                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHELLE RENEE HURTER,                          No.    16-35236

                Plaintiff-Appellant,            D.C. No. 3:14-cv-05874-KLS

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

                Defendant-Appellee.

                  Appeal from the United States District Court
                     for the Western District of Washington
                 Karen L. Strombom, Magistrate Judge, Presiding

                      Argued and Submitted February 6, 2018
                               Seattle, Washington

Before: FISHER, GOULD, and PAEZ, Circuit Judges.

      Michelle Renee Hurter appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of her application for Supplemental

Security Income benefits under Title XVI of the Social Security Act, 42 U.S.C.

§ 1381 et seq.1 We review de novo the district court’s decision affirming the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1
             We have jurisdiction pursuant to 28 U.S.C. § 1291.
denial of benefits, and may set aside the decision of the administrative law judge

(ALJ) where that decision is based on legal error or where the findings of fact are

not supported by substantial evidence in the record taken as a whole. Tackett v.

Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Applying our “credit-as-true” rule,

Garrison v. Colvin, 759 F.3d 995, 1021–23 (9th Cir. 2014), we reverse the

judgment below and remand this case to the district court with instructions to

remand to the agency for the calculation and award of benefits.

      We hold that the ALJ erred in rejecting the opinions of Hurter’s two treating

physicians, Dr. Enkema and Dr. Palaskas. Treating physicians’ opinions are

entitled to greater weight than those of non-treating physicians because the

“continuing relationship” with a patient uniquely qualifies the treating physician

“to form an overall conclusion as to functional capacities and limitations.” Lester

v. Chater, 81 F.3d 821, 833 (9th Cir. 1995). Where a treating doctor's opinion is

not contradicted by another doctor, it may be rejected only for “clear and

convincing” reasons; the same is required for rejecting a treating doctor’s “ultimate

conclusions” on disability. Id. at 830. Where a treating doctor's opinion is

contradicted by another doctor, the ALJ may not reject this opinion without

providing “specific and legitimate reasons supported by substantial evidence in the

record for so doing.” Id (internal quotation marks omitted).

      We first conclude that the ALJ erred in assigning “no weight” to the opinion


                                          2
of Dr. Palaskas, Hurter’s treating otolaryngologist. Because Dr. Palaskas’ opinion

was uncontradicted as to the disabling impact of Hurter’s Meniere’s disease, the

ALJ was required to provide clear and convincing reasons for rejecting it. This he

failed to do. Several of the ALJ’s reasons were contradicted by the record, such as

his assertion that Hurter’s Meniere’s attacks were “not confirmed” by objective

findings—a pronouncement belied by Hurter’s abnormal audiogram, VNG, and

CDP test results. Where an ALJ’s reason is contradicted by the record, it is not a

“legitimate” reason for rejecting a physician’s opinion, let alone a clear and

convincing one. See Orn v. Astrue, 495 F.3d 625, 634–35 (9th Cir. 2007). The

ALJ also noted that Dr. Palaskas’ opinion was completed on a “check-box form,

which was provided by the claimant’s attorney.” As we have consistently held,

“the purpose for which medical reports are obtained does not provide a legitimate

basis for rejecting them.” Lester, 81 F.3d at 832. Finally, the ALJ made an

unreasonable inference from the description of Hurter’s hearing loss as

“fluctuating,” positing that this “may be some indication that they are not reliable.”

The ALJ failed to recognize that “fluctuating” hearing loss is one of the hallmark

symptoms of Meniere’s disease.2 See SSR 86-8, 1986 WL 68636 at *8


      2
              See, e.g., Meniere’s Disease, Mayo Clinic,
https://www.mayoclinic.org/diseasesconditions/menieres-disease/symptoms-
causes/syc-20374910 (last visited Jan. 25, 2018) (“Meniere’s disease is a disorder
of the inner ear that causes . . . fluctuating hearing loss . . . .” (emphasis added));
Timothy C. Hain, MD, Meniere’s Disease, American Hearing Research

                                           3
(“Reasonable inferences may be drawn, but presumptions, speculations and

suppositions should not be substituted for evidence.”).

      We further conclude that the ALJ failed to provide legally sufficient reasons

for assigning “limited weight” to the opinion of Dr. Enkema, Hurter’s treating

primary care physician. As with Dr. Palaskas, the ALJ’s rejection of Dr. Enkema’s

opinion largely rested on assertions contradicted by the record, which do not

constitute “legitimate” reasons. See Orn, 495 F.3d at 634–35. Moreover, because

the ALJ’s reasoning was “not responsive” to the basis of Dr. Enkema’s opinion, it

did not meet the high bar required to reject his opinion. Id. This error was

particularly serious, because if Dr. Enkema’s opinion limiting Hurter to sedentary

work were credited, the ALJ would be required to find Hurter disabled under the

Medical-Vocational Guidelines. See 20 C.F.R. pt. 404, subpt. P, app. 2, table 1,

Rule 201.12. “Where application of the grids directs a finding of disability, that

finding must be accepted by the Secretary[,] whether the impairment is exertional

or results from a combination of exertional and non-exertional limitations.”

Lounsburry v. Barnhart, 468 F.3d 1111, 1115–16 (9th Cir. 2006) (emphasis and

alterations omitted) (quoting Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir.

1989)).


Foundation (Oct. 2012), http://american-hearing.org/disorders/menieres-disease/
(“Meniere’s disease is a disorder of the inner ear that causes . . . fluctuating
hearing loss.” (emphasis added)).

                                          4
      All three parts of our credit-as-true standard, Garrison, 759 F.3d at 1020–21,

are met here: there would be no useful purpose served by further administrative

proceedings; the ALJ failed to provide legally sufficient reasons for rejecting the

opinions of Dr. Enkema and Dr. Palaskas; and it is clear that the ALJ would be

required to find Hurter disabled on remand if the improperly-discredited medical

opinions were credited as true. We thus opt to credit the opinions of Dr. Enkema

and Dr. Palaskas as true, and we reverse the district court’s judgment and remand

with directions to remand this case to the agency for the calculation and award of

benefits for the period beginning October 16, 2008.3

      REVERSED AND REMANDED.




      3
             Because our conclusion that the ALJ improperly discredited the
opinions of Dr. Palaskas and Dr. Enkema is sufficient to remand for an award of
benefits, we need not address Hurter’s additional arguments.

                                          5
