                                                                              FILED
                           NOT FOR PUBLICATION                                APR 02 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


PATRICIA A. SWIMS UNDER,                         No. 11-35194

              Plaintiff - Appellant,             D.C. No. 4:10-cv-00049-SEH

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

              Defendant - Appellee.


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

                           Submitted February 7, 2012**
                               Seattle, Washington

Before: SCHROEDER and GOULD, Circuit Judges, and BEISTLINE, Chief
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for Alaska, sitting by designation.
      Patricia Ann Littleplume (formerly known as, and hereinafter referred to as,

“Swims Under”) appeals from the district court’s decision affirming the

Commissioner of Social Security’s final decision, which concluded that Swims

Under is not entitled to Disability Insurance Benefits under Title II or

Supplemental Security Income under Title XVI of the Social Security Act. 42

U.S.C. §§ 401–34, 1381–83f. We have jurisdiction under 28 U.S.C. § 1291, and

we REVERSE and REMAND to the district court with instructions to remand to

the Administrative Law Judge.

      We review the district court’s decision upholding the Commissioner’s denial

of benefits de novo. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

We reverse the Commissioner’s decision only when it is not supported by

substantial evidence or is based on legal error. Id.

      There is no question that Swims Under has several severe impairments,

including, as the ALJ found, problems with her left rotator cuff, right hip

degenerative joint disease, and left knee degenerative joint disease, with history of

replacements and surgical interventions. The legal dispute is on impacts of these

impairments, and on the intensity, persistence and limiting effects they generated.

Swims Under contends that the ALJ improperly discounted her credibility

regarding the intensity, persistence, and limiting effect of her symptoms. The


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general rule is that “[t]o discredit a claimant’s testimony when a medical

impairment has been established,” the ALJ must “cite the reasons why the

claimant’s testimony is unpersuasive.” Orn v. Astrue, 495 F.3d 625, 635 (9th Cir.

2007) (internal citations, quotation marks, and alterations omitted). Because “the

ALJ did not find ‘affirmative evidence’ that the claimant was a malingerer,” those

reasons must be “clear and convincing.” Id.

      We conclude that in light of Swims Under’s serious impairments, her

restricted activities of daily living and her limited and sporadic work history, clear

and convincing reasons to disbelieve her statements about intensity of pain,

persistence of problems and limiting effects of her symptoms were not shown by

the ALJ. On the record before us, we do not sustain the negative credibility

assessment.

      The ALJ concluded that Swims Under’s daily activities were “not indicative

of disabling or uncontrolled pain and incapacitating limitations.” But “[t]he Social

Security Act does not require that claimants be utterly incapacitated to be eligible

for benefits,” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). In our view,

Swims Under’s daily activities are neither inconsistent with her claimed limitations

and pain, nor do they imply that she could return to work. Her past work record as

a personal care assistant, cooking at McDonalds, and cleaning rooms and making


                                          -3-
beds at motels was not extensive. As for work at home, Swims Under testified that

her husband and teenage son do the housework, that she grocery shops once a

month using a riding cart with the help of another member of her household, that

she watches her 3-year-old grandson for a few hours during the day, and that she

spends a great part of her waking hours in her recliner resting her back and legs.

These restricted activities of daily living do not undermine the credibility of Swims

Under’s subjective complaints.

      Because the ALJ’s reasons for finding that Swims Under was not entirely

credible were not in our view clear and convincing, we reverse the decision of the

district court and instruct it to remand this case to the ALJ for a redetermination of

Swims Under’s credibility and residual functional capacity and for further

determinations consistent with this decision.1

      REVERSED and REMANDED with instructions.




      1
        Swims Under also contends that the Magistrate Judge erred by entering his
findings and recommendations before the deadline to file her reply brief. The
Magistrate Judge erred procedurally, but this error was harmless because Swims
Under does not identify any prejudice she suffered as a result. She was, moreover,
able to present all arguments to the district court that she might have placed in a
reply before the ALJ.


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