                                                                           FILED
                           NOT FOR PUBLICATION
                                                                             DEC 28 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PETE APARICIO,                                   No. 13-17307

              Plaintiff - Appellant,             D.C. No. 2:13-cv-00213-PHX-
                                                 ROS
 v.

CAROLYN W. COLVIN,                               MEMORANDUM*
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Roslyn O. Silver, District Judge, Presiding

                     Argued and Submitted December 11, 2015
                             San Francisco, California

Before: CLIFTON and OWENS, Circuit Judges and SMITH,** Chief District
Judge.

      Plaintiff Pete Aparicio appeals the Social Security Administration’s

determination that he is not disabled. Aparicio first appealed to the United States

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable William E. Smith, Chief District Judge for the U.S.
District Court for the District of Rhode Island, sitting by designation.
District Court for the District of Arizona, which affirmed the agency’s decision.

We have jurisdiction under 28 U.S.C. § 1291, and review the ALJ’s decision de

novo. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). As the parties are familiar

with the facts, we do not recount them here.

      For the reasons that follow, we find that the ALJ erred in rejecting the

opinions of Drs. Kelly and Geary, and in discrediting Aparicio’s testimony;

however, the ALJ did not err in finding that Aparicio failed to meet or equal the

requirements of Listing § 1.04. Because additional development of the record

would be useful in this case, we remand for further administrative proceedings.

      1. “[T]he opinion of a treating physician must be given more weight than the

opinion of an examining physician, and the opinion of an examining physician must

be afforded more weight than the opinion of a reviewing physician.” Ghanim v.

Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014). An ALJ may not reject the opinion of

a treating or examining physician that is uncontradicted without providing “clear

and convincing reasons that are supported by substantial evidence.” Id. (quoting

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). Where the opinion of a

treating or examining physician is contradicted, the ALJ must still provide “specific

and legitimate reasons that are supported by substantial evidence” in order to reject

it. Id. at 1161 (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.

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2008)). Moreover, “[w]hen an examining physician relies on the same clinical

findings as a treating physician, but differs only in his or her conclusions, the

conclusions of the examining physician are not ‘substantial evidence.’” Orn, 495

F.3d at 632.

      Here, the ALJ rejected the opinion of Aparicio’s treating physician, Dr.

Kelly, and instead credited the opinion of Dr. Yaqoob, who examined Aparicio

once. Dr. Kelly submitted three evaluations from December 2010, May 2011, and

July 2011, respectively. The ALJ rejected these evaluations “because they are

inconsistent in their assessments and give no basis for the divergence.”

Specifically, the ALJ noted that the statements gave differing opinions on the

amount of weight Aparicio could lift and carry, and the number of hours he could

sit and stand in a day. We find that this is not a legitimate reason to discredit Dr.

Kelly’s evaluations. Common sense dictates that a patient’s condition would likely

vary over a period of seven months; and indeed, the underlying records support this

interpretation. (describing Aparicio’s pain level as 9/10 in December 2010),

(describing Aparicio’s pain level as 8/10 in May 2011). Moreover, Dr. Yaqoob’s

findings were consistent with Dr. Kelly’s—that Aparicio suffered from “multi-level

disk disease from L1 to L5, congenital narrowing of the spinal canal and spinal

stenosis” it is her conclusions that differed—in particular, her opinion on how long

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Aparicio could sit and stand in a workday. Therefore, Dr. Yaqoob’s opinion cannot

be considered “substantial evidence” to support the ALJ’s rejection of Dr. Kelly’s

opinion. See Orn, 495 F.3d at 632.

      The ALJ further noted that “[a]ll of [Dr. Kelly’s] statements also opined that

the claimant could only use his bilateral hands occasionally, when there is no

objective evidence that he would be so-limited.” We agree; however, this is not a

legitimate reason to reject Dr. Kelly’s opinions on Aparicio’s limitations in sitting

and standing, which are supported by the underlying medical records.

      The ALJ rejected the opinion of Dr. Geary, the state agency’s examining

psychologist—which was uncontradicted—because “Dr. Geary’s statements are

internally contradictory, at one point stating that the claimant’s attention span was

‘adequate’ and that he was ‘able to focus on topics at hand,’ but later opining that the

claimant would have moderate limitations in sustaining concentration, persistence or

pace.” The fact that Aparicio’s attention span in a relatively short exam was

“adequate” does not contradict Dr. Geary’s opinion that he would have trouble

sustaining concentration over the course of a workday. Accordingly, we find that

the ALJ failed to present a clear and convincing reason supported by substantial

evidence, and thus, erred in rejecting Dr. Geary’s opinion.




