                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 18 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BARBARA ANN RESSLER,                             No.   15-15979

              Plaintiff-Appellant,               D.C. No. 2:13-cv-02471-SPL

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

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Steven Paul Logan, District Judge, Presiding

                       Argued and Submitted March 17, 2017
                            San Francisco, California

Before: WARDLAW and GOULD, Circuit Judges, and SHEA,** District Judge.

      Barbara Ressler appeals the district court’s order affirming the

Commissioner’s denial of Ressler’s application for supplemental security income

under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward F. Shea, United States District Judge for the
Eastern District of Washington, sitting by designation.
      Ressler claimed that disability entitled her to supplemental security income

based on a schizophrenia diagnosis. After performing the five step disability

evaluation set forth in 20 C.F.R. § 416.920, the Administrative Law Judge (ALJ)

concluded that Ressler was not disabled within the meaning of the Social Security

Act because she could perform work available in sufficient quantities in the

national economy. The district court affirmed.

      Ressler asserts that the ALJ committed two errors that require reversal: (1)

the ALJ inappropriately failed to perform a function-by-function analysis as to

residual functional capacity; and (2) the ALJ erred in relying on the

Medical-Vocational Guidelines at Step 5, rather than taking testimony from a

vocational expert.

      We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the

judgment of the district court and remand with instructions to remand to the ALJ

for an award of benefits.

                                         I.

      Ressler’s medical background and relevant facts are known to the parties

and need not be recited here.

                                         II.




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      A district court’s order upholding the Commissioner’s denial of benefits is

reviewed de novo. See Carillo-Yeras v. Astrue, 671 F.3d 731, 734 (9th Cir. 2011).

We will uphold the Commissioner’s decision if it is free of legal error and

supported by substantial evidence. Id.

                                         III.

      The ALJ need not perform a function-by-function analysis for conditions or

impairments that the ALJ “found neither credible nor supported by the record.”

Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In order for this

standard to apply, however, the ALJ must have properly rejected evidence

supported by the record and contained in credible testimony. Here, the ALJ erred

by improperly weighing medical evidence and improperly weighing the testimony

of Ressler and Schindler. Applying the proper analysis, Ressler has significant

nonexertional limitations. The ALJ should have performed a function-by-function

analysis and taken vocational expert testimony.

      The ALJ applied the incorrect standard when rejecting medical evidence.

Our cases clearly hold that an ALJ “must explain why significant probative

evidence has been rejected.” Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393,

1395 (9th Cir. 1984) (internal quotation marks omitted). Our precedent also sets

specific standards for rejecting medical evidence, see Bayliss, 427 F.3d at 1216, in


                                          3
addition to the general “demand that the agency set forth the reasoning behind its

decisions in a way that allows for meaningful review.” Brown-Hunter v. Colvin,

806 F.3d 487, 492 (9th Cir. 2015). This is particularly true when the ALJ accepts

portions of a medical opinion, but rejects other portions of the opinion.

      The ALJ failed to apply these standards. The ALJ explained that he gave

weight to the medical opinions and medical evidence in the record “to the extent

that they are consistent with this decision.” Such a standard is nowhere reflected in

our case law and the ALJ’s application of it constitutes an error of law.

      In addition, the ALJ improperly determined that the testimony of Ressler

and Schindler was not credible. This Court has explained that “impairments that

would unquestionably preclude work and all the pressures of a workplace

environment will often be consistent with doing more than merely resting in bed all

day.” Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). The ALJ relied on

Ressler’s minimal daily activities to determine that the testimony was not credible.

This was improper, as Ressler’s activities did not indicate an ability to work.

Especially given the fact that there was no evidence or claim of malingering, the

ALJ’s explanation for rejecting Ressler’s testimony was insufficient. Burrell v.

Colvin, 775 F.3d 1133, 1136–37 (9th Cir. 2014) (affirming that an ALJ must




                                          4
provide “specific, clear, and convincing reasons” for rejecting a claimant’s

testimony, unless there is evidence of malingering).

      Finally, due to the severe nonexertional limitations reflected by the record

and by the testimony of Ressler and Schindler, the Medical-Vocational Grid

categories did not fully reflect Ressler’s limitations. The ALJ was therefore

required to take testimony from a vocational expert, rather than relying on the

Medical-Vocational Guidelines. Holohan v. Massanari, 246 F.3d 1195, 1208–09

(9th Cir. 2001).

                                           IV.

      As a result of the error discussed above, the application of the credit-as-true

rule is appropriate in this case. That rule requires that:

      (1) the record has been fully developed and further administrative
      proceedings would serve no useful purpose;

      (2) the ALJ has failed to provide legally sufficient reasons for rejecting
      evidence, whether claimant testimony or medical opinion; and

      (3) if the improperly discredited evidence were credited as true, the ALJ
      would be required to find the claimant disabled on remand.

Garrison, 759 F.3d at 1020.

      Here, all three requirements of the credit-as-true rule are satisfied. First,

there is no need to develop the record or convene further proceedings. Although



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the ALJ did not perform a function-by-function analysis, that failure does not

necessarily require remand. See id. at 1021 n.28. Moreover, in response to

questioning by Ressler’s representative, the vocational expert opined that an

individual who would be unable to stay on task for 15 percent of a work day would

be unable to maintain employment. Based on this limited testimony and the

evidence in the record of Ressler’s inability to maintain focus throughout the day,

further proceedings are not required to determine whether Ressler is disabled.

      Second, as explained above, the ALJ failed to apply the proper legal

standard for rejecting medical evidence and testimony.

      Third, if the medical opinions and testimony is weighed appropriately, and if

such evidence is properly credited as true, then in light of the vocational expert’s

testimony the ALJ would be required to make a finding that Ressler was disabled

on remand.

      Finally, there is nothing in the record as a whole that creates serious doubt

about whether Ressler is, in fact, disabled within the meaning of the Social

Security Act.

      Accordingly, the Court remands for a calculation and award of benefits.

      REVERSED and REMANDED.




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