                                                                           FILED
                           NOT FOR PUBLICATION                             APR 25 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LEWIS POTTER,                                    No. 12-35362

              Plaintiff - Appellant,             D.C. No. 6:10-cv-01527-SI

  v.                                             MEMORANDUM*

COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                       Argued and Submitted March 3, 2014
                                Portland, Oregon

Before: TROTT and W. FLETCHER, Circuit Judges, and BLOCK, 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 Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
      Lewis Potter appeals a judgment affirming the denial of his application for

disability insurance benefits. We assume familiarity with the facts of the case and

the issues on appeal.

      The administrative law judge (“ALJ”) found that Potter suffered from a

severe impairment: costochondritis (an inflammation of the cartilage between the

ribs). He further found, however, that Potter was not disabled because he had the

residual functional capacity (“RFC”) to perform “light exertional work except [he]

can lift and carry up to 10 pounds occasionally and frequently with the right upper

extremity and up to 20 pounds occasionally and frequently with the left upper

extremity,” and could, with that RFC, perform jobs existing in significant numbers

in the national economy.

      In determining Potter’s RFC, the ALJ credited the assessment of Dr. Joseph

Jensen, who testified as a medical expert, over those of Dr. Heather Kahn, Potter’s

treating physician, Dr. Gregory Grunwald, a consultative examining physician, and

Dr. Scott Pritchard, a consultative non-examining physician. His stated reason for

doing so was that Dr. Jensen’s opinion was “well supported by medically

acceptable clinical and laboratory diagnostic techniques,” while those of the other

physicians were not.




                                          2
      To the extent that the ALJ discredited the opinions of Drs. Kahn, Grunwald,

and Pritchard based on a lack of objective evidence of the severity of Potter’s pain,

this was error None of the physicians’ RFC assessments was supported by

objective evidence because, as the Commissioner’s own regulations recognize,

pain is “subjective and difficult to quantify.” 20 C.F.R. § 404.1529(c)(3). In

Benecke v. Barnhart, 379 F.3d 587 (9th Cir. 2004), we held that an ALJ cannot

require objective evidence “for a disease that eludes such measurement.” Id. at 594

(quoting Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003)). Although

the disease at issue in Benecke was fibromyalgia, the disabling symptom—pain—is

the same.

      Because the disabling effect of pain cannot be confirmed by objective

medical evidence, Potter’s RFC depends on his subjective complaints. Evaluating

subjective complaints of pain is a two-step process. “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)).

At the second step, the ALJ must assess the credibility of the claimant’s subjective

complaints; appropriate considerations include



                                          3
      (1) ordinary techniques of credibility evaluation, such as the
      claimant’s reputation for lying, prior inconsistent statements
      concerning the symptoms, and other testimony by the claimant that
      appears less than candid; (2) unexplained or inadequately explained
      failure to seek treatment or to follow a prescribed course of treatment;
      and (3) the claimant’s daily activities.

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). “[If] 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, 80 F.3d at 1281).

      It is undisputed that costochondritis can reasonably be expected to produce

pain, and that Potter’s testimony about his level of pain would, if believed, rule out

any level of work. However, the ALJ reasoned that Potter’s activities “including

painting and attending a boy scout camp with full physician clearance . . . are

inconsistent with a disabling level of pain.” Potter’s “painting” was, however, an

attempt to paint that resulted in a trip to the emergency room. Regarding the boy

scout camp, the ALJ offered no reason for disbelieving Potter’s testimony that he

did not hike and spent most of the trip resting in his tent.

      The ALJ made repeated references to a nerve-block procedure that,

according to Dr. Grunwald, would restore Potter to “100% mobility.” Potter

testified that Dr. Kahn had discussed the procedure with him, but that he was afraid

that it might worsen his condition or prevent him from noticing a heart attack.


                                            4
According to Potter, Dr. Kahn did not make a recommendation either for or against

the procedure.

      As noted, “unexplained or inadequately explained failure to seek treatment

or to follow a prescribed course of treatment” is an appropriate credibility

consideration. Smolen, 80 F.3d at 1284. Since 2002, however, Potter has sought

numerous treatments for his pain. Most did not work at all, and those that did—

Vicodin and lidocaine patches—provided only some relief. Potter paid for at least

a portion of the lidocaine patches out of his own pocket.

      Nevertheless, we are troubled by Potter’s unwillingness to pursue the one

treatment that might completely alleviate his pain. Problematically, the ALJ did

not clearly tie Potter’s failure to pursue the nerve-block procedure to his

credibility. We conclude that the appropriate course of action in the circumstances

is to remand for a reassessment of Potter’s credibility. On remand, the ALJ should

explain the relationship between Potter’s credibility and his refusal to pursue the

nerve-block procedure. In that regard, the ALJ should develop the record

regarding the nature of the procedure and its benefits and risks. He should also

evaluate Potter’s concerns about the procedure and give due consideration to the

treatments Potter has sought.

      The parties shall bear their own costs on appeal.

      VACATED AND REMANDED.

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