                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 13 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CARY ANDERSON,                                   No.   18-35541

              Plaintiff-Appellant,               DC No. CV 17-0133 SLG

 v.
                                                 MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Alaska
                    Sharon L. Gleason, District Judge, Presiding

                        Argued and Submitted June 13, 2019
                                Anchorage, Alaska

Before:      TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

      Cary Russell Anderson (“Anderson”) appeals the district court’s judgment

affirming the Commissioner of Social Security’s (the “Commissioner”) denial of

his application for Disability Insurance Benefits and Supplemental Security

Income benefits under Titles II and XVI of the Social Security Act. We review de


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
novo the district court’s decision affirming the denial of benefits, and we may

reverse the decision of the administrative law judge (“ALJ”) where that decision is

based on legal error or where the findings of fact are not supported by substantial

evidence. Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand for further

proceedings.

      We hold that the ALJ committed reversible error in discrediting Anderson’s

subjective testimony. Where, as here, the ALJ has found that the claimant has

“presented objective medical evidence of an underlying impairment which could

reasonably be expected to produce the pain or other symptoms alleged” and there

is no evidence of malingering, “the ALJ can reject the claimant’s testimony about

the severity of [his] symptoms only by offering specific, clear and convincing

reasons for doing so.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)

(quotation marks and citations omitted). Under the specific, clear and convincing

standard, the ALJ must “identify the testimony she found not credible” and “link

that testimony to the particular parts of the record supporting her non-credibility

determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). Here,

the ALJ rejected three portions of Anderson’s testimony as not credible: (1)




                                           2
Anderson’s “pain related to psoriatic arthritis,” (2) Anderson’s “alleged difficulty

using his hands,” and (3) Anderson’s alleged limited mobility.

      1.     The ALJ explained that Anderson’s testimony regarding his severe

pain was not credible because “in [Anderson’s] treatment notes with [Nurse]

Bushnell he frequently describes his pain as controlled on Percocet, and notes he

uses an elliptical, as well as walks.” These reasons for discrediting Anderson’s

pain testimony are neither clear nor convincing. Although Nurse Bushnell’s

treatment records did note that Anderson’s pain was eased when he was on

Percocet, the fact that Percocet eases some of Anderson’s pain does not discount

that he is indeed in serious pain. In fact, treatment records indicate he consistently

complained of pain during his visits, sometimes quite significant pain, despite the

Percocet. Nurse Bushnell, for example, reported that Anderson had “severe

psoriasis” and pain at nearly every visit over the course of several years. Thus,

evidence that Anderson’s pain could, at times, be managed or reduced is not

inconsistent with Anderson’s descriptions of extreme pain.

      Nor is a single medical record noting Anderson’s occasional use of the

elliptical inconsistent with Anderson’s statements about pain, as Anderson does not

assert that he is in extreme pain every minute of every day such that he can never

be active. And, contrary to the ALJ’s determination, Anderson’s treatment records


                                           3
supported Anderson’s testimony regarding his limitations in movement. Nurse

Bushnell noted that Anderson has “joint issues, difficulty walking, movement,

weight bearing.” Dr. Meinhardt similarly noted that Anderson had difficulty

standing and climbing onto the exam table due to generalized joint pain, that

Anderson made “all of his maneuvers quite slowly,” and that Anderson had

difficulty laying down supine and sitting back up due to low back pain. These

observations in treatment notes are consistent across multiple years. Thus, the ALJ

erred in discrediting Anderson’s testimony on his limitations in movement.

      2.     The ALJ’s explanation that Anderson’s “alleged difficulty using his

hands is not fully credible” because “he did not have demonstrated difficulty with

manipulative activities during the record” is also insufficient: it is impermissibly

vague because it does not “link that testimony to the particular parts of the record

supporting [the] non-credibility determination.” Brown-Hunter, 806 F.3d at 494;

see also Tonapetyan v. Halter, 242 F.3d 1144, 1147–48 (9th Cir. 2001) (explaining

that the ALJ may not “reject the claimant’s statements regarding [his] limitations

merely because they are not supported by objective evidence”). It is also not

supported by the record, as multiple of Anderson’s treatment records noted

Anderson’s arthritic hands and hand-related joint pain.




