*1 Donald, Chevrolet, Inc. v. 1522; Madisons P.2d 1041-43 Ariz.
(1973) car dealer (holding that defendant fraudulent concealment for both liable
was it when misrepresentation fraudulent “new” it was when that car
represented accident, prior in a actually been
had because award punitive damages
upholding plaintiff “to inform the failure
defendant’s previously had been the automobile a ‘reckless indifference’
wrecked plaintiff). Our safety of’ rights Congress open only wide
doors are only wide they open here
permits and are directly relate to
enough for claims fraud.
odometer
AFFIRMED. CARMICKLE, Plaintiff-
Ronald
Appellant,
COMMISSIONER, SECURITY SOCIAL
ADMINISTRATION, Defendant-
Appellee.
No. 05-36128. Appeals, States Court of
United
Ninth Circuit. Dec. 2007.*
Submitted July
Filed * 34(a)(2). R.App. P. unanimously this case suitable panel finds argument. oral See Fed. for decision without *3 Associates, Wilborn,
Tim Wilborn & P.C., Linn, OR, for the West filed briefs plaintiff-appellant. Morris, Regional
Richard A. Assistant Administration, Counsel, Security Social Seattle, Counsel, Office General WA, a brief for the defendant-appel- filed lee; Immergut, Karin J. United States Portland, OR, Evans, Neil Attorney, J. Attorney, Assistant United States Mi- McGaughran, Regional chael Chief Coun- Seattle, WA, sel, X, were on the Region brief. F.
Before: DIARMUID O’SCANNLAIN, P. GRABER SUSAN CALLAHAN, and CONSUELO M. Judges. Circuit O’SCANNLAIN; by Opinion Judge Dissent Partial and Partial Concurrence by Judge GRABER.
O’SCANNLAIN, Judge: Circuit whether must decide district We properly affirmed the Commission- court Security Disability In- er’s denial Social in this case. surance benefits I disability alleges and seeks Act, Security under the benefits Social inju- primarily § to a back due U.S.C. on-the-job acci- July ry caused fifties, an In Carmickle has dent. llth-grade college education with some neck recommended and back exercises and classes, gave Ms Carmickle a two-week work past experience work in- excuse. worker, salesper- cludes construction auto compensa- filed a workers’ son, supervisor, counter construction tion Oregon claim with the State of A salesperson. few his acci- weeks before July based on the 2001 accident. No- dent, Dr. Carmickle was examined Gan- performed vember physicians two janan reported history Nilaver and joint independent medical evaluation injuries neck and back and chronic back connection with this claim. Both doctors pain. Dr. Nilaver concluded that Carmick- diagnosed degenerative multilevel lumbar physical therapy, le would benefit from but disease and concluded that the lumbar *4 perform sedentary that he could activities. stationary strain medically and creat- permanent ed “no impairment.” The injury, his to After work Carmickle went that, physicians also despite noted emergency complaining room of lower pain, claims of Carmickle “s[at] comfort- pain. He back mention his work- ably during the interview of the portion diag- related accident. Carmickle was examination” and to appear “d[id] nosed with and left sciatica mild lumbar any difficulty have or sitting any with degenerative joint disease, but lumbar disc change position.” disease was ruled out. A few months la- ter, Kane, by he was examined Dr. Kevin In December Dr. Michael Horo- osteopath. witz, an Carmickle told Dr. Kane an osteopath, recommended Car- that he believed his of pain onset was mickle use a “reclinable desk chair while by caused working.” the work-related accident. Dr. diagnosed Kane moderate to degen- severe Patton, Dr. osteopath, Mark also an disc region, erative disease the lumbar treated Carmickle between December 2001 but he did not it believe was related to the and November December on-the-job injury. Dr. pre- Kane noted Dr. diagnosed Patton an L4-5 bulge disc existing degenerative spondylosis lumbar with possibility spinal stenosis. He disease, and disc and he recommended recommended or walking stretching every therapy physical provided a and work ex- 45-60 and prolonged minutes “no sitting.” cuse for two weeks. Dr. Kane noted Car- thereafter, Shortly Dr. Patton noted Car- significant mickle “does have low back dis- mickle’s decreased sensation the left ability,” and “it is clear he did not tolerate diagnosed peripheral foot and neuropathy. sedentary light
