FILED

NOT FOR PUBLICATION MAR 22 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

BIRGIT Y. PUTZ, No. 09-35329

Plaintiff - Appellant, D.C. No. 3:08-cv-05290-RBL

v.

MEMORANDUM *

MICHAEL J. ASTRUE,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted March 8, 2010 Seattle, Washington

Before: TASHIMA, FISHER and BERZON, Circuit Judges.

Birgit Y. Putz appeals from the district court's order affirming the

Commissioner's decision denying Social Security Disability Insurance benefits.

Because the Administrative Law Judge's (ALJ) determinations discrediting various

sources of evidence are not supported by substantial evidence, we reverse.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The ALJ offered six reasons for discrediting Putz's testimony regarding the

severity of her symptoms: (1) Putz's statement to Dr. Gan that she had been feeling

well until just a few weeµs prior to an office visit on May 30, 2002; (2) 'there is no

objective medical evidence to support the severity of her symptoms'; (3) since

December 2001, 'the claimant has seen numerous physicians but none of them

have given the claimant a firm diagnosis of chronic fatigue'; (4) Putz 'is not taµing

any prescribed medication'; (5) Putz 'is only receiving treatment from a

naturopath'; and (6) 'claimant did not receive any psychiatric treatment prior to

her date last insured.'

The ALJ's reasons for discrediting Putz's testimony are not 'clear and

convincing.' Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). (1) Putz's

statement to Dr. Gan that she had 'felt well' prior to suffering heart palpitations

and a rapid heart rate in May 2002 related to her heart problems rather than her

chronic fatigue. (2) Putz need not present objective medical evidence to

demonstrate the severity of her fatigue. Smolen v. Chater, 80 F.3d 1273, 1282 (9th

Cir. 1996). (3) Two acceptable medical sources have diagnosed Putz with chronic

fatigue syndrome; no physician has contradicted or questioned those diagnoses.

(4) Putz 'tried various anti-depressants and anti-anxiety medications off and on for

a long time.' (5) Putz received treatment from various medical doctors, including

2 a psychiatrist, an infectious disease specialist, a rheumatologist, two cardiologists

and an endocrinologist. Putz's reliance on naturopathic care does not defeat her

claim. See Social Security Ruling ('SSR') 99-2p. (6) Putz used antidepressant

medications and saw a psychiatrist prior to December 2001.

The Commissioner argues that the adverse credibility determination

nonetheless is supported by substantial evidence because in 1996 Putz declined Dr.

Data's suggestion to visit a chronic fatigue clinic in Seattle. An unexplained, or

inadequately explained, failure to seeµ treatment or follow a prescribed course of

treatment can be a basis to discount a claimant's symptom testimony. Fair v.

Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The ALJ, however, never offered Putz

an opportunity to explain her decision not to visit the Seattle clinic. The

Commissioner also overlooµs Dr. Data's assessment that Putz, as a general matter,

'has been very compliant' in following treatment recommendations. Moreover,

this factor was not relied upon by the ALJ and is therefore not a proper basis for

upholding the Commissioner's adverse credibility determination. See Connett v.

Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ('We are constrained to review the

reasons the ALJ asserts.').

The ALJ's disregard for statements of Dr. Data, Putz's treating medical

source since 1994, also is not supported by substantial evidence. The ALJ gave

3 'no weight' to Dr. Data's residual functional capacity evaluation and 'little

weight' to her 2003 letter. According to Social Security Ruling 99-2p, the ALJ

should 'carefully consider' information provided by treating naturopaths.

Statements by naturopaths 'may be very useful in deciding the individual's

credibility, . . . to assess an individual's ability to function on a day-to-day basis

and to depict the individual's capacities over a period of time.' SSR 99-2p. Dr.

Data was Putz's primary care provider, observed Putz for more than a decade and

witnessed the changes brought about by Putz's illness. She was therefore well

positioned to offer useful information regarding the severity of Putz's fatigue, and

the ALJ's reasons for discounting Dr. Data's statements are inadequate. Dr. Data's

statements were consistent with her March 25, 2002 treatment notes. Although her

February 16, 1999 treatment notes contain a single notation that is potentially

inconsistent with her statements, the ALJ decision to credit this single notation was

unreasonable in light of the evidence as a whole.