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      2. Aparicio’s argument that he meets the requirement of Listing § 1.04

(Disorders of the Spine) is without merit. He concedes that “any spinal cord or

nerve root involvement” is “perhaps not clear within the evidence”; however, he

claims that his MRI and other clinical findings contain “much of the evidence” to

show that he “medically equaled” the Listing. Yet he presents no medical evidence

supporting his lay speculation. Accordingly, we find that the ALJ did not err in his

finding that Aparicio fails to meet the requirements of Listing § 1.04.

      3. If a claimant presents “‘objective medical evidence of an underlying

impairment which could reasonably be expected to produce the pain or other

symptoms alleged’ . . . and there is no evidence of malingering, then the ALJ must

give ‘specific, clear and convincing reasons’ in order to reject the claimant’s

testimony about the severity of the symptoms.” Molina v. Astrue, 674 F.3d 1104,

1112 (9th Cir. 2012) (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).

The ALJ gave a number of reasons for rejecting Aparicio’s testimony, none of which

we find clear and convincing.

      The ALJ first noted that Aparicio had poor compliance with his diabetes

regimen and failed to seek mental health treatment. However, neither of these

assertions is probative of his level of back pain. The ALJ then pointed to various

medical records, which he claimed were inconsistent with Aparicio’s stated level of

                                          5
pain. However, a doctor’s “observations must be ‘read in context of the overall

diagnostic picture’ the provider draws.” Ghanim, 763 F.3d at 1162 (quoting

Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)). The ALJ focused on

the fact that the pain specialist’s notes from May 6, 2011 indicate that Aparicio “had

achieved ‘moderate stability’ of his pain symptomology.” Yet those very same

treatment notes indicate that Aparicio’s pain was an 8/10 and qualitatively rated as

“severe.” Moreover, the treatment notes overall consistently reflect severe back

pain that significantly impaired Aparicio’s functioning. Similarly, none of the

doctors’ observations cited by the ALJ—such as the fact that Aparicio could get on

and off a table without discomfort at a doctor’s visit contradict Aparicio’s testimony

that he had to change positions approximately every 30 minutes due to his pain. Nor

are Aparicio’s described daily activities inconsistent with his claimed pain level: he

testified he could do housework, “[b]ut I can never get it all done at one time, you

know. I would have to stop and give it a rest and then continue.” Accordingly, we

find that the ALJ erred in discrediting Aparicio’s testimony.

      4. “Generally when a court of appeals reverses an administrative

determination, ‘the proper course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.’” Benecke v. Barnhart, 379 F.3d

587, 595 (9th Cir. 2004) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per

                                          6
curiam)). However, the Ninth Circuit has held that, in social security cases, where

the ALJ improperly discredited either a claimant or a treating physician’s testimony,

that “it would be an abuse of discretion for a district court not to remand for an

award of benefits when [certain] conditions are met.” Garrison v. Colvin, 759 F.3d

995, 1020 (9th Cir. 2014). Specifically, the “credit-as-true” rule may be applied

where:

      (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.

Id. It is an abuse of discretion to “remand[] for an award of benefits when not all

factual issues have been resolved.” Treichler v. Comm’r of Soc. Sec. Admin., 775

F.3d 1090, 1101 n.5 (9th Cir. 2014). Even if the “credit-as-true” criteria are met, the

court retains the “flexibility” to remand for further proceedings where “an evaluation

of the record as a whole creates serious doubt that a claimant is, in fact, disabled.”

Garrison, 759 F.3d at 1021.

      In this case, there are issues that could benefit from further development of the

record. First, if Dr. Kelly’s opinions are credited, it is still unclear whether Aparcio

would be unable to sustain employment based on the middle assessment of a range



                                           7
of six to eight hours of sitting and standing. The vocational expert (“VE”) only

answered with regard to six hours total; she was not asked about the six to eight hour

range. Thus, this is not a case where “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 (emphasis added). There is an outstanding

factual issue; namely, the total number of hours Aparicio can sit and stand in a day.

If the ALJ determines that Aparicio can only sit and stand for six hours total per day,

then he is disabled based on the VE’s testimony. However, if it is somewhere

between six and eight hours, then additional testimony from the VE is necessary to

determine whether employment is precluded.

      Furthermore, it is not clear from the record whether or not Aparicio could

actually perform the work described by the VE while taking his narcotic pain

medications. Although not mentioned by the ALJ, the treatment notes indicate that

these medications could cause drowsiness and that Aparicio should not take them at

work. This issue could also benefit from development on remand.

      We REVERSE and REMAND for further administrative proceedings in

accordance with this memorandum.

      REVERSED AND REMANDED.




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