Birgit Putz v. Michael Astrue

MEMORANDUM *

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.

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 weeks 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 taking any prescribed medication”; (5) Putz “is only receiving treatment from a naturo-path”; 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…

dissenting:

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 weeks 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 lack 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 seek aggressive treatment consistent with the claimed severity of…

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NOT FOR PUBLICATION MAR 22 2010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…