FILED

NOT FOR PUBLICATION

APR 02 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LINDA L. PULLIAM, No. 15-35496

Plaintiff-Appellant, D.C. No. 1:14-cv-03138-JPH

v.

MEMORANDUM*

NANCY A. BERRYHILL, Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Washington James P. Hutton, Magistrate Judge, Presiding

Submitted March 29, 2018**

Before: FARRIS, CANBY and LEAVY, Circuit Judges.

Linda L. Pulliam appeals from the district court’s judgment affirming the

decision of the Commissioner of Social Security denying her applications for

disability insurance benefits and supplemental security income under Titles II and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We

review the district court’s order de novo, Garrison v. Colvin, 759 F.3d 995, 1010

(9th Cir. 2014), and reverse and remand for an award of benefits.

As a preliminary matter, we address the Commissioner’s contentions that

Pulliam has waived some of her claims and the arguments she advances in support

of them and that the law of the case doctrine bars this Court from reviewing some

of those claims. First, Pulliam has not waived any of her claims or the arguments

she advances in support of them because she raised in district court the same

claims she raises on appeal, and having done so, she may advance any argument in

support of them now. See Yee v. City of Escondido, Cal., 503 U.S. 519, 534

(1992). Second, the law of the case doctrine does not bar this Court from

reviewing any of those claims because the doctrine applies “only to decisions by

the same or a higher court,” and this Court has not reviewed Pulliam’s claims

before now. See Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017).

I. The ALJ Did Not Err at Step Three.

Because Pulliam failed to carry her burden of proof at step three of the

sequential analysis by presenting evidence sufficient to satisfy the criteria under

sections 1.02 (“Major dysfunction of a joint”) or 1.04 (“Disorders of the spine”) of

the Listing of Impairments, the ALJ did not err in determining that the severity of

2 Pulliam’s impairments does not meet or equal the criteria under either section. See

Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (claimant bears the burden of

proof at step three of the sequential analysis).

II. The ALJ Erred in Weighing the Opinion Evidence.

The ALJ erred in weighing the opinions of Pulliam’s treating and non-

examining medical sources. Most notably, the ALJ erred in giving significant

weight to treating physician Dr. Reinmuth’s opinion by failing to account for Dr.

Reinmuth’s opinion that Pulliam cannot work, an error the Commissioner

concedes. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). The ALJ

also erred in giving significant weight to the state agency’s non-examining

physicians’ opinions, because they did not consider “all of the pertinent evidence,”

including ten opinions from Pulliam’s treating providers indicating that Pulliam

cannot work. See 20 C.F.R. § 404.1527(c)(3). These two errors leave the ALJ’s

decision unsupported by any medical source’s opinion.

In addition, the ALJ erred in giving little weight to treating physician Dr.

Lyzanchuk’s opinion by failing to evaluate his opinion that Pulliam cannot work,

see Marsh, 792 F.3d at 1173; in concluding without explanation that treating

physician Dr. Lindgren’s opinions from 2011 and 2013 “contrast sharply” with

other evidence, see Garrison, 759 F.3d at 1012 (“The ALJ must do more than state

3 conclusions.”); and in discounting Dr. Lindgren’s opinions on the basis that they

were “out of proportion” to Pulliam’s daily activities, because in discussing

Pulliam’s activities, the ALJ misrepresented Pulliam’s abilities and failed to

account for the difficulties to which she testified. See id. at 1015-16.

III. The ALJ Erred in Discounting Pulliam’s Symptom Testimony.

The ALJ erred by discounting Pulliam’s symptom testimony for reasons that

are not specific, clear, and convincing. See Vasquez v. Astrue, 572 F.3d 586, 591

(9th Cir. 2009). With respect to Pulliam’s testimony on the severity of her mental

impairments, the ALJ erred by concluding that evidence of histrionic behavior

suggests that Pulliam embellished her symptoms, because this conclusion is not

supported by any inference reasonably drawn from the record. See Molina, 674

F.3d at 1111 (“[W]e must uphold the ALJ’s findings if they are supported by

inferences reasonably drawn from the record.”). With respect to Pulliam’s

testimony on the severity of her physical impairments, the ALJ erred by

discrediting her testimony on the basis that (1) her gait was often described as

unremarkable, (2) she did not receive the type of treatment “one would expect for a

totally disabled individual,” (3) her descriptions of symptoms were inconsistent,

unpersuasive, vague, and general, (4) her work history indicates that she can work

despite her impairments, and (5) she is able to engage in daily activities and go on

4 occasional trips, because the ALJ failed to “point to specific facts in the record”

that support these findings, or in some respects, there are no such facts in this

record. See Vasquez, 572 F.3d at 592. Consequently, substantial evidence does

not support the ALJ’s finding that Pulliam’s symptoms are not as severe as she

alleged, because the “vast majority” of the ALJ’s reasons for discounting Pulliam’s

testimony are not specific, clear, and convincing. See Trevizo v. Berryhill, 871

F.3d 664, 682 (9th Cir. 2017).

IV. Remand for Calculation and Award of Benefits is Warranted.

This case presents the “rare circumstances” that warrant exercise of the

Court’s discretion to depart from the ordinary remand rule and remand for

calculation and award of benefits. See Treichler v. Comm’r of Soc. Sec. Admin.,

775 F.3d, 1090, 1101. First, Pulliam’s case was remanded to the agency for further

proceedings once before, so the record has been fully developed and further

administrative proceedings would serve no useful purpose. See Garrison, 759 F.3d

at 1020 (applying first factor of the credit-as-true analysis). Second, the ALJ failed

to properly evaluate several opinions from treating physicians indicating that

Pulliam is disabled, and most of the ALJ’s reasons for discrediting Pulliam’s

testimony are not specific, clear, and convincing. See id. (applying second factor

of the credit-as-true analysis). Third, if the improperly discredited evidence were

5 credited as true, it is clear that the ALJ would be required to find Pulliam disabled

on remand. See id. (applying third factor of the credit-as-true analysis).

Furthermore, evaluation of the record as a whole does not create “serious doubt”

that Pulliam is, in fact, disabled, see id. at 1021, and on appeal, the Commissioner

does not point to any evidence that might otherwise create such serious doubt.

We therefore reverse and remand to the district court with instructions to

remand to the Social Security Administration for calculation and award of benefits.

REVERSED and REMANDED.

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