                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               JAN 10 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SHIRLEY A. MARTINEZ,                             No.   17-17024

              Plaintiff-Appellant,               D.C. No. 2:15-cv-02651-CMK

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

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Craig Kellison, Magistrate Judge, Presiding

                          Submitted December 19, 2018**
                             San Francisco, California

Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges.

      Shirley Martinez appeals the district court’s decision affirming the

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

insurance benefits and supplemental security income under Titles II and XVI of the

      *
             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).
Social Security Act. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.

§ 405(g), and we reverse.

      We review a district court’s order affirming the Social Security

Commissioner’s denial of benefits de novo. Trevizo v. Berryhill, 871 F.3d 664,

674 (9th Cir. 2017) (citing Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.

2015)).

      1.     The administrative law judge (ALJ) determined that Martinez has

several impairments, including neuropathy in her feet, obstructive sleep apnea, and

migraine headaches.1 The main legal dispute is over the ALJ’s treatment of

Martinez’s testimony regarding the intensity, persistence, and limiting effects that

these impairments generated. The general rule is that “[w]hile an ALJ is

responsible for determining the credibility of a claimant,” Holohan v. Massanari,

246 F.3d 1195, 1208 (9th Cir. 2001), “[g]eneral findings are insufficient; . . . the

ALJ must identify what testimony is not credible and what evidence undermines



      1
        Specifically, the ALJ determined that Martinez has “the following
medically severe combination of impairments: exogenous obesity, insulin
dependent diabetes mellitus with mild peripheral neuropathy, probable coronary
artery disease with ischemia, gastroesophageal reflux disease, obstructive sleep
apnea, right hip trochanteric bursitis, osteoarthritis, anemia, peptic ulcer disease[,]
gastritis, major depressive disorder, recurrent, moderate to severe, post-traumatic
stress disorder, pain disorder associated with psychological factors and general
medical condition, a history of hiatal hernia, migraine headaches, and gout.”
                                            2
the claimant’s complaints,” Brown-Hunter, 806 F.3d at 493 (quoting Reddick v.

Chater, 157 F.3d 715, 722 (9th Cir. 1998)). ALJs regularly state, as the ALJ did

here, that a claimant’s testimony is not credible to the extent the testimony differs

from the ALJ’s determination of the claimant’s residual functional capacity (RFC).

See Revels v. Berryhill, 874 F.3d 648, 666 (9th Cir. 2017). But “[a]fter making

th[e] boilerplate statement, the ALJs typically identify what parts of the claimant’s

testimony were not credible and why.” Treichler v. Comm’r of Soc. Sec. Admin.,

775 F.3d 1090, 1103 (9th Cir. 2014).

      Here, the ALJ determined that the combination of several impairments was

medically severe and that Martinez’s medically determinable impairments could

reasonably be expected to cause “some” of the alleged symptoms. But the ALJ

never identified which symptoms were reasonably related to the medically

determinable impairments he had identified, or which testimony he found not to be

credible. This was error. See Brown-Hunter, 806 F.3d at 495 (explaining that

ALJs must provide some reasoning in order for a reviewing court to determine

whether the ALJ’s conclusions were supported by substantial evidence); Treichler,

775 F.3d at 1103.

      2.     The ALJ failed to make specific findings or provide germane reasons

to discredit the third-party function report provided by Martinez’s son, in which he


                                           3
stated that his mother spends seventeen hours a day watching television and

breathing on a CPAP machine. Lay testimony generally “cannot be disregarded

without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The

ALJ acknowledged that he reviewed the third-party function report, but made no

further reference to the elements contained therein. This was error. See Molina v.

Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).

      3.     We REVERSE and REMAND to the district court with instructions

to remand this case to the ALJ for further determinations consistent with this

decision.




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