Opinion
21-35986
11-14-2022
TONI LYN MASSEY, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee.
NOT FOR PUBLICATION
Argued and Submitted October 21, 2022 Portland, Oregon
Appeal from the United States District Court for the District of Oregon D.C. No. 6:19-cv-01684-MC Michael J. McShane, District Judge, Presiding
Before: PAEZ and BADE, Circuit Judges, and GILLIAM, District Judge.
MEMORANDUM [*]
Toni Lyn Massey ("Massey") appeals the district court's judgment affirming the administrative law judge's ("ALJ's") denial of her application for social security disability insurance benefits. Massey challenges the ALJ's decision to give "little weight" to the opinion of her examining physician, Dr. Harvey, and two nonexamining state agency physicians, Dr. Barsukov and Dr. South. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's order affirming the ALJ's denial of social security benefits and reverse only if the decision was not supported by substantial evidence or is based on legal error. Ford v. Saul, 950 F.3d 1141, 1153-54 (9th Cir. 2020) (citations omitted). We affirm in part, reverse in part, and remand for further proceedings.
1. Examining Physician's Opinion. The ALJ did not reversibly err in her decision to give little weight to Dr. Harvey's opinion. An ALJ may reject an examining physician's opinion for "clear and convincing" reasons supported by substantial evidence in the record. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ discounted Dr. Harvey's opinion primarily because Massey testified only to physical limitations on her continued part-time housekeeping work. Dr. Harvey opined that Massey would have trouble completing a normal workday or week without mental health issues and dealing with usual workplace stress. Massey worked part-time as a housekeeper following Dr. Harvey's examination with no mental health complaints. On this record, the ALJ's decision to discount Dr. Harvey's opinion was based on clear and convincing reasons supported by substantial evidence, and we affirm as to the district court's ruling on that issue.
2. Nonexamining Physicians' Opinions. The ALJ discounted the opinions of nonexamining state agency physicians Drs. Barsukov and South because they were "not supported by the objective medical evidence" and were inconsistent with Massey's part-time work and lack of mental health treatment. An ALJ "may reject the opinion of a non-examining physician by reference to specific evidence in the medical record." Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). "[A]n ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion." Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (citation omitted). The ALJ's decision does not refer to specific medical evidence or explain why she considered the opinions of Drs. Barsukov and South to be unsupported by such evidence. The ALJ's determination that these opinions were inconsistent with the objective medical evidence is not sufficient to establish a contradiction. Accordingly, the ALJ's rejection of these opinions is not supported by substantial evidence.
The ALJ's error was not harmless because it was not "inconsequential" to the ultimate disability determination. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). If the ALJ had credited the opinions of Drs. Barsukov and South, she might have determined that the mental health limitations they identified precluded Massey's past relevant work, which would have required the ALJ to inquire whether other jobs exist in the national economy that Massey could perform. Without that analysis, we cannot conclude that the ALJ's error was harmless. Massey's impairments and limitations, properly considered, could reasonably result in a finding of disability. We therefore affirm in part and reverse in part the district court's judgment with directions to remand to the agency for further proceedings consistent with this disposition. Each party shall bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Haywood S. Gilliam, Jr., United States District Judge for the Northern District of California, sitting by designation.