                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 24 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SEAN PHILIP SCHUYLER,                           No.    19-15590

                Plaintiff-Appellee,             D.C. No.
                                                1:17-cv-00277-LEK-KSC
 v.

ANDREW M. SAUL, Commissioner of                 MEMORANDUM*
Social Security,

                Defendant-Appellant.

                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                              Submitted July 8, 2020**
                                 Honolulu, Hawaii

Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.

      Sean Schuyler applied for social security benefits. An administrative law

judge (“ALJ”) determined that the evidence of his disability supported only

moderate restrictions for his capacity to work and denied him benefits. Schuyler



      *
             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).
appealed the ALJ’s determination to a district court and the district court reversed,

holding that the ALJ had committed harmful legal error by: 1) rejecting Schuyler’s

testimony that he needed one day off per week without providing specific, clear

and convincing reasons; and 2) rejecting lay evidence regarding Schuyler’s need to

take one day off per week without providing germane reasons. The district court

then determined that “there are no serious doubts as to whether [Schuyler] is or is

not disabled,” and remanded the case for an award of benefits. The Commissioner

of Social Security appeals the district court’s ruling. We affirm in part and reverse

in part.

        1.    The ALJ erred by rejecting Schuyler’s testimony without providing

specific, clear, and convincing reasons. See Treichler v. Comm'r of Soc. Sec.

Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). Schuyler testified that at least once a

week he has a “bad day,” on which his symptomatology is more significant, and he

will usually not go into the place where he volunteers, or, if he does, he will not

stay the whole eight hours. Because of his need to take breaks which sometimes

require the entire day off, he testified that he could not complete an ordinary work

week.

        Here, in determining that the claimant was only moderately restricted, the

ALJ effectively rejected the claimant’s testimony that he needed one day off per

week. In doing so, the ALJ neither found Schuyler to be malingering, nor did the



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ALJ provide specific, clear, and convincing reasons for rejecting Schuyler’s

testimony. This was legal error. See id. Because a vocational expert testified

before the ALJ that a claimant who needed one day off per week would not be

employable, that error was not harmless.

      2.     Several people submitted lay evidence in support of Schuyler’s

disability claim. Testimony from lay witnesses can be disregarded if the ALJ

“gives reasons germane to each witness for doing so.” Turner v. Comm’r of Soc.

Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (quotation marks and citation omitted).

The ALJ is not required to analyze every lay witness’s testimony, “[r]ather, if the

ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need

only point to those reasons when rejecting similar testimony by a different

witness.” Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012), superseded by

regulation on other grounds.

      The ALJ did provide germane reasons for rejecting the lay evidence. He

rejected the lay evidence because he found it inconsistent with the opinions of

medical professionals and inconsistent with Schuyler’s medical evaluations. The

ALJ also rejected the lay evidence because he found it inconsistent with Schuyler’s

daily activities. Either reason that the ALJ provided for rejecting the lay testimony

is legally sufficient. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).




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      3.     When an ALJ has committed harmful error, we generally remand the

case to the agency for further proceedings. Treichler, 775 F.3d at 1099. However,

in “rare circumstances,” we may reverse and “remand for an award of benefits.”

Id. at 1100 (citation omitted). This case is not one of those rare circumstances.

Upon review of the record, it is not sufficiently clear that Schuyler could not

sustain regular work. Indeed, several medical professionals opined that he likely

could. Further factual development is warranted on this point. We therefore

remand this case to the district court and instruct it to remand to the ALJ so the

ALJ may resolve this factual dispute and reconsider its residual functional capacity

finding in light of Schuyler’s testimony that he needs one day off per week. See id.

at 1102.

AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings. Each party shall bear its own costs on appeal.




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