Ann Penny Baten v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANN PENNY BATEN,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 22-15067
D.C. No. 5:20-cv-07336-SVK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Susan G. Van Keulen, Magistrate Judge, Presiding
Argued and Submitted November 15, 2022
San Jose, California
Before: GRABER, TALLMAN, and FRIEDLAND, Circuit Judges.
Dissent by Judge TALLMAN
Plaintiff Ann Penny Baten appeals the district court’s order affirming an
administrative law judge’s (“ALJ”) decision denying Plaintiff’s claim for disability
insurance benefits and supplemental security income. We review de novo the
district court’s ruling and may set aside the ALJ’s denial of benefits only for legal
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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error or lack of substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th
Cir. 2017). We reverse and remand for further proceedings.
Plaintiff was found disabled, and is receiving benefits, for the period
beginning on May 27, 2017. Plaintiff argues that the ALJ erred in finding that
Plaintiff was not disabled for the period from January 1, 2015, through May 26,
2017.
On July 1, 2015, examining physician Dr. Calvin Pon found that Plaintiff
could stand and/or walk for four to six hours during an eight-hour workday.
Medical consultants Dr. D. Chan and Dr. Joan Bradus later reviewed Plaintiff’s
medical records, including Dr. Pon’s report, and found—without examining
Plaintiff or explaining their conclusion—that Plaintiff could stand or walk for six
hours. The ALJ purported to afford “significant weight” to Dr. Pon’s assessment
because he examined Plaintiff thoroughly. But the ALJ ultimately found that
“prior to May 27, 2017,” Plaintiff could “stand or walk a total of six hours” during
an eight-hour workday.
The ALJ did not explain why Dr. Pon’s assessment that Plaintiff could stand
or walk for “four to six hours” meant “six hours” for the period between July 1,
2015, and May 27, 2017. Dr. Pon’s opinion reflected a range of Plaintiff’s walking
and standing limitations and suggested that there might be times when Plaintiff
could stand or walk for only a maximum of four hours. And we can find no

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explanation in the record or in the ALJ’s decision that would justify totally
precluding the more disabled end of that range in favor of a less restrictive residual
functional capacity (“RFC”). See Moore v. Apfel, 216 F.3d 864, 867 (9th Cir.
2000) (noting that an assessment of “four to six hours” of sitting does not mean
“up to six hours” of sitting and is ambiguous, requiring further analysis and
clarification). The distinction between a four-hour and a six-hour limitation is
critical because the ALJ based the post-May 27, 2017 disability finding on the later
report of examining physician Dr. Emily Cohen, who endorsed the four-hour
figure. Thus, had the ALJ adopted the four-hour limitation based on Dr. Pon’s
assessment, he likely would have found Plaintiff disabled during all or most of the
disputed period.
Relatedly, the ALJ also erred by failing to address the competing opinions of
the medical experts. The ALJ must resolve any conflicts in the medical evidence.
Thomas v. Barnhart, 278 F.3d 947, 956–57 (9th Cir. 2002). In light of the dispute
over Plaintiff’s walking and standing limitations, the ALJ had to provide an
explanation for adopting the opinions of Dr. Chan and Dr. Bradus, who only
reviewed Plaintiff’s medical records, over the opinion of Dr. Pon, who examined
Plaintiff. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (“If a treating
or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ
may only reject it by providing specific and legitimate reasons that are supported

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by substantial evidence.” (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,
1198 (9th Cir. 2008))). Because the ALJ failed to give adequate consideration to
Dr. Pon’s assessment, he erroneously rested the RFC determination on the reports
of non-examining state-agency physicians.
We therefore reverse the district court’s judgment with instructions to
remand the case to the ALJ for further proceedings consistent with this disposition.
See Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir. 2015) (“Where there is
conflicting evidence, and not all essential factual issues have been resolved, a
remand for an award of benefits is inappropriate.” (quoting Treichler v. Comm’r of
Soc. Sec. Admin., 775 F.3d. 1090, 1101 (9th Cir. 2014))).
REVERSED AND REMANDED.

