                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               MAY 22 2018
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BRANDON T. BEYERLIN,                              No.    16-35772

              Plaintiff-Appellant,                D.C. No. 6:15-cv-01434-KI

 v.
                                                  MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                      Garr M. King, District Judge, Presiding

                              Submitted May 18, 2018**


Before: GOODWIN, LEAVY and SILVERMAN, Circuit Judges

      Brandon Beyerlin appeals the district court’s order affirming the Social

Security Administration’s denial of his application for Title II disability benefits.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s

      *
             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).
order de novo and the agency’s decision for substantial evidence and legal error.

Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). We reverse and

remand.

      Beyerlin does not challenge the finding that he made inconsistent statements

about whether the pain medication made him drowsy. Thus, he waived the

argument. Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1226 n.7 (9th Cir.

2009). This finding, which is supported by the record, provides substantial

evidence to support the adverse credibility finding. Molina, 674 F.3d at 1112

(inconsistent statements may support adverse credibility findings). Any errors in

the remaining adverse credibility findings are harmless. Carmickle v. Comm’r,

Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).

      The ALJ erred by adopting an incomplete record review opinion of Dr.

Berner and rejecting the treating opinions of Dr. Emond that Beyerlin would need

to lie down or to rest periodically during the work day to relieve pain and would

miss more than two days a month due to his impairments. An ALJ may reject

treating opinions that are inconsistent with treatment notes or are “brief,

conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart,

278 F.3d 947, 957 (9th Cir. 2002). However, contrary to the ALJ’s findings, Dr.

Emond’s 2013 opinions were consistent with her contemporaneous treatment notes


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and were supported by objective clinical evidence, imaging and the consistent

opinions of the treating surgical and pain specialists, Dr. Kitchel, Dr. Moore, and

Dr. Angeles. The record does not support the ALJ’s finding that Dr. Emond’s

opinions were inconsistent with the notes that Beyerlin had a normal gait during

some of the examinations. None of the treating doctors opined that Beyerlin was

not in pain or did not have physical limitations on occasions in which they noted a

normal gait. In fact, Dr. Kitchel noted a normal gait when he and the other treating

specialists unanimously agreed that Beyerlin’s lower back pain was caused by

stenosis, that alternative treatments had failed, and that surgery was necessary to

treat the pain.

       Nor does Dr. Berner’s record review opinion provide substantial evidence to

support the ALJ’s residual functional capacity assessment. Dr. Berner did not

consider the last year of medical treatment, including Dr. Emond’s 2013 opinion

and other medical evidence that Beyerlin’s condition had deteriorated. Hill v.

Astrue, 698 F.3d 1153, 1160-61 (9th Cir. 2012)( holding that a non-treating, non-

examining medical consultant’s opinion that failed to consider a more recent,

severe panic attack that was inconsistent with the consultant’s opinion could not

provide substantial evidence to support the ALJ’s decision).




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      The residual functional capacity assessment is incomplete and not supported

by the record in light of the improper rejection of Dr. Emond’s opinions. Taylor v.

Comm’r , Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir. 2011). Nor was the

error harmless. The vocational expert testified that an individual who had either

limitation noted by Dr. Emond could not perform the relevant unskilled sedentary

work at step five of the sequential evaluation.

      We decline to credit Dr. Emond’s opinion as true and remand for benefits.

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (the record must be “fully

developed” to remand for benefits).

      REVERSED AND REMANDED.




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