NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 8 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LINDA WEIRICK,                                  No.    19-15029

                Plaintiff-Appellant,            D.C. No. 2:17-cv-03817-JAT

 v.
                                                MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Arizona
                   James A. Teilborg, District Judge, Presiding

                      Argued and Submitted August 10, 2020
                            San Francisco, California

Before: CHRISTEN and OWENS, Circuit Judges, and BATAILLON,** Senior
District Judge.

      Linda Weirick appeals the decision of the district court affirming the

Commissioner of Social Security’s denial of her application for disability benefits.

We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). As the parties


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Joseph F. Bataillon, Senior United States Senior
District Judge for the District of Nebraska, sitting by designation.
are familiar with the facts, we do not recount them at length here. We reverse and

remand for an award of benefits.

      Linda Weirick alleges disability by reason of constant back and pelvic pain

and urinary incontinence. After a hearing, the ALJ found Weirick had severe

impairments of genitourinary disorder and spine disorder and could not return to her

former job but had the residual functional capacity (RFC) to perform a range of light

work that exists in the national economy. In making that finding, the ALJ credited

the testimony of a consulting examiner over that of Weirick’s treating physicians

and discounted Weirick’s subjective complaints. Weirick appealed and the district

court affirmed the agency decision.

      We review the district court’s order de novo, and, like the district court, we

review the Commissioner’s final decision for substantial evidence. See Dale v.

Colvin, 

, 943 (9th Cir. 2016). “Substantial evidence means more than

a mere scintilla, but less than a preponderance. It means such relevant evidence as

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

Berryhill, 

, 654 (9th Cir. 2017).

      1. The ALJ failed to properly credit the opinions of Weirick’s treating

physicians. The law is clear in this circuit that the ALJ must defer to a treating

doctor’s opinion, even if controverted by another doctor, unless the ALJ makes

findings setting forth specific, legitimate reasons based on substantial evidence in


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the record for rejecting the opinions. See Turner v. Comm’r of Soc. Sec., 

, 1222 (9th Cir. 2010). A treating physician’s opinion that is “well-supported

by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence” in the record is to be given

controlling weight. Garrison v. Colvin, 

, 1012 n.10 (9th Cir. 2014).

      Here, the ALJ discredited the treating physicians’ opinions in part because

they were too extreme in light of the objective medical evidence and the consulting

examiner’s opinion. The clinical signs and objective medical evidence in the record

fully support the treating physicians’ conclusions and substantiate Weirick’s

symptoms of severe back and pelvic pain, fatigue, and incontinence. The record

contains MRI imaging showing disc bulges, facet arthropathy, degenerative changes,

and nerve root compression; records of physical examinations involving palpable

tenderness, observations of antalgic gait and difficult mobility; and clinical records

of complications from failed pelvic mesh surgery, pelvic edema, radiating pain, and

co-morbid fibromyalgia.      The opinion of the consulting examiner does not

effectively counter the treating physicians’ findings.

      2. The ALJ erred in determining Weirick’s RFC. The ALJ found Weirick

would be off task for no more than 5% of a workday and did not include likely

absences as a limitation. In determining a claimant’s RFC, the ALJ “must consider

a claimant’s physical and mental abilities,” “as well as the total limiting effects


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caused by medically determinable impairments and the claimant’s subjective

experiences of pain.” 

.

       Both of Weirick’s treating physicians stated she would be “off-task” for more

than 10% of the workday and would be absent more than six days per month. The

treating physicians’ opinions as to those limitations are consistent with objective

medical evidence and should have been credited by the ALJ. The vocational expert

testified that a person with those limitations would be precluded from competitive

employment.

      3. The ALJ erred in rejecting Weirick’s subjective testimony about the

severity of her symptoms. The ALJ discounted Weirick’s testimony, finding that

her daily activities—grocery shopping, driving short distances, attending church,

preparing meals, visiting with family, reading books, watching television, feeding

pets, doing her own laundry, and caring for her grooming—were not consistent with

disabling pain and fatigue and also because Weirick achieved some level of relief

from medication.

      “When an Administrative Law Judge (ALJ) determines that a claimant for

Social Security benefits is not malingering and has provided objective medical

evidence of an underlying impairment which might reasonably produce the pain or

other symptoms she alleges, the ALJ may reject the claimant’s testimony about the

severity of those symptoms only by providing specific, clear, and convincing reasons


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for doing so.” Brown-Hunter v. Colvin, 

, 488–89 (9th Cir. 2015). We

have “‘repeatedly asserted that the mere fact that a plaintiff has carried on certain

daily activities . . . does not in any way detract from her credibility as to her overall

disability.’” Orn v. Astrue, 

, 639 (9th Cir. 2007) (quoting Vertigan v.

Halter, 

, 1050 (9th Cir. 2001)). “The ALJ must make ‘specific

findings relating to [the daily] activities’ and their transferability to a work setting

to conclude that a claimant’s daily activities warrant an adverse credibility

determination.”

Barnhart, 

, 681 (9th Cir. 2005)).

      Here, the ALJ did not find malingering and, as discussed above, the record

contains objective medical evidence of underlying impairments that reasonably

could be expected to produce Weirick’s pain and other symptoms. The ALJ did not

make specific findings on Weirick’s daily activities and transferability to a work

setting, and did not explain how Weirick’s activities were inconsistent with her

testimony that she suffers from near-constant pain, is incontinent, needs to visit the

bathroom often, and needs to lie down or nap several times a day. Also, there is

scant evidence that Weirick’s pain medications could achieve a degree of pain

control that would enable her to engage in sustained full-time work at a low level of

absenteeism and a high level of on-task behavior. Weirick regularly and consistently

sought treatment for complaints of disabling pain, in spite of her use of narcotic pain

medications. The ALJ also failed to consider the effects of narcotic pain medication


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on Weirick’s concentration and ability to focus.

      4. We remand for the calculation and award of benefits. “The record has been

fully developed and further administrative proceedings would serve no useful

purpose.” 

. The ALJ “failed to provide legally sufficient

reasons for rejecting” the treating physicians’ opinions and the claimant’s testimony.

testimony establishes that if the improperly discredited

opinions of the treating physicians were credited as true, there would be no jobs in

the national economy that she could perform and “the ALJ would be required to find

the claimant disabled on remand.”

that the record as a whole

does not create any “serious doubt as to whether the claimant is, in fact, disabled

within the meaning of the Social Security Act[,]” a remand for an award of benefits

is the appropriate remedy.

      REVERSED and REMANDED with instructions to remand to the ALJ for

calculation and award of benefits.




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