return to or work.” Dr. opined Patton that Carmickle “would job be off up in[a] better where he is & A few weeks after Dr. Kane’s examina- moving job.” rather than a sit down tion, by Carmickle was examined Dr. Vic- toria again reported Carvalho. Carmickle In January Carmickle had an MRI injury complained work-related and of which spinal signifi- showed no stenosis or pain lower-back despite chiropractic treat- impairment. cant nerve root Dr. Patton ment physical therapy. and Although he condition, summarized Carmickle’s stating stated that he was to unable sit stand “only major that the functional limitation minutes, more than five ten Dr. currently inability is the ... to sit for Carvalho noted that Carmickle sat in her prolonged periods without developing office for at half an diag- least hour. She numbness his foot.” Several months secondary nosed sprain later, lumbosacral to the he observed localized tenderness and reported injury work prescribed she swelling consistent with chronic muscle pad. Relafen and a moist heating strain She and recommended that Carmickle (“RFC”) capacity past rele- perform injection. Carmickle de- a Relafen have supervisor vant work as a clined. construction salesperson. Appeals counter Council later, again Dr. Patton A few months adopted deci- denied review noticing after injection an recommended final sion as the decision of Commis- extremities showed peripheral Carmickle’s August sioner on 2004. Carmickle peripheral vascular dis- signs of chronic district court sought pursu- review the experi- was still and that Carmickle ease § 405(g), ant Again, Carmickle de- to U.S.C. and the district encing tenderness. reported although Patton appeal clined. Dr. court affirmed the ALJ. This fol- has not been covered” “typically Relafen lowed. insurance, it “has been the Carmickle’s provided significant that has only thing II potential or intol-
relief without addiction Patton effects.” Dr. further erable side properly district court af “The opined likely incapable that Carmickle denying firms Commissioner’s decision returning to construction work due if supported benefits it is substantial *5 “retraining pro- a problems, but health application on the evidence and based a gram certainly is viable alternative.” v. legal Sandgathe correct standards.” agreed Patton with Dr. Horowitz’s rec- Dr. (9th Cir.1997) Chater, 978, 108 F.3d 980 use that a reclina- ommendation Carmickle curiam). (per “Substantial evidence chair work. ble means than a mere more scintilla but less to his impairments,
In addition back a it such preponderance; than is relevant alleges that he suffers from Carmickle mind ac might evidence as a reasonable 2003, impairments. September mental cept adequate support as to a conclusion.” loss, memory complained worsening he Shalala, 1035, Andrews v. 53 F.3d 1039 depression. Dr. lethargy, possible and (9th Cir.1995). Zung that reported Patton Carmickle’s Security A is entitled claimant to Social normal, profile displayed that he was but disability only if from a benefits he suffers time, At same Dr. Patton flat affect. “medically men- physical determinable diagnosed x-ray tendonitis after an of Car- tal him from impairment” prevents that mickle’s elbows showed bilateral bone prior work activities and performing his spurs. gainful “any employment other substantial application filed his for Dis- Carmickle economy.” that exists the national May ability 2002. In Insurance benefits (9th 1094, Apfel, v. 1098 Tackett 2003, hearing had a November Carmickle Cir.1999) 423(d)(2)(A)). § (citing 42 U.S.C. judge an administrative before law Administration em- Security The Social (“ALJ”). represented by Carmickle analysis to ploys five-step sequential de- and he testified on his own behalf. counsel Here, disability. termine Id. Carmickle (“ME”) Expert Dr. L. Medical William him agency contends the erred (“VE”) DeBolt, Expert and Pa- Vocational erroneously the ALJ not disabled because Ayerza hearing. tricia also testified (a) testimony lay wit- rejected his and the Lay witness Tom Tucker submitted a (b) credible, fully ness statement on Carmickle’s behalf. After evidence, rejected of medical and some hearing, the ALJ concluded that Car- (c) his relevant work prior classified impairments, mickle have severe but does supervisor counter sales- and construction disability he benefits that is entitled issue in turn. person. address each the residual functional We because he retains ” Astrue, A Lingenfelter reasons.’ (9th Cir.2007) 1028, (quoting The ALJ found Carmickle’s testi (9th Chater, Smolen v. 80 F.3d mony entirely “not light credible in of the Cir.1996)). only time this standard daily treatment record and his activities.” apply is when there is affirmative that had testified he is con evidence that the claimant is malingering. pain stant due his back condition and Barnhart, (9th Greger v. 464 F.3d that he sit or cannot stand for more than Cir.2006); Morgan v. Comm’r Soc. Sec. 15 minutes at a time. He that stated when (9th Admin., Cir.1999).1 sitting, “change he positions has con stantly.” He also lifting stated Here, the not find that Car- ability significantly limited he is malingering mickle and we see affir- no can lift pounds between 10 and Rather, mative such. evidence of the dis- occasionally. The ALJ concluded Car court, Sullivan, trict relying on