                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 15 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MARJORIE EDITH WHEATLEY,                        No.    15-35632

                Plaintiff-Appellant,            D.C. No. 2:15-cv-00059-MAT

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

                Defendant-Appellee.

                  Appeal from the United States District Court
                    for the Western District of Washington
                 Mary Alice Theiler, Magistrate Judge, Presiding

                          Submitted December 11, 2017**


Before:      THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
Judges

      Marjorie Wheatley appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of Wheatley’s application for social

security disability insurance benefits under Title II of the Social Security Act. We


      *
             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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ghanim v. Colvin,

763 F.3d 1154, 1159 (9th Cir. 2014), and we reverse and remand for further

proceedings.

      The ALJ failed to provide specific and legitimate reasons for assigning little

weight to Dr. Overman’s opinion. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir.

2014) (noting that the ALJ must make findings setting forth specific and legitimate

reasons in order to reject the contradicted opinion of a treating physician).

Because Dr. Overman examined Wheatley and administered an ultrasound test, he

did not rely “solely” on Wheatley’s subjective complaints to support his functional

assessments, diagnoses and other findings, so the ALJ’s characterization of the

extent of his reliance is error. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199–

1200 (9th Cir. 2008). It is not clear if Dr. Overman’s opinion regarding

Wheatley’s limitations in 19 out of 20 activities of daily living came from

Wheatley’s report, as the ALJ found, or whether Dr. Overman came to this

conclusion on his own. Dr. Overman also does not specify the activities of daily

living, so the ALJ cannot assume that these particular activities conflicted with her

self-reports. This is further error.

      The ALJ gave specific and legitimate reasons for assigning only “little to no

weight” to the opinion of Dr. Neiman because his opinion was inconsistent with

the medical evidence and her reported activities. Thomas v. Barnhart, 278 F. 3d


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947, 957 (9th Cir. 2002); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)

(affirming ALJ’s finding that fibromyalgia plaintiff’s allegations of disabling pain

were undermined by plaintiff’s daily activities).

      The ALJ erred in giving little weight to Mr. Wheatley’s lay testimony

because he actually based his testimony on his own observations rather than

Wheatley’s subjective complaints. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir.

2009) (holding that the ALJ gave inadequate reasons for rejecting wife’s lay

opinion testimony).

      Although the ALJ erred in evaluating Dr. Overman’s opinion and Mr.

Wheatley’s lay testimony, it is not clear from the administrative record that the

ALJ would otherwise be required to award benefits. Treichler v. Comm’r Soc. Sec.

Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (“Where there is conflicting evidence,

and not all essential factual issues have been resolved, a remand for an award of

benefits is inappropriate.”). Accordingly, we remand for further proceedings.

      REVERSED and REMANDED.




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