                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 20 2013

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

THAVIN OM,                                       No. 11-17618

              Plaintiff - Appellant,             D.C. No. 3:10-cv-03874-EDL

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                 Elizabeth D. Laporte, Magistrate Judge, Presiding

                     Argued and Submitted November 7, 2013
                            San Francisco, California

Before: REINHARDT and WATFORD, Circuit Judges, and LYNN, District
Judge.**

       The administrative law judge (ALJ) erred in denying Thavin Om disability

benefits. The ALJ’s denial of benefits turned on his finding that Om was not


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Barbara M. G. Lynn, District Judge for the U.S.
District Court for the Northern District of Texas, sitting by designation.
                                                                             Page 2 of 5
credible and his related rejection of Dr. Gracer’s and Dr. D’Souza’s medical

opinions. The ALJ failed to provide clear and convincing reasons for finding Om

not credible, see Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007),

and thus, the ALJ lacked a permissible basis for rejecting the opinions of her

treating and examining sources.

        The ALJ provided five main reasons for his adverse credibility finding:

(1) perceived inconsistencies regarding Om’s English proficiency; (2) Om’s ability

to perform some housework and interact with others; (3) the CDIU’s observations;

(4) Dr. McGee’s opinion that Om gave inconsistent effort during a consultative

examination; and (5) Om’s failure to seek ongoing mental-health treatment after

2006.

        We agree with the district court that the first two reasons are not clear and

convincing. Om’s limited English proficiency was consistent with the functional

report she filed, and her ability to read a single pill bottle, at best, marginally

conflicts with her stated inability to read English. Similarly, and as the district

court observed, Om’s ability to perform some chores and interact with others is not

inconsistent with her disability. Disability claimants “should not be penalized for

attempting to lead normal lives in the face of their limitations.” Reddick v. Chater,

157 F.3d 715, 722 (9th Cir. 1998).
                                                                         Page 3 of 5
      The remaining three reasons the ALJ gave for his adverse credibility finding

also are not clear and convincing. First, the CDIU’s observations were generally

consistent with Om’s description of her limitations, and Om’s seeming lack of

emotional or physical problems during her brief interview does not conflict with

her claimed disability. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).

Indeed, Om readily admitted during her testimony that her energy level and mood

fluctuate throughout the day. And the ability to remain composed for a mere

twenty-five minutes does not indicate Om could navigate “the more grueling

environment of the workplace.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989);

cf. Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984).

      Second, Dr. McGee’s observation that Om gave inconsistent effort during a

consultative examination was not sufficient to discount Om’s credibility. It is true

that Dr. McGee “[did] not feel comfortable making any definitive statements about

[Om’s] cognitive ability to work.” But Dr. McGee did not directly question Om’s

credibility or find that she was malingering, and Dr. McGee diagnosed Om with a

depressive disorder. Moreover, Om, herself, and her treating and examining

sources acknowledge she has difficulty concentrating, potentially explaining her

inconsistent testing performance. Discounting Om’s credibility based on Dr.

McGee’s equivocal evaluation is particularly unconvincing because two other
                                                                         Page 4 of 5
medical sources agreed that Om exhibited symptoms of depression and PTSD. See

Reddick, 157 F.3d at 723.

      Third, Om’s failure to seek ongoing mental-health treatment after 2006 does

not serve to discredit her testimony. As a threshold matter, “it is a questionable

practice to chastise one with a mental impairment for the exercise of poor

judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th

Cir. 1996) (internal quotation marks omitted). Further, Om remained on

psychotropic drugs through at least mid-2008. Even when she was in treatment,

Dr. Gracer noted that she struggled to remember appointments, potentially

explaining her failure to continue treatment.

      In short, considered together, the ALJ’s reasons for finding Om not credible

do not rise to the level of clear and convincing. As such, his adverse credibility

finding was not supported by substantial evidence.

      Given that Om should have been found credible, it follows that the ALJ also

erred by rejecting Dr. Gracer’s and Dr. D’Souza’s opinions. The ALJ rejected

their opinions because they were based primarily on Om’s statements, which the

ALJ found not credible, rather than on a rigorous analysis of her symptoms. But

Om’s statements were credible, and both Dr. Gracer and Dr. D’Souza discussed
                                                                          Page 5 of 5
Om’s specific symptoms and cited the relevant sections of the DSM-IV in making

their diagnoses.

      In light of our rulings above, it is clear from the record that the ALJ would

be required to find Om disabled at step 5 on remand, notwithstanding her failure to

attend two consultative examinations on the advice of counsel. Once her testimony

and her medical sources’ opinions are properly credited, the record makes clear

that Om cannot engage in substantial gainful activity that exists in “significant

numbers” in the national economy. Reddick, 157 F.3d at 728–29; see Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1202 (9th Cir. 2008). Thus, we reverse the

decision of the district court and remand with instructions to remand to the

Commissioner for a calculation of benefits. See Orn, 495 F.3d at 640.

      REVERSED and REMANDED.