Swenson v. allegations mickle’s regarding his condition Cir.1989), concluded (1) are inconsistent with his full-time col alleged symptoms that Carmickle’s are not (2) attendance, lege receipt of unem “medically alleg- related” because is not benefits, (3) ployment pain minimal ing that his symptoms “are somehow more (4) regime, treatment Dr. Patton’s disabling just to him than to others.” As opinion that can pounds lift 10 stated, the clear-and-convincing standard frequently pounds and 20 occasionally. applies only objective where medical evi- court, addressing The district only the first dence establishes the claimant suffers inconsistencies, fourth affirmed impairment from an reasonably that could *6 credibility ALJ’s adverse assessment. In be expected to cause symptoms the of so, however, doing the district court con Smolen, which he complains. 80 at cluded the convincing “clear and reasons” an 1281. Once such impairment is estab- standard we established Lester Cha lished, however, reasonably the claimant’s (9th fer, Cir.1996), 81 F.3d 834 did not expected symptoms are “medically deemed rather, apply, but that the need only “ Smolen, related.” In explained: we ‘identify testimony what is not credible produce objec- The claimant need not and what evidence undermines [Carmick ” tive medical evidence of the [symptom] complaints.’ le]’s
itself, or
severity
thereof. Nor must
produce objective
the claimant
medical
evidence of the causal relationship be-
have consistently
We
held that
medically
tween the
determinable im-
objective
where the record includes
medi
pairment
symptom.
requir-
and the
By
cal evidence establishing that the claimant
ing that
impairment
the medical
impairment
suffers from an
“could
that
rea
could
sonably
reasonably
produce
expected
produce”
be
symptoms
pain
which he
complains, an
or
credibility
adverse
another
finding
symptom, the Cotton Bow-
[v.
“
(9th
be
on
en,
Cir.1986)]
must
based
convincing
‘clear and
requires only inference, “change positions constantly” not a sit- a when ship be reasonable phenomenon. medically proven ting, it inconsistent with Carmick- college le’s full-time attendance. When omitted). (citations Id. at 1282 attendance, discussing school Carmick- specific its that decision support sitting le stated that he has trouble required testimony from Carmickle was “the through classes that are little bit clear-and-convincing standard before longer.” He also indicated that propping court apply, the district relied would leaning helps up feet forward relieve that “[i]f statement Swenson our state, however, his discomfort. He did not objective medical find- claimant submits constantly adjusts position he impairment normally ings of an that would Rather, sitting in while class. when given symptom, but testifies produce counsel, he admitted that he pressed symptom to a experiences that he “[ajbout for 15 minutes in one can sit normally degree than would be greater particular position.” The ALJ included expected, Secretary may disbelieve this limitation in his RFC as- 15-minute findings justi- specific that but must make sessment, record, we and on this conclude F.2d at 687. This fying his decision.” 876 interpretation of the evidence is rea- law, good but it does not principle remains second-guess will not it. sonable only addresses how apply here. Swenson Massanari, Rollins v. treat a claimant’s excess the ALJ must Cir.2001).2 It testimony. Id. does not es- symptom assessing for the claim- tablish a standard rejected The ALJ also Carmickle’s testi- And it generally. ant’s mony pounds can lift occa- determining establish the standard of Dr. contradic- sionally favor Patton’s alleged symptoms are whether a claimant’s tory up can lift to 10 opinion that he point, our “medically related.” On pounds frequently. with Contradiction line cases controls. Smolen record is a sufficient basis for medical subjective testimo- rejecting claimant’s Here, that he suf- Carmickle has shown *7 Shalala, 1428, ny. v. F.3d Johnson medically-established a back fers from Cir.1995). (9th Thus, we conclude reasonably impairment that could be ex- by on the that both of these reasons relied pain and pected produce back reduced supported by ALJ are substantial evidence Thus, subjective testimony mobility. in the record. rejected only pain be about his back can convincing and reasons. for clear weight gave ALJ also less to Car- The un- testimony because he received mickle’s
Accordingly, our
task is to deter-
next
he
the time
employment
during
benefits
mine
adverse credibili-
whether
ALJ’s
only
alleges disability and
he took
because
ty finding
sup-
of Carmickle’s
is
First,
Ibuprofen
pain.
to treat his
while
by
ported
substantial evidence under
can un-
clear-and-convincing
receipt
unemployment
benefits
standard. The
Co.,
Assocs.,
rejected
v. Mont. Power
See Paladin
Inc.
