                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 03 2010

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




                            FOR THE NINTH CIRCUIT



TIMOTHY T. EDLER,                                No. 09-35821

              Plaintiff - Appellant,             D.C. No. 4:08-cv-00084-SEH-
                                                 RKS
  v.

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

              Defendant - Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                             Submitted July 15, 2010**
                               Seattle, Washington

Before: REINHARDT, GRABER and PAEZ, Circuit Judges.

       Timothy T. Edler appeals from the district court's order affirming the

Commissioner's decision to deny him social security disability benefits. Edler

argues, inter alia, that the ALJ erred in discounting both his subjective testimony

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
regarding the crippling pain he experienced due to his regular, indeed weeµly,

headaches, and the opinion of a treating physician that he faces 'marµed' to

'extreme' limitations due to his bipolar disorder. We agree on both counts and

accordingly reverse and remand to the district court for an award of benefits.

      During his hearing, Edler testified that he suffered from debilitating

headaches on a weeµly basis. If this testimony was true, given Edler's other

undisputed disabilities he would be entitled to benefits, for reasons explained

below. Where, as here, there is no dispute as to the claimant's underlying physical

impairments,1 to reject a claimant's subjective testimony as to pain an ALJ must

provide 'clear and convincing reasons,' Carmicµle v. Comm'r Soc. Sec. Admin.,

533 F.3d 1155, 1160 (9th Cir. 2008), that rest on findings 'sufficiently specific to

allow a reviewing court to conclude the adjudicator rejected the claimant's

testimony on permissible grounds.' Bunnell v. Sullivan, 947 F.2d 341, 345 (9th

Cir. 1991).


      1
        Edler contended he was disabled due to necµ pain, dizziness, and balance
difficulties brought about by brain surgery, headaches, numbness of his
extremities, and psychiatric problems, including depression, anxiety, memory
problems, difficulty concentrating, and anger problems. The ALJ concluded that
Edler's 'medically determinable impairments could reasonably be expected to
produce the alleged symptoms; however, the claimant's statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the [ALJ's residual functional capacity
assessment].'

                                          2
      In addressing Edler's claim that he suffered from chronic headaches that

resulted in disabling pain, the ALJ for the most part recited diagnostic data without

providing the specific findings required by Bunnell.2 The ALJ's only finding

relevant to Edler's headaches was that his subjective testimony was generally

discredited by his daily activities. The daily activities that the ALJ cited included

a short-lived home-based business, a single camping trip resulting in physical

injury, participation in seasonal hunting and fishing with extensive assistance from

his son, checµing e-mail, playing computer games, teaching himself to play the

guitar, watching television, and a weeµly visit to a friend's house. The ALJ also

noted that Edler had occasionally used a Bow-Flex weight machine in his home

until the machine dislocated his right shoulder, prompting him to cease exercising.

The uncontested facts in the record, however, are that: Edler's home-based

business failed quicµly; his occasional hunting was undertaµen from a vehicle and,



      2
        Bunnell held that an ALJ disclaiming a claimant's allegations of severity
'must specifically maµe findings which support this conclusion,' and that '[t]hese
findings, properly supported by the record, must be sufficiently specific to allow a
reviewing court to conclude the adjudicator rejected the claimant's testimony on
permissible grounds.' 947 F.3d at 345. This holding maµes clear that 'findings,'
'conclusion,' and 'record' are distinct concepts. Thus, neither the ALJ's
conclusion that Edler was not credible nor his unelaborated recitation of extensive
sections of the record can meet Bunnell's requirement that the ALJ provide specific
findings that justify his rejection of Edler's testimony.


                                           3
as noted, required extensive physical assistance from his son. Moreover, his

efforts to exercise led to the aggravation of a chronic injury that was among the

bases for his disability claim. Neither these activities nor any of the others

mentioned by the ALJ evidence physical abilities transferable to a worµ setting, as

is required for daily activities that may discredit a claimant's subjective testimony.

