                                                                               FILED
                           NOT FOR PUBLICATION
                                                                               MAR 12 2012
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


AMY A KELLY,                                     No. 10-36147

              Plaintiff - Appellant,             D.C. No. 3:09-cv-05710-RBL

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                      Argued and Submitted February 8, 2012
                               Seattle, Washington

Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.

       Amy A. Kelly appeals from the district court’s decision affirming the

Commissioner of Social Security’s (“Commissioner”) final decision, which

concluded that Kelly is not entitled to Disability Insurance Benefits under Title II

of the Social Security Act, 42 U.S.C. §§ 401-434. We reverse in part and remand


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to the district court with instructions to remand to the Administrative Law Judge

(“ALJ”) because we conclude that the ALJ failed to provide specific and legitimate

reasons for rejecting the opinions of treating and examining psychiatrists, mental

health counselors, social workers, and an advanced registered nurse practitioner.

We dismiss in part because we lack jurisdiction to review Kelly’s challenge to the

Appeals Council’s decision.

                                           I

      Kelly challenges the ALJ’s residual functional capacity determination that

she could perform a limited range of “light work.” We review de novo the district

court’s review of the Commissioner’s decision. Batson v. Comm’r of Soc. Sec.

Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). We affirm the decision of the

Commissioner if it is supported by substantial evidence and the Commissioner

applied the correct legal standards. Id.

                                           A

      First, Kelly contends that the ALJ erred in failing to consider the medical

opinion of her treating psychiatrist, Dr. Manfred Joeres, and her treating physician,

Dr. Cindy Schorzman, and also did not to consider the evidence from her treating

mental health counselors and social workers.

      Kelly is correct that the ALJ disregarded entirely the medical opinion of Dr.


                                           2
Joeres and Dr. Schorzman. “Because treating physicians are employed to cure and

thus have a greater opportunity to know and observe the patient as an individual,

their opinions are given greater weight than the opinions of other physicians.”

Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). “Therefore, an ALJ may

not reject treating physicians’ opinions unless [s]he ‘makes findings setting forth

specific, legitimate reasons for doing so that are based on substantial evidence in

the record.’” Id. (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.

1989)). “[A]n ALJ cannot avoid these requirements simply by not mentioning the

treating physician’s opinion and making findings contrary to it.” Lingenfelter v.

Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007).

      The ALJ erred in silently disregarding the medical opinions of treating

psychiatrist Dr. Joeres related to Kelly’s ability to function in a work setting. Even

though Dr. Schorzman was Kelly’s primary care physician from August 2005 until

July 2006, there was no error in the ALJ’s failure to mention Dr. Schorzman’s

treatment notes because they do not contain any medical opinions that are

significant or probative with respect to the residual functional capacity

determination. See Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394–95

(9th Cir. 1984) (“The Secretary, however, need not discuss all evidence presented

to her. Rather, she must explain why ‘significant probative evidence has been


                                          3
rejected.’” (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (emphasis

in original)).

       Kelly is also correct that the ALJ disregarded entirely the evidence from her

treating mental health counselors and social workers. Although mental health

counselors and social workers are not “acceptable medical sources,” 20 C.F.R.

§ 404.1513(a), they are “other sources” under 20 C.F.R. § 404.1513(d), and the

ALJ may only disregard their testimony if he or she “gives reasons germane to

each witness for doing so.” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,

1223–24 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.

2001)). The ALJ erred in silently disregarding the treatment notes from these

treating mental health counselors and social workers when determining Kelly’s

residual functional capacity.

                                         B

       Second, Kelly contends that the ALJ erred by improperly discrediting part of

the medical opinion of examining psychiatrist, Dr. James Parker, and rejecting

evidence from examining nurse practitioner, Aimee Wagonblast, A.R.N.P. “[L]ike

the opinion of a treating doctor, the opinion of an examining doctor, even if

contradicted by another doctor, can only be rejected for specific and legitimate

reasons that are supported by substantial evidence in the record.” Lester v. Chater,


                                          4
81 F.3d 821, 830–31 (9th Cir. 1995). Dr. Parker and Ms. Wagonblast assigned

Global Assessment of Functioning (“GAF”) scores of 52 and 40–45, respectively.

