Brandon T. Beyerlin v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRANDON T. BEYERLIN,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-35772
D.C. No. 6:15-cv-01434-KI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted May 18, 2018**
Before: GOODWIN, LEAVY and SILVERMAN, Circuit Judges
Brandon Beyerlin appeals the district court’s order affirming the Social
Security Administration’s denial of his application for Title II disability benefits.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s
FILED
MAY 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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order de novo and the agency’s decision for substantial evidence and legal error.
Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). We reverse and
remand.
Beyerlin does not challenge the finding that he made inconsistent statements
about whether the pain medication made him drowsy. Thus, he waived the
argument. Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th Cir.
2009). This finding, which is supported by the record, provides substantial
evidence to support the adverse credibility finding. Molina, 674 F.3d at 1112
(inconsistent statements may support adverse credibility findings). Any errors in
the remaining adverse credibility findings are harmless. Carmickle v. Comm’r,
Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
The ALJ erred by adopting an incomplete record review opinion of Dr.
Berner and rejecting the treating opinions of Dr. Emond that Beyerlin would need
to lie down or to rest periodically during the work day to relieve pain and would
miss more than two days a month due to his impairments. An ALJ may reject
treating opinions that are inconsistent with treatment notes or are “brief,
conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart,
278 F.3d 947, 957 (9th Cir. 2002). However, contrary to the ALJ’s findings, Dr.
Emond’s 2013 opinions were consistent with her contemporaneous treatment notes
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and were supported by objective clinical evidence, imaging and the consistent
opinions of the treating surgical and pain specialists, Dr. Kitchel, Dr. Moore, and
Dr. Angeles. The record does not support the ALJ’s finding that Dr. Emond’s
opinions were inconsistent with the notes that Beyerlin had a normal gait during
some of the examinations. None of the treating doctors opined that Beyerlin was
not in pain or did not have physical limitations on occasions in which they noted a
normal gait. In fact, Dr. Kitchel noted a normal gait when he and the other treating
specialists unanimously agreed that Beyerlin’s lower back pain was caused by
stenosis, that alternative treatments had failed, and that surgery was necessary to
treat the pain.
Nor does Dr. Berner’s record review opinion provide substantial evidence to
support the ALJ’s residual functional capacity assessment. Dr. Berner did not
consider the last year of medical treatment, including Dr. Emond’s 2013 opinion
and other medical evidence that Beyerlin’s condition had deteriorated. Hill v.
Astrue, 698 F.3d 1153, 1160-61 (9th Cir. 2012)( holding that a non-treating, non-
examining medical consultant’s opinion that failed to consider a more recent,
severe panic attack that was inconsistent with the consultant’s opinion could not
provide substantial evidence to support the ALJ’s decision).
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The residual functional capacity assessment is incomplete and not supported
by the record in light of the improper rejection of Dr. Emond’s opinions. Taylor v.
Comm’r , Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir. 2011). Nor was the
error harmless. The vocational expert testified that an individual who had either
limitation noted by Dr. Emond could not perform the relevant unskilled sedentary
work at step five of the sequential evaluation.
We decline to credit Dr. Emond’s opinion as true and remand for benefits.
Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (the record must be “fully
developed” to remand for benefits).
REVERSED AND REMANDED.
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