Amelia R. Reichley v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMELIA R. REICHLEY,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-16660
D.C. No. 2:15-cv-00572-ESW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Eileen S. Willett, Magistrate Judge, Presiding
Argued and Submitted January 11, 2018
San Francisco, California
Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.
Appellant Amelia R. Reichley (Reichley) appeals from the district court’s
order affirming the denial of social security benefits. Reichley contends that
substantial evidence does not support the conclusion by the administrative law
judge (ALJ) that Reichley had the residual functional capacity (RFC) to perform
FILED
MAY 23 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.

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light work despite severe impairments stemming from lupus, fibromyalgia,
methicillin resistant staphyloccus aureus with abscesses (MRSA), diabetes, and
obesity.1 Reichley maintains that the ALJ failed to provide specific, clear, and
convincing reasons for rejecting her symptom testimony. Reichley also asserts that
the ALJ erred in affording little weight to the opinions of her treating physician
and a treating physician assistant.
The ALJ provided the requisite specific, clear, and convincing reasons for
finding Reichley’s symptom testimony “not entirely credible.” See Smolen v.
Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (explaining that “the ALJ can reject the
claimant’s testimony about the severity of her symptoms only by offering specific,
clear and convincing reasons for doing so”) (citation omitted).2 The ALJ
1 Reichley acknowledges that she “does not claim her diabetes is an
impairment that precludes a sustained work pace” and does not otherwise
challenge the ALJ’s findings that her laboratory reports reflected that she had
normal blood sugar levels and her medical reports did not reflect “any complaints
of symptoms attributable to this condition.” Reichley also does not convincingly
challenge the ALJ’s determination that “there was no evidence to show [her
obesity] precluded work activities altogether.”
2 Although the Commissioner concedes that the ALJ erred in its findings
concerning Reichley’s travel, consultative examination, and certain work activities,
the ALJ provided sufficient alternative reasons that Reichley’s testimony was not
entirely credible. We conclude that the ALJ’s misstatements amounted to harmless
error. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.
2008) (“So long as there remains substantial evidence supporting the ALJ’s
conclusions on credibility and the error does not negate the validity of the ALJ’s
(continued...)
2

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sufficiently identified inconsistencies between Reichley’s testimony and the
objective medical evidence. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.
2001) (“While subjective pain testimony cannot be rejected on the sole ground that
it is not fully corroborated by objective medical evidence, the medical evidence is
still a relevant factor in determining the severity of the claimant’s pain and its
disabling effects. . . .”) (citation omitted). The ALJ specified that Reichley’s
testimony was inconsistent with her daily activities, as well as the conservative
medical treatment she received. Reichley indicated that she was able to care for
her children, take care of her personal hygiene/grooming needs, prepare meals,
complete household chores, drive, shop, pay bills, and follow instructions. With
respect to Reichley’s fibromyalgia and lupus, the ALJ properly relied on
Reichley’s testimony that she did not seek continued treatment with a
rheumatologist despite her assertions of disabling pain. See Shaibi v. Berryhill,
883 F.3d 1102, 1108 (9th Cir. 2018), as amended (“Where evidence is susceptible
to more than one rational interpretation, it is the ALJ’s conclusion that must be
upheld. . . .”) (citation omitted).
2(...continued)
ultimate credibility conclusion, such is deemed harmless and does not warrant
reversal.”) (citation, alterations, and internal quotation marks omitted).
3

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The ALJ provided clear and convincing reasons for affording little weight to
a fibromyalgia questionnaire signed by a supervising physician. Reichley’s
medical records do not conclusively establish that the physician had a treating
relationship with her. In any event, the ALJ properly concluded that the
questionnaire was not supported by the objective medical evidence because the
assessed limitations exceeded those reported by Reichley. See Tommasetti v.
Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (concluding that the ALJ properly
discounted questionnaire that conflicted with medical evidence and the claimant’s
abilities).
The ALJ provided the requisite germane reasons in affording little weight to
the assessments of a physician assistant. See Revels v. Berryhill, 874 F.3d 648, 655
(9th Cir. 2017) (explaining that “an ALJ may give less deference to other sources .
. . if the ALJ gives reasons germane . . . for doing so”) (citation and internal
quotation marks omitted). The ALJ correctly found that the assessments relied
heavily on Reichley’s subjective complaints and conflicted with Reichley’s
conservative medical treatment, treatment notes, objective medical findings, and
normal physical examinations.
Substantial evidence in the record, including Reichley’s daily activities,
supports the ALJ’s determination that Reichley had the RFC to perform light work
4

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with certain exertional limitations, as well as her past relevant work as a medical
biller. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.
2014) (reviewing for substantial evidence).
AFFIRMED.
5

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Reichley v. Berryhill, No. 16-16660
WATFORD, Circuit Judge, dissenting:
I would reverse. In my view, the ALJ improperly discounted Amelia
Reichley’s symptom testimony and improperly weighed conflicting medical
opinion evidence.
As to the symptom testimony, the ALJ erroneously concluded that
Reichley’s reported symptoms are inconsistent with the objective medical evidence
and conflict with her daily living activities. The ALJ discounted Reichley’s
testimony because she exhibited normal strength and range of motion in a
consultative examination. This was error because normal physical examination
results are compatible with fibromyalgia. See Revels v. Berryhill, 874 F.3d 648,
666 (9th Cir. 2017). The ALJ also stated that Reichley’s symptoms could not be as
intense as alleged because she was not seeing a specialist. But contemporaneous
evidence indicates that Reichley was under the care of a pain specialist, and she did
attempt to see a rheumatologist. Finally, contrary to the ALJ’s conclusion,
Reichley’s ability to perform household chores for short periods, often with
assistance, is consistent with her testimony that she is unable to sit, stand, or walk
for prolonged intervals without experiencing disabling pain.
As to the medical opinion evidence, physician’s assistant Leary reported that
Reichley suffers from disabling fibromyalgia and other impairments. The ALJ
FILED
MAY 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Page 2 of 2
discounted that opinion on the basis that it was overly reliant on Reichley’s
subjective complaints. But fibromyalgia is diagnosed “entirely on the basis of
patients’ reports of pain and other symptoms.” Benecke v. Barnhart, 379 F.3d 587,
590 (9th Cir. 2004). The ALJ could not permissibly discount Leary’s views on
that ground unless the ALJ provided clear and convincing reasons for finding
Reichley’s symptom testimony not credible. As explained above, the ALJ failed to
do so.
Nor do the ALJ’s reasons for discounting a fibromyalgia questionnaire, co-
signed by Dr. Beach, withstand scrutiny. The ALJ concluded that there were
discrepancies between the limitations the questionnaire assessed and those
Reichley reported. In attempting to defend that conclusion before us, the
Commissioner has identified only one supposed inconsistency: The questionnaire
states that Reichley should alternate positions every 21 to 45 minutes, whereas
Reichley reported that she can sit or stand for a longer period before feeling pain.
It is entirely consistent to say that a patient can stand for an hour or two but should
change position more often.
The improperly weighed evidence, if credited as true, establishes disability.
I would therefore reverse and remand for a computation of benefits.

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