Michael Standen v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL STANDEN,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 17-17386
D.C. No. 2:16-cv-01267-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Edmund F. Brennan, Magistrate Judge, Presiding
Submitted July 25, 2019**
Before: GOODWIN, FARRIS, and LEAVY, Circuit Judges.
Michael Standen appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Standen’s application for disability
insurance benefits under Title II of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo. Attmore v.
* 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).
FILED
JUL 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Colvin, 827 F.3d 872, 875 (9th Cir. 2016). We vacate and remand for further
proceedings.
The ALJ erred in failing to consider Dr. Reddy’s post-surgery records and
evaluate the opinions contained therein. See Marsh v. Colvin, 792 F.3d 1170,
1172–73 (9th Cir. 2015) (“an ALJ cannot in its decision totally ignore a treating
doctor and his or her notes”); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008) (“The ALJ must consider all medical opinion evidence.”). Where, if
credited, a medical opinion that the ALJ failed to address could affect the disability
determination, it is “appropriate to vacate the district court’s opinion, remand with
instructions to the district court to remand to the ALJ, and specifically to invite the
ALJ to comment” on the overlooked records. Marsh, 792 F.3d at 1173.
Because the ALJ expressly limited his consideration of Dr. Reddy’s opinions
to those provided prior to Standen’s surgery, we reject the Commissioner’s
argument that the ALJ adequately considered Dr. Reddy’s post-surgery records and
provided legitimate reasons for discounting them. We likewise reject the
Commissioner’s argument that, by not challenging the ALJ’s assessment of other
medical opinion evidence, Standen has waived any challenge to the ALJ’s failure
to consider Dr. Reddy’s opinions.
We also reject the Commissioner’s assertion that Dr. Reddy’s post-surgery
records support the ALJ’s findings and any error was thus harmless. Dr. Reddy’s

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post-surgery records include the opinion that Standen could return to work but with
“[n]o lifting greater than 10-15 pounds.” This opinion is inconsistent with the
ALJ’s RFC finding that Standen could perform “light work,” including lifting up to
twenty pounds. See 20 C.F.R. § 404.1567(b). Because Dr. Reddy’s opinion is
inconsistent with the ALJ’s RFC finding, we cannot “confidently conclude” that
the error was harmless. Marsh, 792 F.3d at 1173.
The ALJ gave specific and legitimate reasons for assigning little weight to
treating physician Dr. Smith’s opinion that Standen was completely disabled. See
Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). The ALJ properly
considered the consistency of Dr. Smith’s RFC assessment with the record, 20
C.F.R. § 404.1527(c)(4), and the ALJ’s decision reflects consideration of the
Trevizo factors, including Dr. Smith’s specialization and the nature and length of
the treatment relationship. See Trevizo, 871 F.3d at 675 (citing 20 C.F.R.
§ 404.1527(c)(2)–(6)).
The ALJ did not err in failing to consider the side effects of Standen’s
medications because Standen failed to produce “evidence of side effects severe
enough to interfere with [his] ability to work.” Osenbrock v. Apfel, 240 F.3d 1157,
1164 (9th Cir. 2001).
VACATED AND REMANDED.

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