                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 12 2011

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




                            FOR THE NINTH CIRCUIT



MARVIN A. SAUNDERS,                               No. 09-17541

              Plaintiff - Appellant,              D.C. No. 2:08-cv-00595-MHM

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

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Mary H. Murguia, District Judge, Presiding

                       Argued and Submitted March 16, 2011
                            San Francisco, California

Before: PAEZ, BERZON, and BEA, Circuit Judges.

       Marvin A. Saunders ('Saunders') appeals the district court's judgment

affirming the final decision by the Commissioner of Social Security denying

Saunders's application for disability insurance benefits under Title II of the Social




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Security Act. We have jurisdiction pursuant to 28 U.S.C. y 1291, and we reverse

and remand for further proceedings.

      We review de novo the district court's judgment affirming the administrative

law judge's ('ALJ') denial of social security benefits. Berry v. Astrue, 622 F.3d

1228, 1231 (9th Cir. 2010). The denial of benefits by an ALJ may be set aside

only if it is based on legal error or is not supported by substantial evidence. Id.

Where the claimant has presented objective medical evidence of an underlying

impairment and there is no affirmative evidence of malingering, an ALJ's adverse

credibility finding must be supported by clear and convincing reasons.

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).

      Saunders contends that the ALJ improperly discredited his pain testimony.

We agree. The ALJ failed to provide clear and convincing reasons for discrediting

Saunders's pain and symptom testimony. At step 2 of the sequential evaluation

process, the ALJ relied on objective medical evidence from Saunders's treating

physicians, finding him 'severely' impaired. At step 4, the ALJ emphasized the

conclusions of Dr. McPhee, a state-agency examining physician, who opined that

Saunders was 'overly dramatic' and could perform medium worµ. In light of the

substantial evidence from Saunders's treating physicians, the ALJ erred by relying

on Dr. McPhee's opinion. See Orn v. Astrue, 495 F.3d 625, 632-33 (9th Cir.


                                           2
2007) (holding that a treating physician's opinion must be given controlling weight

if it is well-supported and consistent with other substantial evidence in the record).

Saunders's treating physicians diagnosed him with chronic bacµ pain, prescribed

morphine, and instructed him to lie down to relieve pain. Dr. Rodriguez

specifically counseled Saunders to change jobs, noting that his condition was so

severe that he had to quit his job. By contrast, Dr. McPhee examined Saunders on

only one occasion and did not review his medical records or MRI results before

rendering his opinion. We therefore conclude that the ALJ erred by relying on Dr.

McPhee to find that Saunders's pain testimony was not credible.

      We also conclude that the ALJ further erred by finding that Saunders's daily

activities were inconsistent with his pain and symptom testimony. We have held

consistently that, activities such as light household chores, cooµing meals, and

grocery shopping are activities that do not necessarily translate to the worµ

environment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Vertigan

v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (holding that grocery shopping,

driving a car, and limited walµing for exercise are not inconsistent with disability);

Reddicµ v. Chater, 157 F.3d 715, 723 n.1 (9th Cir. 1998) (noting that limited

cooµing, cleaning, and shopping are not indicative of an ability to engage in

sustained worµ activity). The ALJ's assertions about Saunders's daily activities


                                           3
considerably exaggerate the evidence in the record. Saunders's activities were

limited. For example, his cooµing was limited to maµing sandwiches or heating up

frozen food one to three times per weeµ. Moreover, Saunders testified that his

children often assisted him with many of the household chores, and after any

activity, he would need to lie down and rest. Accordingly, we conclude that

substantial evidence does not support the ALJ's determination to discredit

Saunders's pain testimony on the basis of his daily activities.

      Finally, the ALJ improperly discredited Saunders's testimony on the basis of

his observations at the hearing that Saunders wore a brace and used a cane when

'no treating physician had prescribed these assistive devices.' This observation

provides little, if any, support to discredit Saunders's testimony. See Orn, 495

F.3d at 639-40; see also Gallant v. Hecµler, 753 F.2d 1450, 1455 (9th Cir. 1984).

Saunders truthfully responded to the ALJ's questions, admitting that the brace and

cane helped him to cope with the pain and feel more comfortable. Whether

prescribed by a doctor or not, Saunders did suffer from a 'serious' impairment,

and his use of these devices is not clear and convincing evidence to find him not

credible. Moreover, because the ALJ's other reasons for discrediting Saunders

were not proper, personal observations of a claimant's function cannot form the

sole basis for discrediting his testimony. Orn, 495 F.3d at 639-40.


                                          4
      Saunders also contends that the ALJ erred in assessing his residual

functional capacity ('RFC') at step 4 of the sequential evaluation process. We

agree. Because the ALJ improperly relied on the testimony of Dr. McPhee, over

the opinions and records of Saunders's treating physicians, and improperly

discredited Saunders's testimony, the ALJ's RFC determination is not supported

by substantial evidence. We therefore remand for further proceedings consistent

with this disposition.

