NOT FOR PUBLICATION FILED

APR 27 2022

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JANET THOMSON, No. 21-35152

Plaintiff-Appellant, D.C. No. 1:19-cv-01790-BR

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding

Submitted February 9, 2022** Portland, Oregon

Before: PAEZ and NGUYEN, Circuit Judges, and TUNHEIM,*** District Judge.

Janet Thomson (“Thomson”) appeals the district court’s judgment affirming

the Commissioner of Social Security’s denial of her application for disability

* 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). *** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. insurance benefits under Title II of the Social Security Act. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Ford v. Saul, 950 F.3d 1141, 1153-

54 (9th Cir. 2020) (citations omitted). We vacate and remand for further

proceedings.

1. The ALJ erred in rejecting Dr. Whitehead’s findings because they were

“based on a claimant’s self-reported limitations at a one-time event.” This does

not constitute a “specific and legitimate reason,” especially because the ALJ failed

to reason with the fact that Dr. Whitehead’s opinions were also based on a clinical

review of Thomson and a mental health status examination. Buck v. Berryhill, 869

F.3d 1040, 1049 (9th Cir. 2017) (reasoning that “the rule allowing an ALJ to reject

opinions based on self-reports does not apply in the same manner to opinions

regarding mental illness.”). “These are objective measures and cannot be

discounted as a ‘self-report.’” Id. Accordingly, the ALJ’s rejection of Dr.

Whitehead’s findings is not supported by substantial evidence.

2. The ALJ likewise failed to provide clear and convincing reasons for

discrediting Thomson’s testimony regarding the severity of her symptoms.

“Where, as here, an ALJ concludes that a claimant is not malingering, and that she

has provided objective medical evidence of an underlying impairment which might

reasonably produce the pain or other symptoms alleged, the ALJ may reject the

claimant's testimony about the severity of her symptoms only by offering specific,

2 clear and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d

487, 492-493 (9th Cir. 2015) (citation and internal quotation marks omitted).

The ALJ failed to specify what evidence she relied on to discount

Thomson’s testimony that she could not lift more than 10 pounds, that her acute

pancreatitis keeps her in bed for 12-hour periods, or that she can sit for no longer

than an hour, among other matters to which Thomson testified. “Because the ALJ

failed to identify the testimony she found not credible, she did not link that

testimony to the particular parts of the record supporting her non-credibility

determination.” Brown-Hunter, 806 F.3d at 494. The ALJ therefore committed

reversible error on this ground alone. See id. (concluding this error was harmful

because “we cannot discern the agency’s path” without “any reviewable reasons”

for the credibility determination).

The ALJ’s holding that Thomson’s treatment, which has consisted of

intrusive surgeries, repeat visits to the emergency room for urgent operations and

various prescription medication for her pain, was “conservative” is unsupported by

the record. Cf. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007); Johnson v.

Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). Moreover, to the extent the ALJ

relied on any alleged improvement in Thomson’s treatment, the ALJ failed to

square that with Thomson’s pre-surgery symptoms which also fall within the

alleged onset disability period. See Smith v. Kijakazi, 14 F.4th 1108, 1114 (9th

3 Cir. 2021); see also Garrison v. Colvin, 759 F.3d 995, 1017-18 (9th Cir. 2014)

(explaining that an ALJ’s finding of “a course of improvement” must be based on

“data points” that “in fact constitute examples of a broader development”).

3. Finally, the ALJ erred in failing to give germane reasons for rejecting the

testimony of Thomson’s mother, Wanda Willis. At step four of the sequential

analysis, the ALJ discredited Willis’s testimony because it was “not consistent

with the preponderance of medical and other evidence of record, as well as the

opinions and observations by medical and mental specialists in this case.”

“In determining whether a claimant is disabled, an ALJ must consider lay

witness testimony concerning a claimant’s ability to work.” Stout v. Comm’r Soc.

Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006) (citations omitted). If an ALJ

disregards the testimony of a lay witness, the ALJ must provide reasons “that are

germane to each witness.” Id. (citations and internal quotation marks omitted).

The ALJ’s general statement that Willis’s testimony is inconsistent with the

record is not a reason that is germane to Willis. This was legal error. The ALJ

cannot discredit lay witness testimony simply because it is not “supported by

medical evidence in the record.” Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir.

2017) (citation omitted) (reasoning that the “fact that lay testimony and third-party

function reports may offer a different perspective than medical records alone is

precisely why such evidence is valuable at a hearing.”); see also Bruce v. Astrue,

4 557 F.3d 1113, 1116 (9th Cir. 2009). The ALJ therefore erred in discounting

Wanda Willis’s testimony.

The ALJ’s errors were not harmless because they were not

“inconsequential” to the ultimate disability determination. See Stout, 454 F.3d at

1055. Had the ALJ properly evaluated Thomson and Willis’s testimony and Dr.

Whitehead’s findings regarding Thomson’s mental health impairments, the ALJ

might well have found that Thomson is disabled. We vacate the district court’s

judgment with directions to remand to the agency for further proceedings

consistent with this disposition.

VACATED AND REMANDED.

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