                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 20 2016
                      UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


STEVEN HARTMANN,                                 No. 13-36188

              Plaintiff - Appellant,             D.C. No. 2:12-cv-03072-JPH

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

              Defendant - Appellee.


                  Appeal from the United States District Court
                     for the Eastern District of Washington
                 Edward F. Shea, Senior District Judge, Presiding

                        Argued and Submitted June 8, 2016
                               Seattle, Washington

Before: PAEZ, BYBEE, and CHRISTEN, Circuit Judges.

      Steven Nicholas Hartmann appeals the district court’s judgment affirming an

Administrative Law Judge’s (“ALJ”) denial of supplemental security income. We

reverse and remand.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     Because the ALJ considered Hartmann’s noncompliance with his

diabetes treatment program as a factor in her credibility determination rather than

as an independent basis for denying benefits, she was not required to comply with

the notice and other requirements of Social Security Ruling 82-59. See Molina v.

Astrue, 674 F.3d 1104, 1114 n.6 (9th Cir. 2012).

      2.     Nonetheless, the ALJ did not provide “clear and convincing” reasons

for discrediting Hartmann. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d

1155, 1160 (9th Cir. 2008).

      First, substantial evidence does not support the ALJ’s reliance on

Hartmann’s daily activities. Hartmann testified that at least once each week he

suffered disabling symptoms of type I diabetes that prevented him from working.

This testimony was not inconsistent with evidence that Hartmann performed

simple housework, went for short walks and bike rides, watched television, and

cared for his girlfriend’s children three days each week. Because Hartmann’s daily

activities did not “contradict his other testimony,” they were not grounds for

discrediting him. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).

      Second, substantial evidence also does not support the ALJ’s finding that

Hartmann’s employment history reflects “little propensity to work in his lifetime.”

To the contrary, Hartmann made four attempts to work in 2006 and 2007 during the


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short time between high school and his recurrent hospitalization for diabetes-related

illness. That is not the “extremely poor work history” that may justify an adverse

credibility finding. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

      Third, the ALJ found that Hartmann failed to follow his diabetes treatment

program but failed to consider whether his mental impairments explained his

noncompliance. The record evidence demonstrates that Hartmann possesses

limited cognitive abilities; indeed, the ALJ included “borderline intellectual

functioning” among Hartmann’s “severe impairments.” Because the ALJ did not

address the potential effect of Hartmann’s mental impairments, substantial

evidence does not support the ALJ’s adverse credibility determination on the basis

of his noncompliance.

      3.     Therefore, we reverse the district court’s judgment and remand so that

the ALJ may consider in the first instance and on an open record the extent to

which Hartmann’s mental impairments affect his ability to comply with his

diabetes treatment program. To the extent the ALJ relies on Hartmann’s

noncompliance with treatment to discount objective medical evidence, as opposed

to subjective testimony, she must afford Hartmann the procedural protections of

Social Security Ruling 82-59.

      REVERSED AND REMANDED.


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