                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 04 2010

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

RHONDA L. O’NEAL,                                No. 09-35989

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01696-JLR

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

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
                    James L. Robart, District Judge, Presiding

                        Argued and Submitted July 15, 2010
                               Seattle, Washington

Before: REINHARDT, GRABER and PAEZ, Circuit Judges.



       Rhonda O’Neal appeals the district court’s decision affirming the Social

Security Commissioner’s denial of social security benefits. We reverse and

remand.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      O’Neal raises four challenges to the ALJ’s decision. First, she contends that

the ALJ erred by disregarding the opinions of four treating physicians regarding

her exertional limitations, and crediting instead the opinions of a reviewing

physician and a medical expert. Second, she contends that the ALJ erred by

disregarding her daughter’s testimony, which corroborated the opinions of her

treating physicians as to her exertional limitations. Third, she argues that the ALJ

improperly evaluated the listings. Finally, she argues that the ALJ erred by failing

to call a vocational expert.

      We agree with O’Neal as to issues one, two, and four. Our decision with

respect to the first two issues dictates the conclusion that O’Neal’s exertional

limitations rendered her disabled as of her 50th birthday. We thus hold that she is

entitled to benefits as of that date. Our decision on the fourth issue requires a

remand to determine whether the combination of O’Neal’s exertional and

nonexertional limitations rendered her disabled and entitled her to benefits at any

point prior to her 50th birthday.1 In making that determination, the ALJ will first

be required to reevaluate the listings in light of our holdings and determine

whether, prior to her 50th birthday, O’Neal’s impairments met or equaled a listing.

      1
       The date at which O’Neal’s disability began may determine not only what
period her benefits will cover, but also what type of benefits she will receive. She
applied for both disability insurance benefits and supplemental security income.

                                    Page 2 of 11
Accordingly we do not reach the third issue regarding whether he erred in

evaluating the listings previously. Should the ALJ again determine that O’Neal did

not meet or equal a listing, he will then be required to call a vocational expert to

determine whether, in light of the combination of O’Neal’s exertional and non-

exertional limitations as well as her age, education, and past work experience, there

existed significant jobs in the national economy that she could perform at any point

between the alleged onset of her disability and her 50th birthday.



                               I. Exertional limitations

                           A. Treating physician opinions

      Four treating physicians (Drs. Rashid, Smith, Powell, and Murray) classified

O’Neal’s work level as “sedentary” or “severely limited,” meaning that she is

unable to walk for more than brief periods, if at all, and can carry no more than ten

pounds. The ALJ nonetheless concluded that she is capable of walking or sitting

for six hours a day and lifting twenty pounds occasionally. A treating physician’s

opinion is generally due “controlling weight,” 20 C.F.R. § 404.1527(d)(2), and

where, as here, it is contradicted by another doctor, it can be rejected only if the

ALJ provides “specific and legitimate reasons supported by substantial evidence in

the record.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). We conclude that


                                     Page 3 of 11
none of the ALJ’s reasons for rejecting the treating physicians’ assessment of

O’Neal’s ability meet that standard.

      The ALJ’s primary reason for rejecting the treating physicians’ opinions in

favor of the reviewing physicians’ was that O’Neal’s failure to take her

medications as prescribed and her “addictive behavior,” as evidenced by her

repeated trips to the emergency room to obtain pain medication for headaches,

undermined her credibility. Where medical reports are based solely on a

claimant’s self-reporting, it may be reasonable for an ALJ who finds the claimant

not credible to also question the reliability of the medical reports. See Brawner v.

Sec. of Health & Human Serv’s, 839 F.2d 432, 434 (9th Cir. 1988). There is no

indication in this record, however, that the treating physicians’ diagnoses of

hypertension and renal insufficiency were based solely, if at all, on O’Neal’s own

reports. Rather, the diagnoses were based on objective medical tests. Nor is there

evidence that the treating physicians’ assessments of the impact O’Neal’s

hypertension and renal insufficiency would have on her ability to exert herself

were based solely on O’Neal’s own reports. Rather they were based, at least in

substantial part, on the same objective evidence that supported the diagnoses. The

ALJ’s finding that O’Neal lacked credibility thus provided no reason to question

the reliability of her physicians’ assessments.


                                    Page 4 of 11
      Moreover, the ALJ’s reasons for doubting O’Neal’s credibility are not

“specific and legitimate reasons supported by substantial evidence in the record.”

