FILED

NOT FOR PUBLICATION

JUN 9 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NANCY COGGESHALL, No. 18-16137

Plaintiff-Appellant, D.C. No. 2:17-cv-01299-KJD-NJK v.

KILOLO KIJAKAZI, Acting MEMORANDUM* Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding

Argued and Submitted May 9, 2022 San Francisco, California

Before: W. FLETCHER and BUMATAY, Circuit Judges, and SILVER,** District Judge. Dissent by Judge BUMATAY

Nancy Coggeshall appeals from the district court’s affirmance of a decision

of the Commissioner of the Social Security Administration denying her application

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation. for supplemental security income under the Social Security Act. We have

jurisdiction under 28 U.S.C. § 1291. “We review the district court’s order

affirming the [administrative law judge’s (“ALJ”)] denial of social security

benefits de novo, and reverse only if the ALJ’s decision was not supported by

substantial evidence in the record as a whole or if the ALJ applied the wrong legal

standard.” Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (citations

omitted). We reverse and remand for further proceedings.

The ALJ’s decision to assign no weight to Dr. Gisler’s opinion is not

supported by substantial evidence. “‘[I]f [a] treating doctor’s opinion is

contradicted by another doctor,’ the ALJ may discount the treating physician’s

opinion by giving ‘specific and legitimate reasons’ that are supported by

substantial evidence in the record.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir.

2020) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). The ALJ gave

no weight to Dr. Gisler’s opinion on the grounds that “there are no treatment

records” of Dr. Gisler, and that Dr. Gisler’s opinion “is not consistent with other

substantial evidence of record” because “the limitations set forth in th[e] opinion

are so extreme as to appear implausible.”

However, the ALJ erred in concluding that there are no treatment records of

Dr. Gisler. The ALJ simply missed them in the administrative record. Further,

2 substantial evidence does not support the finding that Dr. Gisler’s opinion is

extreme and therefore implausible. Dr. Gisler indicated that Coggeshall could not

lift or carry any amount of weight, and could not bend, squat, crawl, climb, or

reach above shoulder level. The question posed to Dr. Gisler is whether

Coggeshall can perform those actions “for an 8-hour day, 5 days a week in a

consistent and ongoing manner” (emphasis added). (The analogous questionnaires

in the administrative record, given to other medical evaluators, asked whether and

how often Coggeshall can perform the actions “in” an 8-hour day.) Because Dr.

Gisler’s opinion only indicates that Coggeshall cannot perform the listed actions

consistently for the entire duration of an 8-hour day, it is neither extreme nor

implausible. The ALJ thus has not provided “specific and legitimate reasons” for

completely discounting Dr. Gisler’s opinion. Id. (quoting Lester, 81 F.3d at 830).

Further, under 42 U.S.C. § 405(g), remand is appropriate where the onset

date of a successful application closely follows a denial of benefits for an earlier

period, and where the initial denial and later award are not easily reconcilable on

the record before us. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). The

ALJ denied Coggeshall’s first application for supplemental security income on

September 15, 2015, with an onset date of June 12, 2013. Another ALJ later

awarded benefits to Coggeshall with an onset date of September 16, 2015. The

3 second ALJ noted Coggeshall’s Lyme disease diagnosis and found “persuasive”

the opinion of Dr. Sparks. Dr. Sparks, in turn, had relied on the opinion of Dr.

Gisler, to which the first ALJ assigned no weight. The initial denial and later award

are not easily reconcilable on the record before us. We thus REVERSE and

REMAND for further proceedings. Although it is a close question, we DENY

Coggeshall’s motion to remand with direction to calculate and pay benefits (Dkt.

No. 33).

REVERSED AND REMANDED.

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FILED

JUN 9 2022

Nancy Coggeshall v. Kijakazi, No. 18-16137

MOLLY C. DWYER, CLERK

BUMATAY, Circuit Judge, dissenting: U.S. COURT OF APPEALS

I dissent because the panel majority nickels-and-dimes the ALJ’s decision and

misapplies our precedent on remands.

The panel majority fails to apply the highly deferential substantial evidence

standard. Substantial evidence is a low bar that requires only “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). That bar is clearly met here.

In giving Dr. Gisler’s opinion no weight, the ALJ explained that the opinion on

Coggeshall’s limitations was so extreme as to appear implausible. Dr. Gisler

reported that beginning in 2009, Coggeshall couldn’t lift or carry any amount of

weight and couldn’t sit, stand, and walk for more than an hour. But this opinion

clashed with Coggeshall’s own testimony that she worked through 2013 and spent

4−6 hours sitting each day.

The panel majority claims that because the questionnaire posed to Dr. Gisler

used the preposition “for” instead of “in,” the ALJ’s extreme and implausible

rationale cannot be credited. Majority 3. That’s a misreading of the evidence. The

questionnaire clearly asked Dr. Gisler to explain how many hours Coggeshall could

perform each task within a standard workday. And Dr. Gisler gave her opinion based

on that clear question. But even if the use of “for” created some ambiguity as to how

Dr. Gisler understood the questionnaire, the ALJ’s interpretation must be conclusive. 1 That’s black letter law. “[W]hen the evidence is susceptible to more than one

rational interpretation, we must uphold the ALJ’s findings if they are supported by

inferences reasonably drawn from the record.” Molina, 674 F.3d at 1111.

There’s also no reason to remand under 42 U.S.C. § 405(g) because the two

proceedings were based on changed circumstances. In the second proceeding, the

ALJ noted that Coggeshall presented “changed circumstances, namely a change in

age category along with allegations and evidence showing worsening of her

impairments and new impairments not considered in the prior final decision.” Part

of those changes included worsening physical conditions and a new cancer

diagnosis. Under these circumstances, we should’ve denied remand like we’ve done

before. See Bruton v. Massanari, 268 F.3d 824, 826−27 (9th Cir. 2001) (rejecting a

remand request based on an award of benefits starting from one day after the denial

of an initial application for benefits because the “second application involved

different medical evidence, a different time period, and a different age

classification”).

I respectfully dissent.

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