                                                                              FILED
                            NOT FOR PUBLICATION                               APR 10 2014

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


                            FOR THE NINTH CIRCUIT


SHEILA KINZER,                                   No. 12-16345

              Plaintiff - Appellant,             D.C. No. 11-00328-PHX-JAT

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY

              Defendant - Appellee.


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

                       Argued and Submitted March 12, 2014
                            San Francisco, California

Before:       McKEOWN and GOULD, Circuit Judges, and QUIST, Senior District
              Judge.**

       Sheila Kinzer appeals the district court’s decision affirming the

Commissioner of Social Security’s denial of disability insurance benefits. We


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Gordon J. Quist, Senior District Judge for the United
States District Court for the Western District of Michigan, sitting by designation.
review the district court’s order de novo. Moisa v. Barnhart, 367 F.3d 882, 885

(9th Cir. 2004).

      1.     The Administrative Law Judge (the “ALJ”) erred in rejecting the

treating source medical opinions of Dr. Matthew J. Ross and Dr. Michael S. Biscoe

for two reasons. First, even though Ross’s and Biscoe’s opinions were not entitled

to controlling weight, the ALJ was still required to give deference to and accord

some weight to their opinions. See SSR 96-2p, 1996 WL 374188 (July 2, 1996)

(“Treating source medical opinions are still entitled to deference and must be

weighed using all of the factors provided in 20 CFR 404.1527 . . . .”). He did not.

      Second, and independent of the first error, the ALJ failed to provide specific

and legitimate reasons for rejecting Ross’s and Biscoe’s opinions. See Orn v.

Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (“Even if the treating doctor’s opinion is

contradicted by another doctor, the ALJ may not reject this opinion without

providing specific and legitimate reasons supported by substantial evidence in the

record.”) (internal quotation marks and citations omitted) (quoting Reddick v.

Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Indeed, the ALJ concluded—without

any explanation—that Ross’s opinion was “not well-supported by the . . . other

objective findings in the case record,” and that Biscoe’s opinion “contrast[ed]

sharply with the other evidence of record.” These conclusions were insufficient to


                                         2
dispose of the treating doctor’s opinions. See Embrey v. Bowen, 849 F.2d 418, 421

(9th Cir. 1988) (“To say that medical opinions are not supported by sufficient

objective findings . . . does not achieve the level of specificity our prior cases have

required, even when the objective factors are listed seriatim.”).

         2.    Even though the ALJ rejected Ross’s and Biscoe’s opinions without

providing legally sufficient reasons, the credit-as-true rule does not apply in this

case because there are outstanding issues that must be resolved before a proper

disability determination can be made—namely, the proper evaluation and

resolution of the conflicting medical opinions of the various treating doctors. See

Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1398–1401 (9th Cir.

1988).

         3.    The ALJ erred in expressing Kinzer’s residual functional capacity

without first making a function-by-function assessment of her limitations or

restrictions pursuant to SSR 96-8p, 1996 WL 374184 (July 2, 1996). This is

reversible error. See Shafer v. Astrue, 518 F.3d 1067, 1070 (9th Cir. 2008).

                                          ***

         We therefore reverse the decision of the district court and remand this case

to the district court with instructions to remand to the Commissioner for further

proceedings. On remand, the district court should instruct the ALJ to (1) accord


                                            3
proper weight to Ross’s and Biscoe’s opinions using the factors provided in 20

C.F.R. § 404.1527; (2) provide specific and legitimate reasons if the ALJ decides

to reject those opinions; and (3) make a function-by-function assessment of

Kinzer’s residual function capacity.

      REVERSED and REMANDED.




                                         4
                                                                                 FILED
Kinzer v. Colvin, No. 12-16345                                                   APR 10 2014

                                                                              MOLLY C. DWYER, CLERK
GOULD, Circuit Judge, concurring in part and concurring in the judgment: COURT OF APPEALS
                                                                       U.S.



      I concur in the judgment reached by the court, and also concur in all of the

memorandum disposition except Part 2 dealing with the credit-as-true rule.

Although the panel concludes that rule does not apply in this case, it is my view

that a credit-as-true rule is not consistent with normal administrative law

principles. I recognize that the panel is bound by prior Ninth Circuit precedent,

and my position may require review by an en banc panel or the Supreme Court in

some other case where the credit-as-true rule is applied on a Social Security case

remand. In my view, in almost all cases remands to an administrative agency

should be on an open record. Cf. Soto-Olarte v. Holder, 555 F.3d 1089, 1095-96

(9th Cir. 2009).
