                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             NOV 30 2016
                       UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


STACEE KENSLER BAXLA,                             No. 14-17222

              Plaintiff-Appellant,                D.C. No. 2:13-cv-00733-BSB

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

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Bridget S. Bade, Magistrate Judge, Presiding

                       Argued and Submitted November 14, 2016
                               San Francisco, California

Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.

      Stacee Baxla appeals from the district court’s order affirming the ALJ’s

denial of disability benefits. We affirm in part, reverse in part, and remand for

further proceedings.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1.     Subjective medical symptom testimony. The ALJ provided three

legally sufficient reasons, each supported by substantial evidence in the record, for

rejecting Baxla’s subjective medical symptom testimony regarding the intensity,

persistence, and limiting effects of her syncope condition: (1) the claimant failed to

comply with her prescribed course of treatment; (2) the claimant’s treating

neurologist expressed skepticism that she experienced daily syncope episodes; and

(3) the claimant’s daily activities were inconsistent with her allegation that she

experienced daily syncope episodes. See Rounds v. Commissioner, 807 F.3d 996,

1006 (9th Cir. 2015). As the district court correctly observed, although the ALJ’s

adverse credibility determination erred on various other grounds, these errors were

harmless and do not warrant reversal here. See Carmickle v. Commissioner, 533

F.3d 1155, 1162 (9th Cir. 2008). The ALJ did not err when evaluating Baxla’s

subjective medical symptom testimony.

      2.     Medical opinion evidence from Dr. Al-Zubaidi. When making

disability determinations, the ALJ is not required to accept as true limitations

raised in hypothetical questions when the limitations are not supported by evidence

in the record. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). Here,

Baxla’s hypothetical question to the vocational expert assumed that the claimant

would experience syncope episodes that lasted for approximately thirty-to-sixty


                                           2
minutes. However, Dr. Al-Zubaidi rendered no medical opinion regarding the

duration of the claimant’s syncope episodes and its effect on her ability to perform

work in the national economy. The only record evidence regarding the duration of

the claimant’s syncope episodes came from her testimony at the administrative

hearing, which the ALJ determined was not credible. Dr. Al-Zubaidi opined only

that, because the claimant fainted twice per week, she was precluded from working

around heights or machinery. The ALJ expressly incorporated this limitation into

his residual functional capacity assessment, and therefore did not err when

evaluating Dr. Al-Zubaidi’s medical opinion.

      3.     Medical opinion evidence from Dr. Robicheau. The ALJ

acknowledged the opinion of Dr. Robicheau, a nonexamining psychologist, that

Baxla should be limited to simple, repetitive tasks. Her assessment identified

several specific items as to which she concluded that Baxla was moderately

limited. The ALJ reached a different conclusion, however, specifically that the

“evidence better supports limitations in interaction with others than limitations to

simple, repetitive tasks.” Because the ALJ’s residual functional capacity

assessment conflicted with the assessment of Dr. Robicheau regarding Baxla’s

moderate work-related mental limitations, the ALJ was required to provide an

explanation for rejecting Dr. Robicheau’s medical opinion. See Social Security


                                           3
Ruling 96-8p, 1996 WL 374184, at *7 (July 2, 1996). The ALJ was also required

to support his explanation with reference to substantial evidence from the medical

record. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014); Sousa v. Callahan,

143 F.3d 1240, 1244 (9th Cir. 1998). The ALJ failed to provide a legally sufficient

reason, supported by substantial evidence in the medical record, for rejecting Dr.

Robicheau’s opinion. That error was not necessarily harmless because Dr.

Robicheau’s medical opinion, if credited, could have affected the ALJ’s disability

determination. The vocational expert testified that an individual with the moderate

work-related mental limitations identified by Dr. Robicheau could not perform the

claimant’s past relevant work as a hand packager. See Marsh v. Colvin, 792 F.3d

1170, 1173 (9th Cir. 2015).

      4.     Remand for further proceedings. Baxla is not entitled to the

immediate award of benefits under the credit-as-true rule. The disputed evidence,

even if credited as true, did not necessarily establish that the claimant would be

entitled to benefits. See Garrison, 759 F.3d at 1020. We therefore instead remand

for further proceedings not inconsistent with this memorandum disposition.

      Each party to bear its own costs.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




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