ALJ also
Carmickle's assertion
Cir.2003)
1145,
(9th
(noting
memory problems
that
has
on the basis
he
“ordinarily
matters
successfully completed
that we
will
consider
that
has
several
he
specifically
dis-
appeal
are
college
We
not address
on
that
full-time
terms.
do
argued
appellant's opening
finding
argue
tinctly
in an
this
because Carmickle failed to
brief”).
any specificity
briefing.
this
in his
issue with
id).
alleged inability
clear
dermine
claimant’s
Our decision Batson makes
fulltime,
Bowen,
see
v.
Copeland
work
861 that reviewing
credibility
the ALJ’s
deter-
(9th
536,
Cir.1988);
accord
provides specific
mination where the ALJ
Barnhart,
Schmidt v.
745-46
supporting
reasons
such is
substantive
(7th Cir.2005) (recognizing
of un-
receipt
analysis.
“sub-
long
So
there remains
employment
impact
benefits could
claim-
supporting
stantial evidence
the ALJ’s
claim),
disability
here
ant’s
record
credibility”
conclusions on ...
and the er-
not establish whether
held him-
negate
validity
ror “does not
out
part-
self
as available for full-time or
conclusion,”
[credibility]
ALJ’s ultimate
Only
work.
former
time
is inconsis-
such
is deemed harmless
does not
Thus,
with
disability allegations.
tent
1197;
warrant
Id.
reversal.
see also
credibility
such basis for the ALJ’s
Stout,
(defining
ALJ
indeed, the RFC assessment
is
gations;
argues
Carmickle also
testimony.
largely consistent with his
above,
finding lay
in
witness Tucker’s
And,
the ALJ erred
discussed
the extent
validity
A
are
ALJ’s ultimate conclusion.’
The dissent contends that we
erroneous-
3.
expressed
dissenting
ly adopting
analysis
proper
view
would have been
similar
Batson,
at
case.”)
See Dissent
1168-69.
(quoting
Stout
Robbins.
this
however,
allegation,
mischaracterizes
Such
omitted),
1197) (internal
citation
it is not
disagreement in this case and misunder-
adopt today,
an inter-
but rather
view that
disagreement here
our caselaw. The
stands
solely
itself that
based
pretation of Batson
Batson,
interpret
is in how to
our decision
language we
therein.
used
harmless error stan-
which established the
specific
provides
dard in cases where the
statement
also relies on the
The dissent
supporting
credibility
its
determina-
reasons
asserting
that the error in Batson
Stout
pur-
explained,
As
Stout and Robbins
tion.
materially
im-
because it "did
harmless
portedly extended Batson and created
pact
decision.” Dissent at
[the AU’s]
applicable where the
harmless error standard
Stout,
1055) (emphasis
F.3d at
(quoting
credibility deter-
ALJ fails to make a reasoned
added).
previously dis-
For
the reasons
however,
not,
over-
mination. Such cases
*9
cussed,
Batsons "materiali-
we conclude that
Batson,
they.
