                                                                            FILED
                                NOT FOR PUBLICATION                          NOV 20 2012

                                                                         MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



JENNIFER TERAN,                                     No. 11-15666

                  Plaintiff - Appellant,            D.C. No. 1:09-cv-02258-DLB

  v.
                                                    MEMORANDUM *
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

                  Defendant-Appellee.



                       Appeal from the United States District Court
                           for the Eastern District of California
                       Dennis L. Beck, Magistrate Judge, Presiding **

                         Argued and Submitted October 19, 2012
                                San Francisco, California

Before: HAWKINS, N.R. SMITH,*** and MURGUIA, Circuit Judges.




        *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
         **
              Tried by consent before a magistrate judge.
       ***
          Judge N.R. Smith was drawn to replace Judge Betty Binns Fletcher. Judge
Smith has read the briefs, reviewed the record, and listened to the oral arguments that
were held on October 19, 2012.
      Jennifer Teran (“Teran”) appeals the district court’s judgment affirming the

administrative law judge’s (“ALJ”) denial of her Social Security disability claim. We

reverse and remand.

      The ALJ concluded that Teran suffered from a number of severe impairments,

including fibromyalgia. Nonetheless, he found Teran’s testimony regarding her pain

and symptoms not fully credible and rejected the opinion of Dr. Watrous, Teran’s

treating rheumatologist who diagnosed her fibromyalgia. The ALJ then conducted a

residual functional capacity assessment and concluded that Teran was capable of “the

full range of unskilled sedentary work,” despite her limitations.

      The ALJ failed to give clear and convincing reasons for his adverse credibility

finding. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). Each of the

proffered reasons is flawed, but the ALJ’s emphasis on purported inconsistencies in

Teran’s description of her daily activities is especially troubling. Contrary to the

ALJ’s determination, Teran’s testimony that she can walk for only five minutes before

her back begins to hurt does not conflict with her statements that she goes grocery

shopping with her husband and takes her children to school.

      Even if grocery shopping and taking children to school required more than five

consecutive minutes of walking, of which there is no evidence, Teran did not testify

that she was unable to walk for five minutes, but rather that walking for any longer


                                          2
was painful. Likewise, that Teran can sit comfortably for only five minutes is not

undermined by her testimony that she watches four hours of TV per day. Teran never

indicated that she watches TV sitting down (as opposed to lying down, standing up,

or moving around), and she explicitly stated that she has to take breaks while watching

and does not watch for four hours at a time.

      The ALJ’s own observations of Teran fail to support his adverse credibility

finding. The ALJ found Teran’s testimony that she can sit for only five minutes to be

inconsistent with her behavior at the hearing, during which, as the ALJ describes, “she

was able to sit for 30 minutes and did not shift position until it was pointed out to her

that she had been sitting that long.” This is unsupported by the record. When her

attorney noted that she had been sitting for longer than five minutes, Teran responded

that she was “very uncomfortable” and had been moving around in her chair, an

explanation the ALJ never disputed on the record. She also acknowledged that she

could sit for more than five minutes but explained that doing so was painful.

      The ALJ’s rejection of Dr. Watrous’s opinion is similarly unjustified. “[T]o

reject the opinion of a treating physician that is not contradicted by another doctor, the

ALJ must provide ‘clear and convincing’ reasons.” Hiler v. Astrue, 687 F.3d 1208,

1212 (9th Cir. 2012) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)).

“Even if the treating doctor’s opinion is contradicted by another doctor, the ALJ may


                                            3
not reject this opinion without providing ‘specific and legitimate reasons’ supported

by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.

1998) (citation omitted).1 Even assuming a conflicting opinion, the ALJ failed to base

his rejection of Dr. Watrous’s assessment on specific and legitimate reasons supported

by substantial evidence.

      The ALJ appears to have accepted Dr. Watrous’s fibromyalgia diagnosis but

rejected his opinion as to the functional limitations resulting therefrom because (1) it

was based on Teran’s subjective complaints, and (2) it was inconsistent with Teran’s

behavior at the hearing and her descriptions of her daily activities.

      Dr. Watrous conducted a rheumatological evaluation of Teran, met with Teran

multiple times, and assessed that she had pain in sixteen of the eighteen tender point

sites for fibromyalgia. His partial reliance on Teran’s subjective complaints was an

appropriate component of this evaluation, and the ALJ’s conclusion to the contrary

is incorrect. The ALJ’s finding that Dr. Watrous’s opinion was inconsistent with


      1
        The ALJ does not appear to have based his rejection of Dr. Watrous’s opinion
on the existence of a contradicting opinion, and we are not convinced that there is one.
We note, however, that the ALJ gave substantial weight to the opinion of state agency
physician Dr. Bugg on the basis that it was “more consistent with the claimant’s
reported and observed limitations.” While Dr. Bugg’s ultimate conclusion as to
Teran’s limitations conflicts with that of Dr. Watrous, Dr. Bugg’s evaluation was
based on a primary diagnosis of a broken ankle, and does not appear to account for
fibromyalgia. We question whether this opinion, assessing limitations based on a
different diagnosis, can be considered inconsistent.

                                           4
Teran’s testimony and behavior at the hearing was based on the same flawed

characterization of Teran’s behavior that led to his adverse credibility finding and is

unsupported by the evidence.

      The only rheumatologist who offered an opinion in this case, Dr. Watrous

treated Teran for almost two years. “The opinion of a treating physician is given

deference because ‘he is employed to cure and has a greater opportunity to know and

observe the patient as an individual.’” Morgan v. Comm’r of Soc. Sec. Admin., 169

F.3d 595, 600 (9th Cir. 1999) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th

Cir. 1987)). In failing to defer to Dr. Watrous’s opinion or to reject that opinion with

specific, legitimate reasons supported by substantial evidence, the ALJ erred.

      When proper weight is afforded Teran’s testimony and Dr. Watrous’s opinion,

the vocational expert’s testimony establishes that Teran is unable to work, and it is

clear that a determination of disability is appropriate. Accordingly, we reverse and

remand with instructions to remand to the Commissioner of Social Security for

determination of onset date and award of benefits.

      REVERSED and REMANDED.




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