                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 5 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ALICIA ROCHA,                                   No.    18-35270

                Plaintiff-Appellant,            D.C. No. 1:17-cv-03034-MKD

 v.
                                                MEMORANDUM*
NANCY A. BERRYHILL, Commissioner of
Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                   Mary K. Dimke, Magistrate Judge, Presiding

                       Argued and Submitted May 15, 2019
                              Seattle, Washington

Before: W. FLETCHER and BENNETT, Circuit Judges, and SILVER,** District
Judge.

      Alicia Rocha appeals the district court’s grant of summary judgment

affirming the administrative law judge’s (ALJ) denial of her application for

disability insurance benefits and supplemental security income under the Social


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.
Security Act. We have jurisdiction under 28 U.S.C. § 1291, and we reverse the

district court’s summary judgment and remand with instructions to remand to the

Commissioner for further administrative proceedings consistent with this

disposition.

      “We review the district court’s order affirming the ALJ’s denial of social

security benefits de novo and reverse only if the ALJ’s decision was not supported

by substantial evidence in the record as a whole or if the ALJ applied the wrong

legal standard.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (citations

omitted). Additionally, we may not reverse if the error was harmless. Id. at 1111.

      The ALJ in this case reversibly erred in giving no weight to the opinion of

Rocha’s treating psychologist, L. Paul Schneider, PhD. The opinions of “treating

sources,” like Dr. Schneider are typically “give[n] more weight” than the opinions

of, for example, physicians who have not treated the claimant. 20 C.F.R.

§§ 404.1527(c)(2), 416.927(c)(2); see Smolen v. Chater, 80 F.3d 1273, 1285 (9th

Cir. 1996). An ALJ may reject a treating source’s uncontroverted opinion if the

ALJ gives “clear and convincing” reasons. Smolen, 80 F.3d at 1285. “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

by substantial evidence.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th

Cir. 2008) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)).


                                         2
      Here, the ALJ’s two reasons for rejecting Dr. Schneider’s opinion are not

legitimate reasons supported by substantial evidence. First, the ALJ’s conclusion

that Dr. Schneider’s opinion conflicted with his initial evaluation of Rocha in 2014

is based on an erroneous assumption that the limitations expressed in his opinion

were attributed only to anxiety and depression. The ALJ overlooked, however, Dr.

Schneider’s conclusion that Rocha suffers from pain disorder, and consequently

failed to consider whether the limitations expressed in Dr. Schneider’s opinion

were consistent with his diagnosis of pain disorder. Second, that Rocha “presented

with an appropriate mood and affect and normal insight and judgment” at two

appointments has no apparent bearing on whether her diagnosed pain disorder

could cause the limitations expressed in Dr. Schneider’s opinion. Further,

rejecting the opinion of a treating source based on two cursory observations by

doctors who did not assess Rocha’s mental impairments falls short of the

substantial evidence standard.

      The district court held that the ALJ did not err in rejecting Dr. Schneider’s

opinion because “[a]s the ALJ found, Dr. Schneider’s treatment records are devoid

of examination findings supporting the degree of psychologically-based functional

limitation set forth in his opinion.” While this reason identified by the district

court may be legitimate and supported by substantial evidence, it was not a reason

provided by the ALJ. It is improper for a district court to uphold an ALJ’s


                                           3
determination based on findings not discussed by an ALJ. See Connett v.

Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

      It is unclear how much weight, if any, should be given to Dr. Schneider’s

opinion, including because his opinion is ambiguous as to the extent his

conclusions were based on Rocha’s pain disorder. In light of this ambiguity, and

the lack of evidence regarding the symptoms and limitations related to Rocha’s

pain disorder, we are unable to conclude that the ALJ’s error in rejecting Dr.

Schneider’s opinion was harmless. Accordingly, we remand this case for further

administrative proceedings to develop the record with regard to Rocha’s pain

disorder and for the ALJ to reconsider the appropriate weight, if any, to give Dr.

Schneider’s opinion.1 See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d

1090, 1101 (9th Cir. 2014).

      We further conclude that the ALJ incorrectly applied a presumption of non-

disability because the record clearly shows that Rocha raised new issues that were

not considered in her prior application, including pain disorder, increased obesity,

and degenerative changes in her hip and hip pain. See Lester v. Chater, 81 F.3d

821, 827 (9th Cir. 1995). The ALJ also erred by failing to consider Rocha’s

diagnosed pain disorder at step two of the five-step sequential evaluation. See 20


1
 We note that, on remand, the ALJ may need to reconsider other portions of his
decision that might be affected both by further development of the record and by
affording Dr. Schneider’s opinion any appropriate weight.

                                          4
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These errors should be corrected

by the ALJ on remand.2

      REVERSED AND REMANDED, with instructions.




2
  Rocha also argues that the ALJ erred in assessing the credibility of her symptom
testimony. While we do not reach this issue because Rocha’s credibility may have
to be reassessed in light of this disposition, we remind the agency that an ALJ must
“specifically identify the testimony [from a claimant] she or he finds not to be
credible and . . . explain what evidence undermines the testimony.” Treichler, 775
F.3d at 1102 (emphasis added) (quoting Holohan v. Massanari, 246 F.3d 1195,
1208 (9th Cir. 2001)).

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