See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989)). In addition, the fact that a claimant checµs his e-

mail, plays computer games, watches television, learns to play the guitar, and visits

a friend once a weeµ could in no way lead to a reasonable conclusion that he does

not suffer debilitating headaches on an average of one day a weeµ. In sum, the

ALJ failed to maµe specific findings that support clear and convincing reasons that

would warrant rejecting Edler's testimony regarding his frequent debilitating

headaches. Accordingly, Edler's headaches should have been reflected in the

ALJ's assessment of his residual functional capacity.

      The vocational expert testified that Edler would be unable to find worµ in

the national economy if, in addition to the impairments recognized by the ALJ's

residual functional capacity assessment, he 'would need more than the two 15

minute breaµs normally allowed during a worµ shift and/or more than the 30 to 60

minute breaµ normally allowed once per shift . . . [a]nd/or . . . [need] to miss more


                                           4
than two worµ days in a typical worµ month.' Had the ALJ credited Edler's

testimony that he suffered from weeµly, debilitating headaches, he would have

been compelled to conclude that Edler could not obtain worµ in the national

economy. Thus, we remand for an award of benefits. See 20 C.F.R. yy

404.1520(g), 404.1512(g).

      A second basis for reversing and remanding is the ALJ's improper rejection

of the opinion of Edler's treating physician, who concluded that Edler's bipolar

disorder entailed 'marµed' or 'extreme' limitations on Edler's ability to worµ. A

treating physician's opinion is generally due 'controlling weight,' 20 C.F.R. y

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). The ALJ's rejection of the opinion of Edler's treating physician relied on

selective citations to periodic improvements in Edler's treatment record that are

fully consistent with Edler's Bipolar I disorder, a disease that is, by definition,

episodic.3 See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (stating that an

appellate court reviewing an ALJ's conclusions 'must consider the entire record as


      3
        See National Institute of Mental Health, Bipolar Disorder 1 (2009) ('People
with bipolar disorder experience unusually intense emotional states that occur in
distinct periods called 'mood episodes.'').

                                            5
a whole and may not affirm simply by isolating a specific quantum of supporting

evidence.') (citation and internal quotations omitted). Moreover, the ALJ

impermissibly relied on the testimony of a non-treating physician who differed

from Dr. Nagy only as to his conclusions and did not 'rel[y] on independent

clinical findings.' Miller v. Hecµler, 770 F.2d 845, 849 (9th Cir. 1985); see also

Murray v. Hecµler, 722 F.2d 499, 501 (9th Cir. 1983). The ALJ failed to grant

controlling weight to the treating physician's opinion, and this failure affected the

ALJ's analysis with regard to the extent to which Edler's mental limitations would

affect his ability to obtain and retain worµ. In light of the vocational expert's

testimony, the failure to credit Edler's mental limitations in accordance with his

treating physician's testimony provides an independent basis for reversal. We

reverse and remand for an award of benefits.




REVERSED and REMANDED




                                           6
                                                                            FILED
Edler v. Astrue, No. 09-35821                                                AUG 03 2010

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




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

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

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

review).

      The administrative law judge (þALJþ) permissibly discounted Dr. Nagy's

assessment of Claimant's limitations. For example, Dr. Nagy made his last

progress note on May 29, 2008, before Claimant ceased taµing the medication that

was suspected of causing his then-increased symptoms. Additionally, some of the

limitations that Dr. Nagy listed were inconsistent with the details contained in his

own treatment records, as well as inconsistent with treatment records of several

other medical providers.

      The ALJ also permissibly found Claimant not to be fully credible. The ALJ

noted several specific ways in which Claimant's subjective complaints were

overstated in relation to objective medical findings and in relation to Claimant's

contemporaneous reports to some of the treating professionals. Moreover, the ALJ

permissibly relied on the fact that Claimant discontinued mental health treatment

for more than a year, suggesting that his mental impairment was not as severe as

alleged. Finally, the ALJ permissibly relied on Claimant's range of daily activities,
including hunting, fishing, learning to play the guitar, lifting weights, and starting

to develop a home-based business, the later economic failure of which does not

detract from the relevance to credibility of the worµ activity itself, in which

Claimant engaged for about four hours per day for about six months.




                                           2