rule what we said in
nor could
the ALJ's un-
ty” analysis considers whether
dissenting view in
And while it is true the
spite
supported, in
derlying decision remains
disagreed with
exten-
Stout and Robbins
such
error,
ALJ would
any
and not whether the
sion,
Robbins,
(O’Scann-
1165 that can indicating that Dr. Patton indicated Carmickle sit visit follow-up a notes from of couple [Carmickle] weeks in past reclining “over the for two hours a chair 30- in his ... improvement has had further chair, 45 in a but “rota- minutes standard that such that he states symptoms arm walking sitting!,] standing!,] tion between few, if days has past several he over the Dr. reports, In his later works best.” Furthermore, any, complaints.” arm makes Patton no distinction between any not establish medical record chair, that type simply indicating Car- of this limitations as a result work-related mickle can sit for short amounts of Barnhart, v. See Burch impairment. to option time and that he needs alter- (9th Cir.2005) (holding that a F.3d frequently. difficulty nate The is positions “ is deemed ‘severe’ impairment medical agreed that Dr. Patton also stated that he in with ... when alone or combination Dr. with Dr. Horowitz’s recommendation. or medically physical other determinable a proposal was rec- Horowitz’s offered significantly it limits impairment(s), mental ommendation, Thus, imperative. an ability to or mental physical an individual’s rely on Dr. primarily decision (internal activities.”) quota- do basic work regarding specific Patton’s statements omitted). Thus, conclude we tion marks limitations, than his rather Carmickle’s in err his assessment that ALJ did not Horowitz, agreement with Dr. summary syndrome. tunnel carpal of Carmickle’s rational, will it. was and we not disturb Heckler, v. See Allen (“If (9th Cir.1985) admits of evidence the ALJ argues next Carmickle interpretation, one more than rational treating Dr. physician rejecting erred in ALJ.”). must decision of the uphold the that Carmickle cannot statement Kane’s A light work. few sedentary tolerate or disability-trig after Carmickle’s months accident, Kane “mod diagnosed lastly Dr.
gering points Carmickle degenerative Nilaver, disc disease erate to severe Dr. an ex medical evidence from gave spine” in the Carmickle lumbar gave The little physician. amining time, excuse from work. At two-week it opinion Dr. because weight to Nilaver’s “I it that [Car- think is clear he stated: alleged Carmickle’s provided before return to seden tolerate mickle] time Carmick- disability at a when onset of later, Two months tary light work.” jobs working two never le was however, Dr. Kane released Carmickle performing before having trouble indicated gave work. The ALJ return to full-time opinions on-the-job injury. Medical opinion weight Dr. “little assess Kane’s disability alleged onset predate long-term functioning.” ing the claimant’s Fair Bow are limited relevance. See is sup the ALJ’s assessment We conclude Cir.1989). en, This evidence. ported substantial such especially is true cases by a disability allegedly caused where (1983). As event. SSR 83-20 discrete See the ALJ erred Carmickle also contends not err in such, the ALJ did we conclude Dr. Horowitz’s recommenda- rejecting Dr. evidence. Nilaver’s treatment desk tion that use “reclinable Dr. Pat- working.” chair Based on while C a reclin- reports, ton’s the ALJ concluded is wheth appeal final issue has necessary if ing chair is step four report, er ALJ erred RFC option. first sit/stand *11 1166 perform past can is a purely supervisory position
that Carmickle his rele- that re- supervisor vant work as construction quires no manual labor. And on based True, salesperson. counter because the classification, this VE concluded excluding ALJ Carmick- erred some of normally performed in the national assessment, le’s limitations from the RFC economy, light-duty this is a position. 4.B.1, supra see Part and thus from the such im- argues Carmickle classification hypothetical, VE the VE’s “has properly supervisory aspect focuses on the Sullivan, evidentiary no value.” Russell v. proper his work and that the classifica- Cir.1991) 1443, (9th (order), 930 F.2d 1445 Boss,” tion “Straw is which the de- DOT abrogated grounds on other in Sorenson v. fines as someone who “takes the lead in a Mink, (9th Cir.2001). laboring construction or crew.” The exer- However, because Carmickle also asserts tional occupation depends level this past the VE misclassified his relevant specific type of work per- the crew erroneously step- work and conflated the Thus, forms. car- because his crew did analyses, step-five four and must ad- work, exertion, pentry is which medium dress this issue. argues prior work as a con- supervisor properly catego- struction is medium-duty. rized as sequential