, which details Hanes’ extensive, fruitless search

for pain relief and multiple doctors’ acceptance of her complaints as genuine, that

comment is too thin a reed to support the ALJ’s finding that Hanes exaggerated her

symptoms.

      The ALJ’s improper credibility finding wasn’t the only flaw in his

reasoning. He also failed to give “germane” reasons for disregarding the “third-

party function reports” submitted by Hanes’ husband. See Rounds v.

Commissioner, 807 F.3d 996, 1007 (9th Cir. 2015). Hanes’ husband didn’t simply

parrot her subjective complaints of pain but instead described her limited abilities

around the house, as he was well qualified to do. See Dodrill v. Shalala, 12 F.3d

915, 918–19 (9th Cir. 1993). The fact that his account of Hanes’ functional
                                                                           Page 4 of 8
limitations corroborated hers was reason to think that both were telling the truth,

not a germane reason for discrediting his reports. The ALJ concluded in the

alternative that, even if the husband’s statements were credited, they established

only that Hanes engaged in daily living activities that indicated she could engage in

light work. But those activities were consistent with her claims of disabling pain,

so her husband’s statements didn’t support the ALJ’s conclusion that Hanes was

able to work.

      Finally, the ALJ erred in weighing the medical evidence. He improperly

discounted the opinions of Hanes’ treating physicians, both of whom assessed

Hanes as having functional limitations incompatible with full-time work. Instead,

the ALJ credited the opinions of an examining physician and a non-examining

physician, both of whom found that Hanes’ impairments didn’t preclude her from

engaging in light work. The ALJ failed to provide the “specific and legitimate”

reasons required by our case law to support that decision. See Garrison, 759 F.3d

at 1012.

      Hanes’ primary care physician, Dr. Hawkins, reported that Hanes had been

diagnosed with fibromyalgia, bipolar disorder, and degenerative disc disease,

which severely limited her physical functioning. He also opined that pain,

dizziness, and fatigue limited her ability to sustain normal work and that her
                                                                          Page 5 of 8
medication caused side effects such as impaired judgment and hypersomnolence.

The ALJ rejected that opinion on the grounds that it was (1) “not supported by

objective evidence and . . . inconsistent with the record as a whole”; (2) conclusory

and unsupported by objective clinical or diagnostic findings; and (3) inconsistent

with the finding that Hanes pursued only conservative treatment and was cleared to

attend an exercise class.

      Again, none of those reasons hold up. The first is both meaningless

boilerplate and contrary to the record, which contains objective evidence of lower-

back disorders, multiple diagnoses of fibromyalgia supported by positive “tender

point” tests, and Hanes’ own testimony. Although the second rationale might have

been valid had Dr. Hawkins supplied only a check-the-box form, see Molina v.

Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), his opinion was instead supported by

extensive treatment notes, including those of the specialists to whom he referred

her. The ALJ therefore erred by discounting Dr. Hawkins’ opinion on this basis.

See Garrison, 759 F.3d at 1014 n.17. The third rationale cannot stand because, as

discussed above, Hanes’ treatment was anything but “conservative.” Nor does the

record support the ALJ’s conclusion that Hanes’ participation in a light aerobic

exercise program was inconsistent with Dr. Hawkins’ assessment that she couldn’t

stand or walk for more than two hours a day or lift more than ten pounds.
                                                                            Page 6 of 8
      Dr. Peña, who worked in Dr. Hawkins’ office, assessed Hanes as having

similar limitations. The ALJ’s reasons for discounting Dr. Peña’s opinion tracked

those for discounting Dr. Hawkins’ opinion and were similarly faulty. Moreover,

the ALJ compounded these errors by discounting Peña’s opinion on the erroneous

ground that Peña “precluded the claimant from driving, yet the claimant drives.”

Hanes testified that, although she has a driver’s license, she drives just once a

month and has “problems” doing so because her medications make her “real

foggy.” That perhaps supplied reason to think she shouldn’t be behind the wheel,

but it is not a valid basis for discounting her treating physician’s opinion. The ALJ

also discounted Peña’s opinion because there was no “objective evidence” that he

actually examined her, but Hanes testified at the hearing that Peña gave her a

physical exam when he completed his statement. That testimony must be credited

because the ALJ found Hanes “less than fully credible” only in describing the

severity and limiting effects of her pain and depression.

      Instead of heeding Hanes’ treating physicians, the ALJ credited the opinion

of an examining physician, Dr. Cunningham, who opined that she had moderate

functional limitations that didn’t preclude her from working. The ALJ gave three

reasons for giving “great weight” to Dr. Cunningham’s opinion: (1) Dr.

Cunningham found functional limitations that were “essentially the same” as those
                                                                            Page 7 of 8
of the ALJ’s own residual functional capacity (RFC) assessment; (2) Dr.

Cunningham personally observed and examined Hanes; and (3) Dr. Cunningham’s

“findings upon examination are consistent with the findings in the record.” The

first rationale was circular. Because the ALJ purported to base his RFC assessment

on the medical evidence, consistency with that assessment wasn’t a legitimate

reason, grounded in substantial evidence, for crediting or discrediting the medical

evidence. As for the second rationale, the fact that Dr. Cunningham personally

observed and examined Hanes once was not a legitimate reason to credit his

opinion over those of her treating physicians, who personally observed and

examined her numerous times. The third rationale was mere boilerplate, not a

specific, substantive basis for crediting Dr. Cunningham’s opinion over those of

the two treating physicians. See Garrison, 759 F.3d at 1012–13.

      The ALJ also gave significant weight to the opinion of a non-examining

physician (apparently Dr. Fujikami), who reviewed Hanes’ medical records and

concluded that she retained the ability to do light work. It’s settled that a non-

examining physician’s opinion alone is not substantial evidence that justifies the

rejection of a treating or examining physician’s opinion. See Lester v. Chater, 81

F.3d 821, 831 (9th Cir. 1995). The ALJ gave significant weight to this opinion

“[f]or the same reasons” he credited Dr. Cunningham’s, but none of those reasons
                                                                          Page 8 of 8
were legitimate, and the second was particularly inapt as a reason for crediting the

opinion of a non-examining physician. The ALJ’s only other reason for crediting

the non-examining physician’s opinion was simply that it was “consistent with the

objective evidence of record.” Such boilerplate is not a specific and legitimate

reason for crediting a non-examining physician’s opinion over the opinions of the

treating physicians.

      In sum, the ALJ failed to offer adequate reasons for discrediting Hanes’

testimony and her husband’s reports, or for discounting her treating physicians’

opinions regarding her functional limitations. If we credit the improperly

discredited evidence as true, see Benecke v. Barnhart, 379 F.3d 587, 593–96 (9th

Cir. 2004), the record compels the conclusion that Hanes is disabled. I would

therefore reverse and remand with instructions to award benefits.
