                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 18 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ANNA MARIE PHILLIPS,                             No. 13-15066

              Petitioner - Appellant,            D.C. No. 1:11-cv-01928-GSA

  v.
                                                 MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Gary S. Austin, Magistrate Judge, Presiding

                     Argued and Submitted February 12, 2015
                             San Francisco California

Before: TASHIMA, McKEOWN, and CLIFTON, Circuit Judges.

       Anna Marie Phillips appeals the district court’s judgment affirming the

Commissioner’s denial of her application for disability insurance benefits. Phillips

argues that the Administrative Law Judge inappropriately considered evidence of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
her addiction to prescription drugs in light of Social Security Ruling (“SSR”)

13-2p, erred in discounting the opinion of treating physician Dr. Dumitru, and

further erred in discrediting Phillips’s pain testimony. We remand to the district

court with instructions to remand to the Social Security Administration for further

consideration.

      SSR 13-2p provides that substance use disorders do not include “[a]ddiction

to, or use of, prescription medications taken as prescribed.” Although SSR 13-2p

was issued after Phillips was denied benefits, the Commissioner took the position

before us that it did not represent a change in the law and that the finding that

Phillips had abused drugs was based on her failure to take prescription medication

as prescribed.

      The record does not support that conclusion. The ALJ’s decision placed

“greatest weight” on the opinion of Dr. Temple, including his testimony that

Phillips was “using more medication than she really needs.” That did not

demonstrate that she used more medication than she was prescribed, however. The

ALJ noted that “claimant’s doctors at Kaiser have prescribed her the pain

medications.”

      The decision did refer to “drug seeking behavior” and the possibility that

Phillips obtained a greater quantity of medication than prescribed by claiming that


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the medication was stolen. Substantial evidence supported the ALJ’s

determination that on multiple occasions, Phillips requested additional

prescriptions because her medication had been “stolen” or “lost.” She also failed

to attend pain management programs to which her doctors had referred her.

      But neither the ALJ’s decision nor the testimony of Dr. Temple upon which

it relied distinguished between (a) medications taken in excess of the amounts

prescribed by Phillips’s doctors and (b) medications taken as prescribed that Dr.

Temple believed were unnecessary and should not have been prescribed. The latter

category would not necessarily indicate a substance use disorder as defined by the

Commissioner. Similarly, the ALJ attributed the side effects that limited Phillips

to less than sedentary work to “taking the excessive quantities of medication, levels

that Dr. Temple feels is unnecessary.” But that Dr. Temple believed the

medications were unnecessary did not establish that they had not been taken as

prescribed.

      The ALJ found that with “substance abuse,” Phillips was disabled. But the

decision did not state a finding as to whether Phillips would have been disabled if

she limited her use to medications taken as prescribed. Neither the precise basis

for the ALJ’s finding nor the impact of SSR 13-2p in this context is clear, and

those questions should be addressed by the agency in the first instance. On


                                          3
remand, the agency should determine whether Phillips’s excessive use constituted

evidence of a substance use disorder.

      The ALJ inadequately articulated the basis for dismissing the opinion of the

treating physician, Dr. Dumitru. Because Dr. Dumitru’s opinion was contradicted,

the ALJ had to provide “specific and legitimate reasons” based on substantial

evidence before rejecting it. See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).

The ALJ explained that Dr. Dumitru’s opinion was inconsistent with the record

and contradicted by the opinions of Dr. Temple and the State Agency, as well as a

medical note by Dr. Sweeney. The ALJ later discussed and noted his reliance on

Dr. Temple’s opinion and the note by Dr. Sweeney, but left his specific reasons for

discounting Dr. Dumitru’s opinion to be inferred. On remand, the ALJ should

reconsider his dismissal of Dr. Dumitru’s opinion.

      Substantial evidence supported the ALJ’s credibility determination regarding

Phillips. The ALJ provided clear and convincing reasons for discrediting Phillips’s

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

In making this determination, the ALJ properly considered inconsistencies in

Phillips’s testimony as well as inconsistencies between her testimony and her daily

activities, work post disability onset, and the objective medical record. See Smolen




                                         4
v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); Burch v. Barnhart, 400 F.3d 676,

681 (9th Cir. 2005).

      Costs are awarded to appellant Phillips.

      VACATED and REMANDED.




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