NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIE MATHEWS, 

Plaintiff-Appellant, 

 v. 

ANDREW M. SAUL, Commissioner of 

Social Security, 

Defendant-Appellee.

No. 18-35376

D.C. No. 1:16-cv-03196-FVS

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

Fred L. Van Sickle, District Judge, Presiding

Argued and Submitted July 8, 2019

Seattle, Washington

Before: WATFORD and MILLER, Circuit Judges, and BENITEZ, ** District 

Judge.

Marie Mathews appeals from the district court’s judgment affirming the 

decision of the administrative law judge (ALJ) denying Mathews’ application for 

Social Security disability benefits. Because the ALJ did not provide clear and 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Roger T. Benitez, United States District Judge for the 

Southern District of California, sitting by designation. 

FILED

JUL 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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convincing reasons to discredit Mathews’ testimony or adequate reasons to 

discount Dr. Waber’s December 2013 and January 2015 medical reports, we

reverse and remand for an award of benefits.

1. The ALJ did not provide “specific, clear and convincing reasons” to 

discredit Mathews’ testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 

2014). The Commissioner wisely does not attempt to defend several of the reasons 

offered by the ALJ, which are plainly not supported by the record. The ALJ’s 

remaining reasons are not adequately supported by the record either. First, the ALJ 

found that Mathews’ complaints of pain exceeded what one would expect given 

the objective medical evidence. But the medical records show that Mathews’

chronic edema, extensive osteoarthritis, and shortened left leg have in fact caused

her severe ankle, knee, leg, and back pain, which has worsened over time. 

Accordingly, Dr. Waber repeatedly increased Mathews’ prescribed pain 

medication after her amended onset date, an objective fact reflected in the medical 

record that bolsters Mathews’ testimony that her pain increased over time. 

Second, the ALJ stated that Mathews’ “impairments were present at 

approximately the same level of severity prior to the amended onset date,” but that 

they did not prevent Mathews from working then. However, even if Mathews’

physical impairments were the same before and after her amended onset date, the 

record supports Mathews’ testimony that the pain caused by those impairments 
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increased over time. Thus, Mathews’ ability to work before her amended onset 

date is not a clear and convincing reason to discredit her testimony.

Third, the ALJ asserted that Mathews’ failure to receive additional treatment 

for her pain meant that Mathews’ pain was less severe than she claimed. 

Mathews explained that she could not afford more treatment because she lacked 

medical insurance. Mathews had previously applied for state-sponsored medical

insurance but was denied because her husband had too many assets. The ALJ 

asserted that Mathews’ failure to reapply for state-sponsored medical insurance 

after the Affordable Care Act was enacted belied her explanation. But as Mathews 

points out, the ALJ appears to have relied on the unsupported assumption that 

Mathews would be eligible for federal insurance assistance. Therefore, Mathews’ 

failure to reapply for state-sponsored medical insurance “even when it became 

more available for those with financial difficulties” is not a clear and convincing 

reason to discredit her pain testimony. 

Fourth, the ALJ noted that Mathews told Dr. Waber in November 2013 that 

any job she could perform “would have to be something where she did not have to 

be on her feet all the time” and would have to allow her to lie down. The ALJ 

found this statement consistent with the ability to perform sedentary work. But 

Mathews’ statement to Dr. Waber is not in conflict with Dr. Waber’s ultimate 

assessment of Mathews’ limitations—that she must lie down multiple times per 
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day for up to an hour at a time with her legs elevated, and that she would miss four 

or more days of work per month. 

Fifth, the ALJ erred in concluding that Mathews’ daily living activities are 

inconsistent with Mathews’ stated need to lie down periodically during the day to 

relieve her leg, foot, and back pain. None of the activities the ALJ mentioned—

e.g., doing laundry and washing dishes while seated, driving up to eight miles, 

walking for more than thirty minutes while grocery shopping, and occasionally 

taking care of her grandchildren—conflicts with Mathews’ stated need to lie down 

and elevate her leg throughout the day. 

2. The parties dispute whether the ALJ needed to provide “clear and 

convincing” or “specific and legitimate” reasons to discount Dr. Waber’s 

December 2013 and January 2015 reports. We need not resolve this dispute 

because the ALJ’s reasons are inadequate under either standard. Because the ALJ 

erred in finding Mathews’ testimony not credible, the ALJ similarly erred in

discounting Dr. Waber’s medical reports based on Mathews’ pain testimony. 

The ALJ stated that Dr. Waber’s December 2013 and January 2015 reports

were internally inconsistent because Dr. Waber “checked the box for ‘unable to 

stand and/or walk’ but then hand-wrote that the claimant was ‘unable to stand or 

walk for long distances or prolonged time.’” Dr. Waber’s December 2013 and 

January 2015 reports are preprinted forms that Dr. Waber filled out, which state his 
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opinion that Mathews cannot perform even sedentary work. The reports provide 

five check boxes that correspond to a claimant’s ability to perform work. The first 

four options indicate that a claimant can perform heavy, medium, light, or 

sedentary work, respectively, none of which Mathews can perform. The only 

remaining check box is labeled: “Severely limited: Unable to lift at least 2 pounds 

or unable to stand and/or walk.” Dr. Waber checked this box because it is the only 

one consistent with his opinion that Mathews cannot perform even sedentary work. 

He then clarified in his hand-written notes that Mathews is able to stand and walk, 

just not for prolonged periods of time. There is nothing internally inconsistent

within the reports. 

The ALJ stated that the limitations in the December 2013 and January 2015 

medical reports were more restrictive than those identified in Dr. Waber’s earlier

medical opinions, despite no objective evidence of worsening. The record does not 

support the ALJ’s conclusion. Dr. Waber’s notes indicate that Mathews’ pain had 

in fact increased over time. Dr. Waber has been Mathews’ treating physician for 

over a decade, and nothing contradicts his assessment of Mathews’ level of pain. 

3. When fully credited, Dr. Waber’s December 2013 and January 2015 

medical reports—which conclude that Mathews must lie down multiple times per 

day for up to an hour at a time with her legs elevated, and that she would miss four 

or more days of work per month—compel a finding that Mathews is disabled. See 
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Garrison v. Colvin, 759 F.3d 995, 1022 (9th Cir. 2014). Therefore, we reverse the 

district court’s judgment and remand for an award of benefits. See id. at 1020. 

REVERSED and REMANDED.