                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 02 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



ESTHER G. WILSON,                                 No. 10-35212

              Plaintiff - Appellant,              D.C. No. 3:08-cv-5738-RBL-KLS

  v.
                                                  ORDER WITHDRAWING
MICHAEL J. ASTRUE, Commissioner,                  MEMORANDUM
Social Security Administration,                   DISPOSITION, GRANTING
                                                  PETITION FOR REHEARING,
              Defendant - Appellee.               AND DENYING PETITION FOR
                                                  REHEARING EN BANC

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

                      Argued and Submitted November 4, 2010
                               Seattle, Washington

Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District Court
Judge. *

       The panel has voted to grant in part the petition for panel rehearing, and the

memorandum disposition filed on December 21, 2010, is withdrawn.




        *
            The Honorable Claudia Wilµen, United States District Judge for the
Northern District of California, sitting by designation.
         Judge Bybee has voted to deny the petition for rehearing en banc, and

Judges B. Fletcher and Wilµen have recommended to deny the petition for

rehearing en banc.

         The full court has been advised of the petition for rehearing en banc, and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

         The petition for panel rehearing is GRANTED in part. The petition for

rehearing en banc is DENIED.




                                       Page 2 of 2
                                                                             FILED
                            NOT FOR PUBLICATION                              JUN 02 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



ESTHER G. WILSON,                                No. 10-35212

              Plaintiff - Appellant,             D.C. No. 3:08-cv-05738-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 November 4, 2010
                              Seattle, Washington

Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District
Judge.**

       Esther G. Wilson appeals the district court's decision affirming an

administrative law judge's (ALJ) decision that she was not disabled as of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Claudia A. Wilµen, United States District Judge for
the Northern District of California, sitting by designation.
September 29, 2004. Wilson argues that the ALJ erred by improperly evaluating

the medical evidence, improperly assessing Wilson's testimony to be less than

fully credible, improperly discrediting lay witness testimony, and improperly

determining Wilson's residual functional capacity (RFC). She claims that the

district court erred in affirming the ALJ's decision. We have jurisdiction pursuant

to 28 U.S.C. y 1291, and we reverse and remand to the district court with

instructions to remand to the Commissioner of Social Security ('Commissioner')

for further proceedings.

       We review de novo a district court's order upholding a denial of social

security benefits. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir.

2003). The ALJ's decision must be upheld if it is supported by substantial

evidence and based upon the correct legal standards. Id. Substantial evidence is

more than a mere scintilla but less than a preponderance. Id. '[A] reviewing court

must consider the entire record as a whole and may not affirm simply by isolating a

specific quantum of supporting evidence.' Robbins v. Soc. Sec. Admin., 466 F.3d

880, 882 (9th Cir. 2006) (internal quotation marµs omitted).

      The ALJ properly discredited Dr. Stout's August 2007 assessment that

Wilson's functional activities were extremely limited due to debilitating pain

because Dr. Stout had noted on June 28, 2007, when he last examined Wilson, that


                                          2
her pain was significantly improved due to her new pain medication, such that she

could undertaµe activities of daily living and part-time worµ. Dr. Stout's June 28,

2007, assessment quoted Wilson as stating that her new pain medication was

worµing well and that she was satisfied with it. Thus, the ALJ provided clear and

convincing reasons supported by substantial evidence in the record for rejecting

Dr. Stout's August 2007 assessment. See Orn v. Astrue, 495 F.3d 625, 632 (9th

Cir. 2007).

         The ALJ also properly assessed Wilson's testimony as only partially

credible because, at the administrative hearing, she did not acµnowledge any

improvement in her pain as a result of the new pain medication even though, only

two months earlier, she had told Dr. Stout that the medication was worµing well.

The ALJ also relied on an April 28, 2005, psychiatric report noting that although

Wilson stated she was experiencing constant pain such that she could not stand or

do houseworµ, she presented a pleasant demeanor and an euthymic mood, with no

behavior evidencing pain. These are clear and convincing reasons to discredit

some of Wilson's testimony. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir.

1995).

         The ALJ properly rejected the lay testimony of Wilson's husband and son.

The ALJ noted that Appellant reported that she could engage in very few activities


                                           3
of daily living and that the declarations of her husband and son were consistent

with Appellant's complaints. See Valentine v. Comm'r, 574 F.3d 685, 694 (9th

Cir. 2009) (ALJ's reasons for rejecting claimant's testimony provided germane

reasons for rejecting substantially similar testimony of claimant's wife). We also

note that the lay testimony consisted of declarations completed in March 2005,

which was two years prior to June 2007, when the new pain medication was

prescribed for Wilson, which the record indicated alleviated her pain.

      The ALJ made two errors, however, that necessitate our reversal and limited

remand. First, it is not clear from the ALJ's decision that the ALJ properly

considered Dr. Stout's June 28, 2007, assessment that, on medication, Wilson was

'able to worµ part time.' During a hearing before the ALJ, the vocational expert

('VE') testified that if Wilson were limited to a sit/stand option with only two

hours of sitting and two of hours of standing, no jobs would be available in the

national economy. The ALJ found that Wilson 'require[d] a sit/stand option,' but

did not specify why he found Wilson could worµ jobs existing in significant

numbers in the national economy despite (1) Dr. Stout's assessment that Wilson

could worµ part time and (2) the VE's testimony that a four-hour per day part-time

job with a sit/stand requirement would preclude Wilson's employment. In light of

this concern, we remand to the district court to remand to the Commissioner for the


                                          4
limited purpose of reconsidering Wilson's eligibility for disability benefits at steps

four and five. See 20 C.F.R. y 404.1520(a)(4)(iv), (v).

      Second, the ALJ erred in not giving controlling weight to the opinion of

Wilson's treating physician, without discussing why that opinion should be

discounted. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); 20 C.F.R. y

404.1527(d)(2). By regulation, the ALJ is required to 'apply [listed] factors' and

'give good reasons . . . for the weight [he] g[a]ve [Wilson's] treating source's

opinion.' 20 C.F.R. y 404.1527(d)(2); see id. at (d)(2)-(6). The ALJ failed to do

this for Dr. Stout's June 28, 2007, assessment. Instead, the ALJ implicitly gave

greater weight to the Disability Determination Service's ('DDS') May 2005

assessment that Wilson could worµ 'standing 2/8 hrs' than to Dr. Stout's opinion

that Wilson could worµ part time. Because the May 2005 DDS assessment was not

conducted by a treating physician, the ALJ should not have given greater weight to

the opinions represented in the May 2005 DDS assessment than to Wilson's

treating physician's opinion without explaining the y 404.1527(d)(2)-(6) factors

that render the treating physician's opinion not 'controlling.' Id.

      For the foregoing reasons, we reverse and remand to the district court with

instructions to remand to the Commissioner for further proceedings consistent with

this opinion.


                                           5
