                                                                             FILED
                           NOT FOR PUBLICATION
                                                                             MAY 04 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SHIRLEY ANN PERRY,                               No. 14-15752

              Plaintiff - Appellant,             D.C. No. 1:12-cv-02089-SAB

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

              Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                 Stanley Albert Boone, Magistrate Judge, Presiding

                       Argued and Submitted April 12, 2016
                            San Francisco, California

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

      Shirley Perry appeals from the district court’s judgment affirming the

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

insurance benefits. The administrative law judge (“ALJ”) found that Perry was not



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
disabled because she had the residual functional capacity (“RFC”) to perform her

past relevant work and to perform other work that exists in significant numbers in

the national economy. We review the district court’s decision de novo and will

uphold the Social Security Administration’s disability determination “unless it

contains legal error or is not supported by substantial evidence.” Orn v. Astrue,

495 F.3d 625, 630 (9th Cir. 2007).

      The ALJ committed two common legal errors in his disposition of Perry’s

claim. First, the ALJ failed to provide specific and legitimate reasons for

discounting the opinions of Perry’s treating physicians. In determining Perry’s

RFC, the ALJ assigned “little weight” to the medical opinion of Perry’s treating

doctor, Dr. Ossowski, on the sole basis that he opined as to an issue reserved to the

Commissioner. While an ALJ is not bound by a treating physician’s opinion as to

issues reserved to the Commissioner, he cannot reject the doctor’s uncontroverted

opinion without providing “clear and convincing reasons for doing so.” Reddick v.

Chater, 157 F.3d 715, 725 (9th Cir. 1998). Even if the ALJ determines that the

opinion is contradicted by other evidence in the record, he must still provide

“specific and legitimate reasons” for rejecting it. Id. Here, the failure to provide

any such reasons was harmful legal error, as it led the ALJ to ignore Dr.




                                           2
Ossowski’s opinion about the severity of Perry’s foot and ankle impairment and

the impact on her ability to work of the cane he proscribed for her use.

      Similarly, the ALJ gave “no weight” to “many [other] opinions in the

record”—opinions which he did not specifically identify—because they either

addressed an issue reserved to the Commissioner or “were given for short periods

of time and replaced by permanent restrictions.” As explained above, the first

reason is clearly improper. The alternative reason is not supported by the record

and is too vague for proper review. In either case, the ALJ rejected the opinions of

Perry’s treating and examining physicians without explaining why “his own

interpretations . . . rather than the doctors[’], are correct.” Reddick, 157 F.3d at

725. The failure to do so was harmful legal error because at least one of those

“many opinions” was the opinion of Dr. Hansen, Perry’s treating orthopedist, who

opined that Perry’s impairments prevented her from doing many of the activities

that the ALJ in his RFC described her as capable of performing. Rather than give

Dr. Hansen’s opinion its appropriate weight, the ALJ relied almost exclusively on




                                            3
the opinion of a non-treating, non-examining physician, an opinion that was

contradicted by nearly every other opinion in the record.1

      Second, the ALJ determined that Perry’s statements about the intensity,

persistence and limiting effects of her symptoms were “not credible to the extent

that they are inconsistent with the” RFC finding adopted by the ALJ. Such a

“boilerplate” statement is insufficient for an adverse credibility finding. See

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014).

Instead, the ALJ must specifically identify the testimony that he found not credible

and identify the evidence and rationale upon which his adverse determination is

based. Id. Additionally, the ALJ’s reference to Perry’s stated distaste for work

could not alone support an adverse credibility finding. See Burrell v. Colvin, 775

F.3d 1133, 1139–40 (9th Cir. 2014).

      Because the ALJ’s decision is marked by prejudicial legal error, we reverse.

The vocational expert’s testimony suggested that, if credited, the improperly

disregarded opinions and testimony would likely have compelled a finding of



      1
         The ALJ may also have ignored the opinion of Dr. Jensen who diagnosed
Perry with fibromyalgia. The ALJ makes no mention of this impairment when
determining whether Perry has any severe impairments at step two of his analysis,
and he only refers in passing to the impairment at step four. Accordingly, it is not
clear on this record whether the ALJ considered what impact, if any, the
fibromyalgia might have on Perry’s RFC.

                                           4
disability. However, given the conflicting evidence in the record, we remand to the

district court with instructions to remand the case to the ALJ for reconsideration,

including any further proceedings not inconsistent with our disposition that may be

appropriate. See Treichler, 775 F.3d at 1101.

      REVERSED AND REMANDED.




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