analysis, At step four prove claimant has the burden to The DOT is “the best source prior cannot perform relevant work job generally performed.” how a Pinto v. actually “either as performed gener- or as Massanari, (9th Cir. ally performed in economy.” the national 2001). work, classifying prior agen Barnhart, v. Lewis 1083 cy keep in every occupa must mind that Cir.2002). Carmickle labeled his con- tion involves that may various tasks re supervisor using struction position various quire differing physical levels of exertion. titles, including “job supervisor,” “con- It is error for the an classify ALJ to struction supervisor (working),” “carpen- occupation “according to the least demand ter,” carpenter.” and “lead In his work ing Heckler, function.” Valencia history report, Carmickle described the (9th Cir.1985). Here, job as follows: “Remodeled house—use just ALJ Only percent that. saws, measures, tape plans, drew all skills Carmickle’s duties as a super construction required to remove anything & renew & visor supervision. involved The remainder home, everything in a super- residential of his spent performing time was manual employees, arranged vised 3 equip, rentals classification, labor. Yet the VE’s which ect Constantly lifting [sic]. or carrying accepted, was a purely superviso something heavy from a hammer to beams ry position. vinyl or rolls of carpet.” frequently & He more, pounds VE, lifted 50 or To and the heaviest the extent the thereby weight pounds. ALJ, he lifted may was 100 more have supervi- concluded that the He stated that his supervisory duties com- sory skills gained from pri- prised percent of his time. or position are to a purely transferrable supervisory position, this error. actually
The VE per- conceded that as analysis The step-four is limited to deter- by Carmickle, formed a heavy- this was mining whether the can perform claimant duty However, position. she classified the past 1086-87; relevant work. position “Superintendent, Id. at Construc- tion,” 404.1520, §§ C.F.R. Only number 182.167-026 in the Dictio- 416.920. if the nary (“DOT”), of Occupational Titles which ALJ longer finds the claimant can no *12 classification, work, explain he failed to his rea- classi- properly as past perform the fied, analysis hearing, move to fifth doing the sons for so. At the the VE whether the determining step asserted, and final simply explanation, that without work that perform any other claimant can Likewise, position. is the light-duty this a Valencia, economy. in the national exists position this baldly ALJ concluded that is Here, the 1086-87. ALJ’s 751 F.2d at light work and do[es] “classified decision, terms, was resolved at by its own require preclud- of tasks performance the step four. Though there ed [Carmickle’s] [RFC].” may generic cases where classifications be perhaps are or even neces- appropriate, argues duty sary, always “has a to make the ALJ classifying work as a prior VE erred findings support factual to requisite described the salesperson. He counter Pinto, step conclusion” at four. job as “Used cash of this follows: functions Otherwise, has at 844. the court no basis saws, computer, advised custom registers, agency’s on which to review the decision. Occa product suggestions.... ers as to Here, Id. at the ALJ failed suffi- 847. help lumber to customers lifting of sional ciently support his conclusion. to shelves, varying was and this stock ” frequently lifted weights.... Ill the heaviest pounds, than 10 and less or pounds was more. weight he lifted reasons, the foregoing For the district day long.” had & walk all He to “stand affirming decision the Commission- court’s described, that as Carmickle contends IN PART er’s is AFFIRMED decision classified “Sales position properly this is IN PART with instruc- REVERSED Materials,” Attendant, DOT num- Building to REMAND tions the district court to however, VE, The failed ber 299.677-014. to the Commissioner further this case classification, ge- instead DOT specify to a remand, On the ALJ is di- proceedings. referring position to as a nerically RFC, in- rected reassess to Carmickle’s “customer ser- position” “counter sales limitations. The cluding all of his relevant job.” The VE further concluded vice ALJ further directed to reassess is position. job was light-duty a light of Carmickle’s step-four conclusion generic the VE’s reliance on and if complete opinion, RFC and this generic was error. “[B]road classification five. necessary, proceed step ... are insuffi- occupational classifications can per- whether a claimant cient test GRABER, concurring in Judge, Circuit Vertigan past work.” form relevant dissenting in part part: (9th Cir.2001); Halter, 260 F.3d one majority opinion I in the with concur (1982) (“Finding see also SSR 82-61 majority’s I dissent from exception. past