                              NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                         FILED
                               FOR THE NINTH CIRCUIT                          DEC 14 2011

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

 MICHELLE WAKE,                                   No. 10-35681

                 Plaintiff - Appellant,           D.C. No. 2:09-cv-03036-JPH

     v.
                                                  MEMORANDUM*
 COMMISSIONER OF SOCIAL
 SECURITY,

                 Defendant - Appellee.


                      Appeal from the United States District Court
                         for the Eastern District of Washington
                      James P. Hutton, Magistrate Judge, Presiding

                          Argued and Submitted June 10, 2011
                                 Seattle, Washington

Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.

          Claimant-Appellant Michelle Wake appeals the district court’s decision

affirming the Commissioner of Social Security’s denial of her application for

supplemental security income benefits.

I.        Claimant’s Credibility


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      If there is no evidence of malingering, an Administrative Law Judge (ALJ)

may only reject the claimant’s testimony about the severity of symptoms if he

gives “specific, clear and convincing reasons for the rejection.” Vasquez v. Astrue,

572 F.3d 586, 591 (9th Cir. 2009), as amended (citation and internal quotation

marks omitted). “The ALJ must specifically identify what testimony is credible

and what testimony undermines the claimant’s complaints. . . .” Valentine v.

Comm’r. of Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (citation omitted).

      The ALJ did not err by considering inconsistent statements about Wake’s

drinking history when assessing her credibility. See e.g. Verduzco v. Apfel, 188

F.3d 1087, 1090 (9th Cir. 1999); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.

2002).

      An ALJ may also normally rely upon a claimant’s noncompliance with

treatment to provide clear and convincing evidence for an adverse credibility

finding. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). The ALJ, however,

failed to “identify what testimony is not credible and what evidence undermines

the claimant’s complaints.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998)

(citations omitted).

      We also note that Ms. Wake has been diagnosed with bipolar disorder and

depression, and her failure to comply with treatment may represent a symptom of


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her illness. See Ngyuyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)

(“Appellant may have failed to seek psychiatric treatment for his mental condition,

but it is a questionable practice to chastise one with a mental impairment for the

exercise of poor judgment in seeking rehabilitation.”) (citation and alteration

omitted).

      Thus, we remand this case to the ALJ to specifically delineate which

portions of Wake’s complaints and testimony are not credible. The ALJ should

explain how Wake’s credibility affected the disability and residual functional

capacity (RFC) findings. The ALJ should also consider what effect Wake’s mental

impairments have on her efforts to comply with her prescribed treatment regimen.

II.   Consideration of Medical and Non-Medical Sources

      Wake asserts that the ALJ erred by failing to consider the opinions of

Christopher Clark, MEd LMHC, a psychologist, and Martha Usatine, a social

worker, or in the alternative, not providing any reason for discrediting their

opinions.

      The ALJ determined that if Wake ceased her substance abuse, she would

have the RFC to perform a full range of work at all exertional levels, albeit with

only superficial interaction with the public and coworkers. He relied on the

opinions of Dr. Joseph Vickers, who treated Wake on several occasions,


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psychologist Dr. Jay Toews, who evaluated Wake on one occasion, and Dr. Jerry

Gardner, who performed a consultative psychiatric review and a mental residual

functional capacity assessment. The ALJ was silent as to the weight he accorded

Clark’s and Usatine’s opinions.

      “Where, as here, the record contains conflicting medical evidence, the ALJ

is charged with determining credibility and resolving the conflict. . . .” Benton ex

rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003) (citation omitted). “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 reasons that

are supported by substantial evidence. . . .” Bayliss v. Barnhart, 427 F.3d 1211,

1216 (9th Cir. 2005) (citation omitted).

      Licensed physicians and psychologists are acceptable medical sources who

may establish a medically determinable impairment. See 20 C.F.R. §

404.1513(a)(1), (2). The medical opinions of “other sources” may be given less

weight than that of an acceptable medical source. Gomez v. Chater, 74 F.3d 967,

970-71 (9th Cir. 1996). Social workers are not “acceptable medical sources” under

the regulations. 20 C.F.R. § 404.1513(a), (d). An ALJ may disregard the opinion

of a social worker if he “gives reasons germane to each witness for doing so. . . .”




                                           4
Turner v. Comm’r. of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (citation

omitted).

       The ALJ failed to provide specific, legitimate or germane reasons for

disregarding Clark and Usatine’s opinions addressing Wake’s long-term prognosis.

See Bayliss, 427 F.3d at 1216; Turner, 613 F.3d at 1224. Accordingly, we remand

this matter to the ALJ for an express determination of what weight, if any, should

be accorded these opinions.

III.   Challenge to Drs. Toews’s and Gardner’s opinions

       Wake contends that these opinions do not distinguish between her RFC with

and without her substance abuse limitations. However, Wake did not challenge

these opinions before the district court and, therefore, waived this argument on

appeal. See Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).

VACATED AND REMANDED.




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