Substantial evidence does not support the ALJ’s reasons for rejecting Dr. Parker or

Ms. Wagonblast’s GAF scores.

                                          C

      Third, Kelly contends that the ALJ erred by improperly discrediting her

hearing testimony. “If there is no affirmative evidence that the claimant is

malingering, the ALJ must provide clear and convincing reasons for rejecting the

claimant’s testimony regarding the severity of symptoms.” Rollins v. Massanari,

261 F.3d 853, 857 (9th Cir. 2001). “The ALJ may consider many factors in

weighing a claimant’s credibility, including ‘(1) ordinary techniques of credibility

evaluation, such as the claimant’s reputation for lying, prior inconsistent

statements concerning the symptoms, and other testimony by the claimant that

appears less than candid; (2) unexplained or inadequately explained failure to seek

treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily

activities.’” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting

Smolen, 80 F.3d at 1284).

      The ALJ discredited Kelly’s testimony regarding the intensity, persistence,

and limiting effects of her mental impairment based on her failure to seek as much


                                          5
treatment as would be expected in light of her symptoms, inconsistencies between

her hearing testimony and the record evidence, as well as her daily activities.

These reasons for rejecting Kelly’s testimony were clear and convincing, and

substantial evidence supports the ALJ’s adverse credibility determination. See

Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“The ALJ is permitted to

consider lack of treatment in his credibility determination.”). Her hearing

testimony that she left her job because of her anxiety and depression is

contradicted by treatment notes indicating that she did not return to work after

going on medical leave to take care of her husband because she did not like her

job. In addition, Kelly testified that her daily activities include driving, washing

the dishes, shopping, and caring for her two children by getting them ready for

school in the morning, walking them to the bus stop, doing their laundry, feeding

them, and engaging in educational activities with her son to help him learn his

letters and numbers. Although the evidence of Kelly’s daily activities may also

admit of an interpretation more favorable to Kelly, the ALJ’s interpretation was

rational, and “we must uphold the ALJ’s decision where the evidence is susceptible

to more than one rational interpretation.” Id. at 680–81 (quoting Magallanes, 881

F.2d at 750 (alteration in original omitted)).




                                           6
                                         D

      Because the harmless error doctrine applies in the Social Security context,

McLeod v. Astrue, 640 F.3d 881, 887 n.25 (9th Cir. 2011), we must determine

whether remand is appropriate in light of our determination that some of the ALJ’s

findings were in error. From this record, we cannot determine whether the error

was harmless because the ALJ did not provide a statement of her reasons for

rejecting evidence relevant to the determination of Kelly’s residual functional

capacity. We must therefore reverse and remand to the district court with

instructions to remand to the ALJ to consider all of the evidence and to explain

why she credits some testimony over others.

                                         II

      Kelly also challenges the ALJ’s finding that her mental impairment did not

meet or equal the criteria of paragraph C in Listing 12.04.1 She has not pointed to

any evidence in support of her contention that she meets or equals the paragraph C

criteria, and substantial evidence supports the ALJ’s finding that she does not. See

20 C.F.R. pt. 404, subpt. P, app. 1 § 12.04C; Lewis, 236 F.3d at 514.



      1
        We decline to address Kelly’s contention that the ALJ erred in finding that
her mental impairment did not meet or equal the criteria of paragraph B, because
she “failed to argue this issue with any specificity” in her opening brief. Carmickle
v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008).
                                         7
                                         III

      Lastly, Kelly contends that the Appeals Council erred in failing to remand

Kelly’s claim for a new hearing in light of the new evidence she submitted on

appeal. We dismiss this contention because we lack jurisdiction to review the

Appeals Council’s decision denying Kelly’s request for review. See Taylor v.

Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011) (“When the

Appeals Council denies a request for review, it is a non-final agency action not

subject to judicial review because the ALJ’s decision becomes the final decision of

the Commissioner.”).

      REVERSED in part; DISMISSED in part; REMANDED.

             Each party shall bear its own costs.




                                          8