capacity to do rele- claimant has analysis of the administra- error harmless generic occupa- the basis of a vant work on (“ALJ”) judge’s adverse credibili- tive law likely to of the work is tional classification Carmickle.5 ty respect finding with And unsupportable.”). be fallacious Maj. 1159-67. generic Op. rely on Maj. Op. at capacity. agree majority we residual functional must I with agree majority that with the 1164-65. I also the ALJ erred reverse and remand because is- remainder of the affirm including tendonitis limita- must Carmickle's sues. the ALJ’s assessment of Carmickle’s tion in Majority Applies day,” erroneously A. The an Incorrect and the ALJ television Harmless Error Test. sitting that Batson assumed continu- (instead ously watching while television if, light An ALJ’s error harmless *13 standing, reclining, changing positions the record-supported supporting reasons frequently). Examining Id. the full rec- credibility can con- finding, adverse we ord, held that we the ALJ’s one minor clude that the ALJ’s error did not “af- light error harmless: “In of was the sub- ] the ALJ’s conclusion.” Batson v. fect! stantial evidence Admin., supporting the ALJ’s Comm’r Sec. Soc. 359 F.3d (9th Cir.2004); 1190, credibility, on 1197 see Stout v. conclusions Batson’s we do Comm’r, Admin., 1050, assumption Soc. Sec. 454 F.3d not think that the ALJ’s about (9th Cir.2006) (describing 1054-55 sitting watching Batson while television af- harmless error test as whether “the ALJ’s requires fected the ALJ’s conclusion or materially error did not deci- impact his Id. at remand.” 1197. sion”); Admin., v. Soc. 466 Robbins Sec. clear, quoted As the makes sentence we Cir.2006) 880, F.3d (holding that ask not whether “the ALJ’s remaining an error if is harmless it was “inconse- reasoning credibility and ultimate determi- quential nondisability to the ultimate de- adequately supported by nation were sub- (internal termination” quotation marks Maj. stantial evidence in the record.” Op. omitted)). omitted) Batson, (emphasis (citing at 1162 Instead, The majority disagrees. 1197). Instead, at 359 F.3d we asked majority “the inquiry holds that relevant “[ijn whether, light the substantial evi- ... is whether the ALJ’s remains decision supporting dence the ALJ’s conclusions on valid, legally despite Maj. such error.” credibility,” Batson’s assumption the ALJ’s Op. at long “So there remains sitting watching about while television “af- ‘substantial supporting evidence the ALJ’s Batson, the ALJ’s conclusion.” fected credibility’ conclusions on ... the er- added). (emphases F.3d at 1197 The fact negate ror ‘does validity of the that some the ALJ’s reasons were sup- conclusion,’ [credibility] ALJ’s ultimate ported substantial evidence was a nec- such is deemed harmless and essary pre-condition for reaching the (el- Maj. warrant Op. reversal.” at 1162 test; harmless error it was not the test lipsis and in original) (quoting alteration Indeed, if substantial evidence sup- itself. 1197).
Batson,
at
By
quoting
F.3d
se-
porting the ALJ’s conclusion were suffi-
Batson,
lectively from
majority
evis-
cient, there would have been little need for
cerates
error
harmless
review and creates
full paragraphs discussing
the two
whether
Batson, Stout,
an intra-circuit conflict with
the ALJ’s error was harmless.
and Robbins.
today,
Until
we
had no difficulty
have
today,
Until
Batson was the
case in
only
understanding
Stout,
holding.
Batson’s
In
which we have held that an
error
1054-55,
at
we summarized Bat-
concerning an
credibility
adverse
holding
way:
son’s
“[W]e concluded
There,
was harmless.
gave
the ALJ
nu-
any
error the ALJ committed in as-
merous record-supported reasons for find-
suming
sitting
[Batson was
while watching
ing
credible,
the claimant not
but also
harmless!,]
television] was
(cid:127)
(cid:127)
(cid:127) because
made one
assumption
sup-
was
Batson,
provided
other
ported by the
numerous
record-sup-
record.
359 F.3d at
ported
1196-97.
In
reasons for
particular,
discrediting
“Batson had said
the claim-
questionnaires
about
daily living
testimony,
ac-
ant’s
which allowed our review
tivities that he watched six to ten hours of
to determine the ALJ’s error did not mate-
(Emphasis
binding
three-judge panel,
even if
decision.”
rially impact his
Robbins,
added.)
turn,
Gammie,
noted in
we
disagree
we
with it. Miller v.
Stout,
explained
that “we
[in
F.3d at
(9th Cir.2003) (en banc).
have
1055-56]
justifi-
Contrary
opinion’s attempted
when it was clear
harmless error
found
cation,
Maj. Op.
majority
at 1161 n.
error
from
record that an ALJ’s
here adopts the Stout and Robbins dis-
the ultimate nondisa-
‘inconsequential
Batson,
interpretation
sents’
which the
”
(Emphasis add
bility determination.’
majorities cogently
and Robbins
re-
Stout
ed.)
Astrue,
also Ford
See
jected.