Lester, 81 F.3d at 830. The record does not indicate that O’Neal received pain

medication by complaining of hypertension and renal insufficiency; rather, the pain

medication was prescribed in response to her complaints of persistent headaches.2

Thus, an addiction to pain medication would not have provided her with an

incentive to exaggerate her symptoms of hypertension and renal insufficiency,

even were such exaggeration possible. And the record reveals two reasons for

O’Neal’s failure to comply with her physicians’ treatment regimen that have

nothing to do with her credibility. First, as found by Dr. Ankuta, an examining

psychologist whose opinion the ALJ credited, O’Neal has “difficulty recalling even

simple instructions.” Her treatment regimen, which includes up to 16 different

medications, is fairly described as complex, and thus is likely beyond her capacity

to manage. Second, O’Neal testified that she sometimes goes without her

medications because she cannot pay for them. Under these circumstances,

O’Neal’s failure to comply with prescribed treatment does not provide substantial

evidence for questioning the credibility of her accounts of her symptoms. See



      2
       The ALJ found that O’Neal’s headaches were not a “severe impairment,”
and she does not challenge that finding.

                                   Page 5 of 11
Regennitter v. Soc. Sec. Comm’r, 166 F.3d 1294, 1297 (9th Cir. 1999) (“[W]e have

proscribed the rejection of a claimant’s complaints for lack of treatment when the

record establishes that the claimant could not afford it.”).

      The ALJ’s other reason for rejecting the treating physicians’ opinions was

that he found them to be inconsistent with O’Neal’s “wide range of activities.”3

Those activities were: “spen[ding] an hour getting her hair and nails done,” going

on a week-long beach vacation with her sisters, and caring for her daughter’s

children. The only one of these activities that might possibly require any physical

exertion beyond sitting, walking, or standing for “brief periods” and lifting 10

pounds maximum is caring for children. It is clear from the record, however, that

O’Neal assumed care of her grandchildren for a brief period due to exigent

circumstances, and there is no evidence regarding the level of care that O’Neal

provided. That a grandmother attempts to care for her grandchildren when

necessity demands is not substantial evidence supporting a finding that, contrary to

the opinion of her treating physicians, she is able to stand, walk or sit for six hours

a day and lift twenty pounds occasionally. Cf. Vertigan v. Halter, 260 F.3d 1044,

      3
       The ALJ also stated that the treating physicians’ opinions were inconsistent
with objective medical evidence. AR 26. The ALJ did not identify the particular
“objective medical evidence” to which he was referring, however. “[C]onclusory
reasons will not justify an ALJ’s rejection of a medical opinion.” Regennitter, 166
F.3d at 1299.

                                     Page 6 of 11
1050 (9th Cir. 2001) (“A patient may do [physical] activities despite pain for

therapeutic reasons, but that does not mean she could concentrate on work despite

the pain or could engage in similar activity for a longer period given the pain

involved.”).

      Because the ALJ’s reasons for rejecting the opinions of O’Neal’s treating

physicians were not specific, legitimate, and supported by substantial evidence, the

treating physicians’ opinions must be credited as a matter of law, Lester, 81 F.3d at

834, and are due controlling weight. 20 C.F.R. § 404.1527(d)(2). We thus

conclude that O’Neal is limited to a sedentary or lower level of work.



                                 B. Lay testimony

      The ALJ also rejected a function report prepared by O’Neal’s daughter on

the ground that it was “inconsistent with [O’Neal’s] wide-range of activities.” For

the reasons discussed above, the “wide-range of activities” referred to by the ALJ

is not relevant to an assessment of O’Neal’s capacity for more than minimal

physical and mental exertion. Because the ALJ failed to provide “germane”

reasons for rejecting O’Neal’s daughter’s report, we credit that report as true. See

Lewis v. Apfel, 236 F.3d 503, 510-12 (9th Cir. 2001). The report provides further

evidence that O’Neal is limited to a sedentary or lower level of work.


                                    Page 7 of 11
                     C. Because she is limited to sedentary work,
             it is clear that O’Neal was disabled as of her 50th birthday

      The conclusion that O’Neal is limited to sedentary work mandates a

determination that she was disabled as of her 50th birthday on January 8, 2008.

That is because the Medical-Vocational Guidelines provide that a 50-54 year old

individual with a high school education, past unskilled work or no transferable

skills, who is limited to sedentary work is disabled. 20 C.F.R. pt. 404, subpt. P,

Rule 201.12 & 201.14. This describes O’Neal as of her 50th birthday.

Accordingly, she is entitled to benefits as of that date. On remand, the ALJ shall

award those benefits.

      Our conclusion that O’Neal is limited to sedentary work does not resolve the

question whether she was disabled prior to her 50th birthday, and was thus entitled

to benefits prior to that date. Under the Guidelines, a woman with O’Neal’s

exertional limits, education, and work experience who is younger than 50 is not

disabled. See 20 C.F.R. pt. 404, subpt. P, Rule 201.27. The Guidelines do not,

however, take into account O’Neal’s non-exertional limitations. Whether the

combination of O’Neal’s exertional and non-exertional limitations rendered her

disabled prior to her 50th birthday is a question the ALJ will be required to answer

on remand.