                                           4
      3.     The ALJ’s stated reasoning for discrediting Anderson’s testimony that

he had difficulty walking was also not clear and convincing. The ALJ explained

that Anderson’s testimony was contradicted by Nurse Bushnell’s notes that

Anderson had an “overall normal gait during examinations” and “[Anderson’s]

reported ability to walk and use an elliptical.” This is not a sufficient reason.

Although Nurse Bushnell’s notes do state that Anderson had used an elliptical and

had an “ overall normal” gait, the fact that Anderson is able to walk or exercise

occasionally is not “inconsistent with the pain-related impairments that [Anderson]

described in [his] testimony.” Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir.

2014). “We have repeatedly warned that ALJs must be especially cautious in

concluding that daily activities are inconsistent with [a claimant’s] testimony . . .

because impairments that would unquestionably preclude work and all the

pressures of a workplace environment will often be consistent with doing more

than merely resting in bed all day.” Id.; see also Trevizo v. Berryhill, 871 F.3d.

664, 679 (9th Cir. 2017) (noting that claimant with mobility issues because of

psoriatic plaques on her feet had a normal gait). Further, as explained above, the

treatment notes of Nurse Bushnell, Dr. Meinhardt, and others in fact support

Anderson’s assertion that he had difficulty moving and walking due to joint pain.

Accordingly, the mere fact that Anderson could accomplish a few physical tasks


                                           5
some of the time is not sufficient to discredit Anderson’s testimony that he had

difficulty walking.

                                     •   !    •

      None of the ALJ’s identified reasons for discrediting portions of Anderson’s

testimony is clear and convincing, and the remainder of the ALJ’s discussion of

Anderson’s testimony related to “unspecified conflict[s] between Claimant’s

testimony,” and merely “summarized the medical evidence supporting her [residual

functional capacity] determination.” Brown-Hunter, 806 F.3d at 494 (quotation




                                          6
marks and citation omitted). The ALJ therefore committed legal error in

discrediting Anderson’s testimony.1

      This error was not harmless. Had Anderson’s testimony regarding his

limitations been credited, the ALJ surely could not have concluded that Anderson

was capable of performing most forms of light work—which includes jobs that

“require[] a good deal of walking or standing,” 20 C.F.R. § 404.1567(b). Further,



      1
              The ALJ also suggested that Anderson’s allegations regarding the
extent of his psoriasis were not credible, citing to treatments records indicating
Anderson’s stability on Enbrel and the fact that “there is no evidence of suspicious
lesions in the record.” These reasons are not clear and convincing. The treatment
records consistently indicated that Anderson had significant scaling areas of
psoriasis. These scaling areas frequently covered large portions of his body, were
painful, and would bleed. Further, the treatment records consistently indicated that
although Anderson took Enbrel, it was not as effective as hoped for and often
resulted in intolerable side effects. Lastly, “suspicious lesions” likely referred to
cancerous lesions (e.g., melanoma or other potential skin cancer), which has no
bearing on whether or not Anderson has extensive psoriatic lesions.
        Moreover, the ALJ made no effort to explain why many of the other
limitations claimed by Anderson were not credible. In particular, Anderson
testified and described in his written statement at great length that his daily life and
activities are limited by extensive and regular bleeding caused by his psoriasis.
The ALJ made no attempt to address these limitations or to explain why they
should not be credited. Anderson also testified that he frequently became sick
because the medicines he used to control his psoriatic arthritis suppressed his
immune system, and that he was often severely fatigued after taking care of daily
tasks like showering or spending an afternoon with his son. The ALJ likewise
provided no basis not to credit this testimony. Thus, these claimed limitations
should have been accounted for when determining Anderson’s residual functional
capacity. See, e.g., Trevizo, 871 F.3d at 678 n.6; Burrell v. Colvin, 775 F.3d 1133,
1138 (9th Cir. 2014).
                                            7
if Anderson’s testimony had been credited, the ALJ would have had to determine

that Anderson would have had to take much more extensive breaks during the

course of the workday, and would have missed a substantial number of workdays

during a month on account of his pain and bleeding. Accordingly, we reverse. and

remand.2

      REVERSED and REMANDED with instructions for the district court

further to remand this case to the Commissioner to allow further development of

the record by Anderson regarding his symptoms and limitations, and for

reconsideration of the record evidence in light of this disposition.




      2
            Because the ALJ’s erroneous discrediting of Anderson’s testimony
alone warrants reversal, we need not and do not reach Anderson’s other arguments.


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