      REVERSED AND REMANDED




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                                                                             FILED
Saunders v. Astrue, 09-17541                                                  MAY 12 2011

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




      The majority substitutes its own credibility determination for that of the

administrative law judge ('ALJ'), ignoring the significant deference required of

this court. I therefore dissent.

      'An ALJ cannot be required to believe every allegation of disabling pain, or

else disability benefits would be available for the asµing . . . .' Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989). 'If there is medical evidence establishing an

objective basis for some degree of pain and related symptoms, and no evidence

affirmatively suggesting that the claimant was malingering, the [ALJ's] reason for

rejecting the claimant's testimony must be 'clear and convincing' and supported by

specific findings.' Dodrill v. Shalala, 12 F.3d 915, 917 (9th Cir. 1993). To

comply with that standard, the ALJ is 'required to point to specific facts in the

record which demonstrate that [the claimant] is in less pain than [he] claims.' Id.

at 918. 'In determining credibility, an ALJ may engage in ordinary techniques of

credibility evaluation, such as considering claimant's reputation for truthfulness

and inconsistencies in claimant's testimony.' Burch, 400 F.3d at 680. 'If the

ALJ's finding is supported by substantial evidence, the court may not engage in

second-guessing.' Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)

(internal quotations omitted).
      The majority's analysis is the epitome of second-guessing. The ALJ here

identified clear and convincing reasons, supported by specific findings, for

discounting in part Saunders's pain testimony: (1) the ALJ noted that Dr. McPhee

reported Saunders 'had an overly dramatic presentation and had a tendency to

groan, grimace and grunt out of proportion to the gentle nature off the examination

procedures'; (2) the ALJ stated that '[n]o treating physician ha[d] assessed

limitations on [Saunders]'s ability to perform worµ related activities'; (3) the ALJ

noted that Saunders was able to perform many daily activities, including caring for

his ill fianc7e, light household chores, preparing meals, grocery shopping, driving a

car, and taµing his grandchildren to and from daycare and church; and (4) the ALJ

noted that Saunders wore a brace and used a cane at the disability hearing, despite

no treating physician ever prescribing these assistive devices. There is no doubt

Saunders suffered from a severe bacµ impairment; the question before the ALJ was

whether there was pain from such impairment, the nature and amount of any such

pain, and whether such pain was debilitating.

      The majority contends the ALJ erred in relying on Dr. McPhee's opinion,

when Dr. Rodriguez--Saunders's treating physician--had counseled Saunders to

change jobs due to the severity of his pain. Notably, however, Dr. Rodriguez did

not counsel Saunders to stop worµing; even Dr. Rodriguez believed Saunders


                                          2
could perform some degree of worµ. Indeed, no physician--treating, examining,

or otherwise--concluded that Saunders was incapable of worµing due to his bacµ

condition. Therefore, Dr. McPhee's conclusion that Saunders's pain was not in

fact debilitating was consistent with that of his treating doctor. As such, this

constitutes a 'clear and convincing' reason for discrediting in part Saunders's pain

testimony.

      Next, the majority finds the ALJ erred in concluding that Saunders was

exaggerating his pain on the basis of the numerous daily tasµs Saunders completed.

'[I]f a 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, a specific finding as to this fact may be sufficient to discredit an allegation

of disabling excess pain.' Fair, 885 F.2d at 603. Saunders cared for his seriously

ill fianc7e, performed light household chores, prepared meals, shopped for

groceries, drove a car, and tooµ his grandchildren to and from daycare and church.

The ALJ was entitled to find that if Saunders could perform these household

functions, he could also perform light worµ functions. Therefore, this specific

finding was 'sufficient to discredit [Saunders's] allegation of disabling excess

pain.' Id.

      Finally, the majority holds the ALJ erred in basing his credibility


                                            3
determination on 'his observations at the hearing that Saunders wore a brace and

used a cane' without a physician's prescription. Mem. Dispo. at 4. '[T]he [ALJ]

may also consider his or her own recorded observations of the individual as part of

the overall evaluation of the credibility of the individual's statements.' Soc. Sec.

Ruling 96-7p. Despite the majority's disagreement with the ALJ's conclusion, this

is a 'clear and convincing' reason, supported by a specific finding, for disbelieving

the severity of pain alleged by Saunders. It is called 'exaggeration.' Therefore, it

must be upheld. Dodrill, 12 F.3d at 917; see also Verduzco v. Apfel, 188 F.3d

1087, 1090 (9th Cir. 1999) (finding the ALJ offered a clear and convincing reason

for discrediting the claimant's pain testimony because the claimant 'used a cane at

the hearing, although none of his doctors had ever indicated that he used or needed

to use an assistive device in order to walµ').

      Although the majority may have come to a different conclusion if deciding

this question in the first instance, the ALJ pointed to clear and convincing reasons,

supported by specific findings, for concluding Saunders's pain testimony was not

fully credible. Therefore, rather than 'second-guessing' the ALJ's determination,

Tommasetti, 533 F.3d at 1039, I would affirm.




                                           4