The ALJ's determination to give 'little weight' to the testimony of two lay

witnesses, Drena Putz and Louella Martin, also is not supported by substantial

evidence. The ALJ discredited their testimony because it was (1) vague; (2) based

on Putz's subjective assertions; (3) not supported by the record; and (4) not time

specific. In fact, their testimony was specific and probative, based on personal

4 observations of Putz and consistent with the testimony and medical documentation

in the record as a whole. The testimony was vague as to time, but not so vague as

to negate its probative value, especially given that the ALJ made no effort to elicit

more specific information from the witnesses. The witnesses' testimony was

probative, not only to corroborate other evidence regarding Putz's present day

limitations, but also to document the 'substantial reduction in [Putz's] previous

levels of occupational, educational, social, [and] personal activities.' SSR 99-2p.

The ALJ therefore should have given the testimony greater weight. See Stout v.

Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006) ('In determining whether a claimant

is disabled, an ALJ must consider lay witness testimony concerning a claimant's

ability to worµ.').

We reverse and remand for a calculation of benefits. See Orn v. Astrue, 495

F.3d 625, 639 (9th Cir. 2007).

REVERSED AND REMANDED.

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FILED

Putz v. Astrue, No. 09-35329 MAR 22 2010

MOLLY C. DWYER, CLERK

TASHIMA, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS

This court may set aside a decision of the Commissioner of Social Security

only if it is unsupported by substantial evidence or is based on legal error.

Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Because the ALJ

provided clear and convincing reasons for his decision, supported by substantial

evidence, I would affirm.

First, Putz stated to Dr. Gan that she had been feeling well until a few weeµs

prior to May 30, 2002. While this statement could be interpreted to refer to Putz's

heart problems, as does the majority, that is not the only rational interpretation -

the statement could just as well have referred to Putz's general health, including

her fatigue. See id. Thus, this evidence supports the ALJ's finding that Putz was

not disabled in December 2001.

Second, no objective medical evidence supported the claimed severity of

Putz's symptoms. 'Although lacµ of medical evidence cannot form the sole basis

for discounting [a claimant's] testimony, it is a factor that the ALJ can consider in

his credibility analysis.' Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

Third, Putz did not seeµ aggressive treatment consistent with the claimed

severity of her symptoms. '[E]vidence of 'conservative treatment' is sufficient to

discount a claimant's testimony . . . .' Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). The ALJ noted that Putz was not taµing prescribed medication and was

only receiving treatment from a naturopath. Although Putz visited various doctors,

the ALJ reasonably concluded that these doctors did not provide 'treatment.' See

20 C.F.R. y 404.1502 (noting that treatment is marµed by an ongoing relationship).

At the hearing before the ALJ, Putz's own counsel asµed her why she had not

sought more treatment, and Putz responded only that her naturopath had nothing

more to offer. The ALJ, therefore, reasonably found that Putz did not adequately

explain her failure to seeµ treatment and properly considered this as a factor. See

Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc).

Fourth, Putz's naturopath, Dr. Data, is not an 'acceptable medical source',

and her opinions are not entitled to controlling weight. Soc. Sec. Rul. 06-03p. The

ALJ reasonably discounted her statements because they were based primarily on

Putz's subjective complaints. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th

Cir. 2008). Dr. Data's letter supporting Putz's disability claim was written almost

two years after the alleged disability, was conclusory, and admitted that Putz's

physical examinations showed no abnormal findings. Furthermore, on February

16, 1999, the visit prior to Putz's alleged disability onset date, Dr. Data wrote that

Putz had good energy.

The majority states that '[t]wo acceptable medical sources have diagnosed

2 Putz with chronic fatigue syndrome; no physician has contradicted or questioned

those diagnoses.' But that statement only begs the question. No one questions

that Putz has CFS; what is at issue is the severity of her CFS, and that is the nub of

the case before us. Much of the evidence in this case is susceptible to differing

interpretations and our role is not to second-guess the ALJ's rational interpretation

of the evidence. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Even if this

court discounts some of the ALJ's reasons for discrediting Putz's testimony, as

does the majority, the remaining evidence is substantial and sufficiently supports

the ALJ's decision. Carmicµle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162

(9th Cir. 2008).

For these reasons, I would affirm the decision of the Commissioner and the

district court and respectfully dissent.

3