                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 29 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL STANDEN,                                No.    17-17386

                Plaintiff-Appellant,            D.C. No. 2:16-cv-01267-EFB

 v.
                                                MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                 Edmund F. Brennan, Magistrate Judge, Presiding

                             Submitted July 25, 2019**

Before: GOODWIN, FARRIS, and LEAVY, Circuit Judges.

      Michael Standen appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of Standen’s application for disability

insurance benefits under Title II of the Social Security Act. We have jurisdiction

under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo. Attmore v.


      *
             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).
Colvin, 827 F.3d 872, 875 (9th Cir. 2016). We vacate and remand for further

proceedings.

      The ALJ erred in failing to consider Dr. Reddy’s post-surgery records and

evaluate the opinions contained therein. See Marsh v. Colvin, 792 F.3d 1170,

1172–73 (9th Cir. 2015) (“an ALJ cannot in its decision totally ignore a treating

doctor and his or her notes”); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.

2008) (“The ALJ must consider all medical opinion evidence.”). Where, if

credited, a medical opinion that the ALJ failed to address could affect the disability

determination, it is “appropriate to vacate the district court’s opinion, remand with

instructions to the district court to remand to the ALJ, and specifically to invite the

ALJ to comment” on the overlooked records. Marsh, 792 F.3d at 1173.

      Because the ALJ expressly limited his consideration of Dr. Reddy’s opinions

to those provided prior to Standen’s surgery, we reject the Commissioner’s

argument that the ALJ adequately considered Dr. Reddy’s post-surgery records and

provided legitimate reasons for discounting them. We likewise reject the

Commissioner’s argument that, by not challenging the ALJ’s assessment of other

medical opinion evidence, Standen has waived any challenge to the ALJ’s failure

to consider Dr. Reddy’s opinions.

      We also reject the Commissioner’s assertion that Dr. Reddy’s post-surgery

records support the ALJ’s findings and any error was thus harmless. Dr. Reddy’s


                                           2
post-surgery records include the opinion that Standen could return to work but with

“[n]o lifting greater than 10-15 pounds.” This opinion is inconsistent with the

ALJ’s RFC finding that Standen could perform “light work,” including lifting up to

twenty pounds. See 20 C.F.R. § 404.1567(b). Because Dr. Reddy’s opinion is

inconsistent with the ALJ’s RFC finding, we cannot “confidently conclude” that

the error was harmless. Marsh, 792 F.3d at 1173.

      The ALJ gave specific and legitimate reasons for assigning little weight to

treating physician Dr. Smith’s opinion that Standen was completely disabled. See

Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). The ALJ properly

considered the consistency of Dr. Smith’s RFC assessment with the record, 20

C.F.R. § 404.1527(c)(4), and the ALJ’s decision reflects consideration of the

Trevizo factors, including Dr. Smith’s specialization and the nature and length of

the treatment relationship. See Trevizo, 871 F.3d at 675 (citing 20 C.F.R.

§ 404.1527(c)(2)–(6)).

      The ALJ did not err in failing to consider the side effects of Standen’s

medications because Standen failed to produce “evidence of side effects severe

enough to interfere with [his] ability to work.” Osenbrock v. Apfel, 240 F.3d 1157,

1164 (9th Cir. 2001).

      VACATED AND REMANDED.




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