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22-15067—Baten v. Kijakazi
TALLMAN, Circuit Judge, dissenting.
Ann Penny Baten suffers from various degenerative medical conditions. It is
undisputed that in the fall of 2017 Baten severely decompensated and exhibited an
obviously disabled symptomology. Because of the degenerative nature of her
conditions, Baten likely became disabled some time prior to the fall of 2017. Thus,
the ALJ faced the difficult task of searching for objective evidence in the record that
would establish Baten’s disability onset date—i.e., the point at which Baten
exhibited a disabling residual functional capacity (RFC). But Baten was ultimately
“responsible for providing the evidence . . . use[d] to make a finding about [her]
residual functional capacity.” 20 C.F.R. § 404.1545(a)(3) (2022).
The majority reverses and remands this case solely because it believes the ALJ
rejected Dr. Pon’s opinion without explanation. In July 2015, Dr. Pon—who was
not her regular treating physician but rather a consultative agency evaluator—
examined Baten and concluded that she “should be able to stand and/or walk for a
total of 4-6 hours” per day. Later that month, reviewing physician Dr. Chan found
that Baten could stand or walk for “[a]bout 6 hours” per day “with normal breaks”
provided she “[m]ust periodically alternate sitting and standing to relieve pain and
discomfort.” In January 2016, Dr. Bradus, another reviewing physician, made the
same findings after reviewing Baten’s updated records. Thus, the ALJ was faced
FILED
DEC 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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with generally consistent medical opinions with minor differences: Dr. Pon found
that Baten could stand or walk for four to six hours, whereas Drs. Chan and Bradus
found she could stand or walk for up to six hours if permitted breaks and the
opportunity to alternate between standing and sitting.
After an extensive and “careful consideration of the entire record,” including
the above opinions, the ALJ found that Baten was not disabled prior to May 27,
2017. Relevant to the majority’s holding, the ALJ reconciled the scant differences
in the medical opinions by finding that “the record as a whole” established Baten
could “stand or walk a total of six hours in one-hour intervals throughout an eight-
hour workday with normal breaks” prior to the onset date.
In concluding that the ALJ credited Drs. Chan and Bradus’s opinions over Dr.
Pon’s, the majority strains to find inconsistency where there is none. The ALJ never
purported to reject Dr. Pon’s opinion. Rather, the ALJ “considered Dr. Pon’s
assessment,” found it to be “well supported and consistent with the available
evidence during [the relevant] period,” and “afforded it significant weight.”
Glossing over this, the majority essentially concludes that the ALJ must have
rejected Dr. Pon’s opinion because the ALJ found Baten could stand or walk for a
total of six hours instead of Dr. Pon’s four to six hours. But the majority incorrectly
assumes that the opinions of Dr. Chan, Dr. Bradus, and the ALJ are necessarily
inconsistent with Dr. Pon’s opinion.

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The Social Security Administration defines RFC as “the most [a claimant] can
still do despite [their] limitations.” 20 C.F.R. § 404.1545(a)(1) (2022) (emphasis
added). Our cases routinely reaffirm this principle. See, e.g., Zavalin v. Colvin, 778
F.3d 842, 845 (9th Cir. 2015); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d
1090, 1097 (9th Cir. 2014); Berry v. Astrue, 622 F.3d 1228, 1233 (9th Cir. 2010).
Accordingly, it was not error for the ALJ to rely on the upper limit of Dr. Pon’s
estimate. Furthermore, the ALJ’s RFC provided for adequate breaks and frequent
alternation between sitting and standing—something Dr. Pon did not consider. In
this way, the ALJ’s RFC was more restrictive than Dr. Pon’s findings. The ALJ
reasonably reconciled the minor differences between the opinion evidence and
reached an RFC that was most consistent with each of the doctors’ findings and the
record as a whole.1
1 The majority’s reliance on Moore v. Apfel, 216 F.3d 864 (9th Cir. 2000) is
inapposite. In that case, the ALJ contradicted himself by finding the claimant could
sit four to six hours but then inexplicably directed the vocational expert to consider
jobs for individuals able to sit for six hours. Id. at 866. Our review was limited to
whether the ALJ’s clarification that four to six hours meant up to six hours complied
with the district court’s remand order. Id. In holding that the ALJ had complied
with the order on remand, we implicitly concluded that it was reasonable for the ALJ
to clarify that four to six hours also meant up to six hours. Id. at 867. Regardless,
our task in Moore was to determine the purely procedural issue of whether the ALJ
complied with the district court’s remand order; we expressed no opinion as to the
validity of the district court’s underlying logic.

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The ALJ faced the difficult task of determining the precise point in time that
Baten became disabled. This task was made more difficult by significant gaps in
Baten’s medical treatment while she traveled abroad and by her persistent refusal to
take her diabetes seriously and accept the prescribed medications for it. Many of the
symptoms that she alleges indicate an earlier disability onset date were direct
consequences of her own actions contrary to medical advice. See Rounds v. Comm’r
Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (explaining a failure to seek
treatment is relevant to credibility).
I would not add to the ALJ’s task of drawing a line when disability
commenced—that is without question difficult to draw with precision on this
record—by requiring him to readdress an insignificant discrepancy in the record.
We should faithfully adhere to the deferential standard of review the law prescribes
and respect where the line was drawn. I respectfully dissent.

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