(8th Cir.2008)
Batson and
(citing
*14
that,
careful consideration
holding
“[a]fter
B. The
Errors
Not
ALJ’s
Are
Harm-
case,
say
in
cannot
of the
we
record
Test.
less Under the Correct
heavily against
weighs
that
it
so
Ms.
gave
supporting
four
The ALJ
reasons
credibility
the
would nec
Ford’s
that
ALJ
(1)
credibility finding:
his adverse
Car-
absent
the
have disbelieved her
essarily
“
that he
‘change po-
mickle testified
must
he
the
that
drew
erroneous
from
inferences
”
”
but,
by
constantly’
pressed
sitions
“when
added)).
(emphasis
record
counsel, he admitted that he can sit for
Stout,
In
and
we accurate-
both Robbins
15 minutes in
particular posi-
‘[a]bout
one
and
harmless er-
ly
applied
described
the
(2)
tion’
Carmickle testified that he can
have
ror test over
dissent
that would
only occasionally,
lift
pounds
but his
Stout,
stringent
a less
test. See
applied
opined
up
doctor
that he can lift
to 10
J.,
(O’Scannlain,
dissent-
at
(3)
pounds frequently;
alleges
Carmickle
Robbins, 466
at 889-93
ing);
disabled,
that
but
received unem-
he is
he
Robbins,
(O’Scannlain, J., dissenting).
In
(4)
benefits; and
al-
dissent,
ployment
O’Scannlain,
Judge
would have
leges
he
very
pain,
the
that
has severe
but he took
preferred
panel apply
that
the
majority,
test
the
based
Ibuprofen
pain
now embraced
and not other
medi-
misreading
on the
of Batson. Com-
same
Maj.
agree
at
I
Op.
cations.
1160-62.
(O’Scannlain, J.,
pare
dissenting)
at 889
id.
majority
with the
that the ALJ erred be-
(“In Batson,
example,
simply
for
asked
may
last
be
cause the
two reasons
not
there
evi-
whether
remained ‘substantial
Maj.
precedents.
our
considered under
decision,’
supporting
dence
the ALJ’s
or Op. at 1161-62.
any
‘negate[d]
way
the
whether
error
record,
Reviewing
say
I cannot
that
the
validity
the
of the ALJ’s ultimate conclu-
the
did not affect his conclu-
ALJ’s errors
have
analysis
sion.’ A similar
would
been
sion that Carmickle’s
was not
(citations omitted)
proper in this case.”
Batson,
we held that
the
credible.
(alteration
Maj. Op.
original)) with
sitting
assumption that Batson was
(“So long
there remains ‘substan-
as
watching
while
television was harmless
tial
the ALJ’s conclu-
supporting
evidence
light
record-sup-
other
of
“numerous
credibility’
sions
...
and the error
‘does
ported
discrediting
for
claim-
reasons
validity
ALJ’s ulti-
negate
Stout,
testimony.”
ditionally, record-supported “other representative discrediting[Carmickle’s] estate of Marcel- reasons testi- Garcia, deceased; ino Inez Maria mony” are neither “numerous” nor Gar- partic- cia, individually jointly parents ularly compelling. Carmickle testified Deja positions next change that he has to “constant- friends Bonet Garcia clarified, Garcia, minors, ly” pressed by then when and Nicolas Dionicio but counsel, Plaintiffs-Appellants, that he sit for minutes could majori- changing positions. without As the ty recognizes, the ALJ credited Carmick- FORCE; AIR UNITED STATES James
le’s clarification and included the 15-min- Roche, Secretary G. of the United ute limitation in the residual functional Force; Chenenga Manage- Air States capacity Maj. assessment. It Op. at 1161. ment, LLC; Northeast Construction apparent changing is not positions Company Nevada; Doe, John Con- minutes, every day long, necessarily all tractor, Defendants, perceived would be some- described as *15 than thing less Car- “constant” motion. mickle also testified that he can lift 10 America,
pounds occasionally United though even his doc- States Defendant-Appellee. tor found that he lift pounds could frequently. That significant difference is No. 07-2106. art, as a term of necessarily but meaningful lay person. distinction to a United States Court of Appeals, Tenth Circuit. summary, the ALJ erred consider- ing two factors that prohibits. the law Be- July only two, relatively cause minor record-
supported reasons buttress the ALJ’s con-
clusion, wholly while two im- reasons were
proper, I cannot conclude that the ALJ’s credibility
errors did affect his adverse
finding. Applying the harmless error test precedent,
mandated our I would there-
fore hold the ALJ’s errors were not
harmless.