                                    Page 8 of 11
                                     III. Listings

       If O’Neal’s impairments meet or equal one of the listed impairments, she is

considered disabled without consideration of her age, education, or work

experience. 20 C.F.R. §§ 404.1520(d), 416.920(d). She would accordingly be

entitled to benefits as of the date her impairments began. In this case, it is not clear

whether the ALJ would have come to the same conclusion regarding whether

O’Neal met or equaled the listings had he properly credited the opinions of her

treating physicians and her daughter. On remand, the ALJ should reevaluate the

listings in light of our decision.



                                 IV. Vocational Expert

       Should the ALJ again conclude that O’Neal’s impairments neither meet nor

equal the listings, he must then consider in light of her residual functional capacity,

age, education, and past work experience whether, prior to her 50th birthday, there

were a significant number of jobs in the national economy that she could perform.

20 C.F.R. §§ 404.1520(f), 416.920(f). Where a claimant’s non-exertional

limitations are “‘sufficiently severe’ so as to significantly limit the range of work

permitted by the claimant’s exertional limitations,” an ALJ may not rely on the

Medical-Vocational Guidelines alone to determine whether there are a significant


                                     Page 9 of 11
number of jobs in the national economy that the claimant can perform, but rather

must call a vocational expert. See Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir.

2007) (quoting Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

      Here, the ALJ credited the opinion of Dr. Ankuta that O’Neal “would have

difficulty recalling even simple instructions at work.” According to the ALJ’s own

decision, the ability to recall simple instructions is one of the “basic mental

demands of . . . unskilled work.” It is apparent, then, that O’Neal’s mental

limitations do “significantly limit the range of work permitted by [her] exertional

limitations.” Hoopai, 499 F.3d at 1075 (internal quotation marks omitted).

Accordingly, the ALJ erred by failing to call a vocational expert.



                                    V. Conclusion

      We hold that the treating physicians’ assessments of O’Neal’s physical

limitations must be credited as a matter of law. In light of those assessments,

O’Neal was disabled as of her 50th birthday, and is entitled to benefits as of that

date. On remand, the ALJ shall award those benefits. He must also reconsider

whether O’Neal was disabled prior to her 50th birthday, and is thus entitled to

benefits prior to that date. In so reconsidering, the ALJ shall credit the treating

physicians’ assessments of her exertional limitations. In light of those


                                    Page 10 of 11
assessments, he shall reconsider whether O’Neal met or equaled a listing. Should

he determine that she did not, he shall then call a vocational expert to testify

regarding the existence of jobs in the national economy that O’Neal could perform

prior to her 50th birthday.



      REVERSED and REMANDED for further proceedings consistent with this
      decision.

      Plaintiff to recover costs on appeal.




                                    Page 11 of 11
                                                                              FILED
O’Neal v. Astrue, No. 09-35989                                                AUG 04 2010

                                                                          MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, dissenting:                                         U.S. COURT OF APPEALS



      I respectfully dissent because, in my view, the Commissioner’s decision

employs the correct legal standard and is supported by substantial evidence. See

Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (describing our standard of

review).

      The administrative law judge ("ALJ") permissibly rejected the most

restrictive of the "check-box" assessments of Claimant’s limitations by her

treating physicians. There were five treating physicians whose conclusions ranged

from functional limitations "not applicable," to capable of sedentary work, to

severe limitations. In that circumstance, the ALJ had to examine the underlying

medical records, and he appropriately relied heavily on (but did not agree entirely

with) the views of a medical expert. The ALJ considered all the evidence and

permissibly weighed it. For the same reason, the ALJ properly evaluated

Claimant’s residual functional capacity.

      The ALJ specifically found that Claimant’s impairments neither meet nor

equal a listed impairment. The ALJ’s opinion gives sufficient reasons for review,

and those reasons find support in the record.

      The ALJ permissibly rejected lay testimony provided by Claimant’s

daughter. The ALJ gave a germane reason, namely, that the daughter’s opinion as
to the level of her mother’s disability was inconsistent with Claimant’s range of

activities.

       The ALJ permissibly discounted Claimant’s reporting of the extent of her

limitations, relying on its inconsistency with other evidence and Claimant’s

repeated failure to follow recommended medical treatments. The ALJ also noted

Claimant’s range of activities, including driving a car, performing some household

chores, vacationing in the Bahamas, and caring for grandchildren.




                                         2
