                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                              FOR THE NINTH CIRCUIT                           MAR 21 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

JODI C. PIERCE,                                 No. 12-35788

              Plaintiff - Appellant,            D.C. No. 1:11-cv-00105-RFC

       v.
                                                MEMORANDUM*
CAROLYN W. COLVIN,

              Defendant - Appellee.

                   Appeal from the United States District Court
                           for the District of Montana
                Richard F. Cebull, Senior District Judge, Presiding

                      Argued and Submitted February 3, 2014
                               Seattle, Washington

Before: FISHER, GOULD and CHRISTEN, Circuit Judges.

      Jodi C. Pierce appeals the district court’s grant of summary judgment in

favor of the Commissioner of the Social Security Administration, upholding the

denial of her application for disability insurance benefits and supplemental security

income. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and

reverse and remand in part.


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     The ALJ articulated germane reasons for giving little weight to the

opinion of Pierce’s counselor, Timothy Dove. See Molina v. Astrue, 674 F.3d

1104, 1111 (9th Cir. 2012). The ALJ adopted the opinion of the medical expert

because she was the only acceptable medical source who reviewed Pierce’s entire

medical record. The ALJ permissibly rejected Dove’s opinion because it was

inconsistent with Dove’s treatment notes and care plan and because its extreme

characterization of Pierce’s limitations was not supported by the medical record.

See id. at 1112; Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir.

2010). Pierce’s inability to afford alternative mental health treatment does not

invalidate this conclusion.

      2.     The ALJ did not give sufficiently specific, clear and convincing

reasons for discrediting Pierce’s testimony regarding the number of days she is

debilitated by depression or a manic episode. See Robbins v. Soc. Sec. Admin., 466

F.3d 880, 883 (9th Cir. 2006). Her testimony that she is debilitated several days

per month would, if credited, establish that she is disabled. The ALJ apparently

rejected this testimony because it was not supported by the medical record, but an

ALJ may not disregard a claimant’s testimony on this basis when the testimony

concerns the severity of symptoms that her underlying impairment could

reasonably be expected to cause. See id. at 883-84. The other reasons the ALJ


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offered also were not sufficiently specific to Pierce’s testimony regarding the

severity of this symptom. See Vasquez v. Astrue, 572 F.3d 586, 591-92 (9th Cir.

2009). We decline to apply the “credit-as-true” rule in this case and reverse and

remand with instructions to remand to the agency for further determinations on an

open record regarding how often Pierce is debilitated by depression or a manic

episode. See Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). The ALJ

may take more evidence if it would be useful, but is not required to do so.

      3.     The remainder of the ALJ’s adverse credibility determination is

affirmed.

      Each party shall bear its own costs on appeal.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




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