                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                             FILED
                            FOR THE NINTH CIRCUIT
                                                                              SEP 28 2017
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
DEBRA L. ROSS,                                   No.    15-35173

              Plaintiff-Appellant,               D.C. No. 6:13-cv-01129-TC

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

              Defendant-Appellee.


                   Appeal from the United States District Court
                             for the District of Oregon
                   Michael J. McShane, District Judge, Presiding

                          Submitted September 26, 2017**
                             San Francisco, California

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.

      Debra Ross appeals the district court’s decision affirming the Commissioner

of Social Security’s denial of Ross’s application for disability insurance benefits


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and supplemental security income under Titles II and XVI of the Social Security

Act. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.

      Ross contends that the administrative law judge (“ALJ”) erred (1) in failing

to discuss the opinion or treatment notes of Michael D. Geurin, M.D., who was

Ross’s treating physician during the relevant period; (2) in improperly rejecting her

testimony about her fatigue, pain, and ability to sustain activity for a full work day;

(3) in rejecting a lay witness statement provided by her co-worker; and (4) in

failing to pose a complete hypothetical to the vocational expert. We agree.

      1.     It is undisputed that the ALJ did not mention Dr. Geurin by name or

discuss his treatment of Ross or his opinion about the nature and source of Ross’s

physical symptoms. The ALJ’s failure to mention this treating physician’s opinion

letter or any of his treatment notes constitutes legal error. See Smolen v. Chater, 80

F.3d 1273, 1285 (9th Cir. 1996).

      Although Dr. Geruin requested (through Ross’s former counsel) that the

ALJ’s decision not quote from Dr. Geruin’s letter or, alternatively, the ALJ refrain

from attributing the letter’s contents to Dr. Geruin, Ross did not “invite the [ALJ’s]

error and relinquish a known right.” United States v. Lindsey, 634 F.3d 541, 555

(9th Cir. 2011) (citing United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997)).

The request did not relieve the ALJ of the obligation to follow the agency’s own


                                           2
regulations, which require the evaluation of “every medical opinion” submitted

into evidence. 20 C.F.R. §§ 404.1527(c), 416.927(c).

      2.     The ALJ failed to provide “specific, clear and convincing reasons”

supported by substantial evidence for finding Ross’s testimony about the severity

of her fatigue and pain not credible. Garrison v. Colvin, 759 F.3d 995, 1015 (9th

Cir. 2014). First, although a claimant’s favorable “response to conservative

treatment” and use of only over-the-counter pain medication can be sufficient to

discount a claimant’s testimony regarding the severity of her symptoms,

Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Parra v. Astrue, 481

F.3d 742, 751 (9th Cir. 2007), the ALJ’s reasoning regarding Ross’s symptom

testimony is undermined by his failure to discuss or assign any weight to Dr.

Geurin’s treatment records and opinion. Second, the ALJ failed to identify specific

symptom testimony the ALJ found to be inconsistent with Ross’s reported

activities of daily living, see Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir.

2001) (“[T]he ALJ must specifically identify the testimony she or he finds not to

be credible and must explain what evidence undermines the testimony.” (citing

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)), and the symptom testimony

the ALJ mentioned did not contradict Ross’s own account of her activities of daily

living, Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Third, Ross’s failure to


                                          3
heed medical advice to stop smoking provides, at most, a tenuous basis for

discounting her testimony about the severity of her pain and fatigue. See Bray v.

Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). Finally,

because the ALJ failed to provide other specific, clear and convincing reasons

sufficient to discount Ross’s testimony about her fatigue and pain, a lack of

supporting medical evidence cannot provide the sole basis for discounting that

symptom testimony. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).

      3.     The ALJ summarized Sherman’s lay witness testimony as “consistent

with the claimant’s allegations,” but failed to provide specific clear and convincing

reasons for discounting Ross’s symptom testimony. Thus, the ALJ’s failure to

provide germane reasons for discounting Sherman’s lay witness testimony is error.

See Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (explaining that an ALJ

must give germane reasons in order to discount competent lay witness testimony).

      4.     Because the ALJ committed reversible error in failing to discuss

Ross’s treating physician and failed to provide legally sufficient reasons for

discounting Ross’s symptom testimony and the lay witness statement from Ross’s

co-worker, it follows that the hypothetical the ALJ posed to the vocational expert is

potentially flawed due to a failure to include the limitations assessed by Dr. Geurin

and described by Ross and her co-worker. Cf. Bray, 554 F.3d at 1228 (“If an


                                          4
ALJ’s hypothetical does not reflect all of the claimant’s limitations, then the

expert’s testimony has no evidentiary value to support a finding that the claimant

can perform jobs in the national economy.” (internal quotation marks and citation

omitted)).

      Accordingly, we remand to the district court with instructions to remand to

the ALJ for further proceedings on an open record. See Burrell v. Colvin, 775 F.3d

1133, 1141–42 (9th Cir. 2014) (reversing where neither the ALJ’s rejection of a

physician’s opinion nor the ALJ’s discounting of the claimant’s symptom

testimony was supported by substantial evidence, and remanding on an open

record because “the record as a whole create[d] ‘serious doubt’ as to whether [the]

[c]laimant [wa]s, in fact, disabled”).

      REVERSED and REMANDED.




                                           5
