Cynthia Howard v. Carolyn W. Colvin

MEMORANDUM

Appellant Cynthia Howard challenges the denial of Social Security benefits. She was employed as an accountant but has not worked since 2005, and it is not disputed that she suffers from a variety of mental and physical impairments.

Howard correctly points out that the ALJ failed to provide any reason for rejecting the opinion of one of Howard’s treating physicians, Dr. Albery, who had found Howard suffered from severe mental impairments and from physical conditions creating pain he described as “excruciating.” The ALJ failed even to mention Dr. Albery’s opinion. Our law requires that the ALJ give at least a “specific and legitimate” reason for rejecting the opinion of a treating physician. Lester v. Chater; 81 F.3d 821 , 831 (9th Cir.1995). The government responds that there were reasons the ALJ could have given for rejecting Dr. Albery’s opinion, but we are not allowed to consider post hoc rationalizations. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir.2009) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 , 67 S.Ct. 1575 , 91 L.Ed. 1995 (1947)).

The ALJ found Howard’s testimony not credible, but only because it did not comport with the ALJ’s…