                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 23 2015

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DIANA M. MENDOZA,                                 No. 13-16325

              Plaintiff - Appellant,              D.C. No. 2:12-cv-00078-JAT

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

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                 James A. Teilborg, Senior District Judge, Presiding

                            Submitted October 21, 2015**
                              San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.

       Diana Mendoza (“Mendoza”) appeals the district court’s order affirming the

denial of her application for Social Security disability benefits by the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
administrative law judge (“ALJ”). We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review the district court’s opinion de novo, and we affirm the ALJ

decision if it is both free of legal error and supported by substantial evidence.

Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). We conclude the ALJ

erred and we reverse and remand for a determination of benefits.

      In 2007, Mendoza filed an application for disability benefits due to

fibromyalgia and osteoarthritis. The ALJ found that Mendoza was not disabled

because she had the residual functional capacity to perform past relevant work as a

housekeeper. In reaching this conclusion, the ALJ assigned “[l]ittle weight” to the

medical opinion of Dr. Joseph Nolan, Mendoza’s treating physician, who opined

that Mendoza could sit for less than four hours, stand and walk for less than two

hours, and lift and carry less than ten pounds during an eight-hour work day.

Instead, the ALJ gave “[g]reat weight” to the opinion of Dr. John Kurtin, a non-

examining state agency physician, that Mendoza could stand, walk, and sit for

about six hours, could lift twenty pounds on occasion, and could lift ten pounds

frequently. The ALJ also found that neither Mendoza nor Crespin Mendoza, her

father-in-law, gave credible testimony.

      “If a treating or examining doctor’s opinion is contradicted by another

doctor’s opinion, an ALJ may only reject it by providing specific and legitimate

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reasons that are supported by substantial evidence.” Ryan v. Comm’r of Soc. Sec.,

528 F.3d 1194, 1198 (9th Cir. 2008) (quoting Bayliss v. Barnhart, 427 F.3d 1211,

1216 (9th Cir. 2005)). Here, neither of the reasons the ALJ gave for assigning

little weight to Dr. Nolan’s opinion were supported by substantial evidence. First,

the ALJ wrote that Dr. Nolan did not indicate what evidence he relied on to form

his opinion about Mendoza’s physical limitations. The record is clear that Dr.

Nolan relied on his treatment notes. See Garrison v. Colvin, 759 F.3d 995, 1014

n.17 (9th Cir. 2014) (recognizing treatment notes as support for treating

physician’s “check-box forms”). The ALJ also stated that Dr. Nolan’s medical

opinion was “inconsistent with his treatment notes.” However, Dr. Nolan’s

treatment notes were consistent with both his diagnosis of fibromyalgia and his

determination that Mendoza could not do light work.

      The ALJ also erred by finding that neither Mendoza nor her father-in-law

gave credible testimony. Mendoza presented objective medical evidence that she

had fibromyalgia, “which could reasonably be expected to produce the pain or

other symptoms alleged.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)

(quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)); see also

Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (crediting claimant’s

testimony about her fibromyalgia symptoms). Because there was no evidence of

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malingering, the ALJ needed to give “specific, clear and convincing reasons” for

rejecting Mendoza’s testimony. Id. The ALJ failed to do so.

      Under our credit-as-true rule, we remand with instructions to calculate and

award benefits if “(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 . . . ; and (3) 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. These

conditions are present here. The record has been fully developed, and a vocational

expert testified before the ALJ that an individual with physical limitations identical

to Mendoza’s would be unable to hold any work. The ALJ did not provide legally

sufficient reasons for rejecting Dr. Nolan’s opinion or the testimony of Mendoza

and her father-in-law. If this evidence were credited as true, the ALJ would be

required to find Mendoza disabled on remand. Accordingly, we reverse the

decision of the district court with instructions to remand to the ALJ for a

calculation and award of benefits.

      REVERSED AND REMANDED.




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