                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 14 2016

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



                             FOR THE NINTH CIRCUIT


DAVID LEE ZIMMERMAN,                             No. 13-16727

               Plaintiff - Appellant,            D.C. No. 2:12-cv-00598-JAT

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

               Defendant - Appellee.


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

                     Argued and Submitted November 18, 2015
                             San Francisco, California

Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.

       David Zimmerman claims disability benefits on behalf of his late wife,

Shelly Rae Weiner, who died during this appeal.1



           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       1
        The court granted Mr. Zimmerman’s motion for substitution pursuant to
Federal Rule of Appellate Procedure 43(a)(1).
      The Commissioner denied Weiner’s claim, and the district court affirmed.

We review the district court’s ruling de novo, and will affirm unless the ALJ’s

decision was based on legal error or not supported by substantial evidence in the

record. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999) (“Substantial evidence

is more than a mere scintilla but less than a preponderance.”).



      1. The ALJ did not err in her evaluation of Weiner’s residual functional

capacity. Her summary of the copious evidence in this case sufficiently discussed

the support for her assessment and resolved inconsistencies and ambiguities in the

evidence.



      2. The ALJ did not err by discounting Weiner’s symptom testimony.

Assuming Weiner “presented objective medical evidence of an underlying

impairment” that could have caused the symptoms Weiner alleged, the ALJ

provided “specific, clear and convincing” reasons for rejecting Weiner’s testimony.

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citation omitted).



      3. The ALJ erred when she failed to explain why she did not credit Dr.

General’s and Nurse Practitioner Longchamps’ conclusions. Dr. General is an


                                          2
“acceptable medical source[]” who gave an opinion on Weiner’s ability to work.

20 C.F.R. §§ 404.1513(a)(2), 404.1520b, 404.1527(a), (c). Longchamps, while not

an “acceptable medical source,” was an “other source” that examined Weiner on

several occasions and concluded Weiner’s pain affected her ability to work. See

id. § 404.1513(d). The ALJ erred by not setting forth “specific, legitimate reasons”

for not crediting these opinions. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

2014).



      The ALJ’s failure was not necessarily harmless. A “reasonable” ALJ, when

fully crediting those two opinions, “could have reached a different disability

determination.” See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th

Cir. 2005). The vocational expert testified at the hearing that a hypothetical person

with the disabilities described by Longchamps and Dr. General would not be able

to work. In contrast, the same hypothetical person without those symptoms would

be able to work.



      “[W]e retain flexibility in determining the appropriate remedy,” Burrell v.

Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (citation omitted), and here there

remains “serious doubt” as to whether Weiner actually was disabled, Garrison, 759


                                          3
F.3d at 1021. Had the ALJ considered the Longchamps and Dr. General opinions,

they would not necessarily have been persuasive. There also is evidence in the

record that suggests Weiner’s medical problems may have been caused by alcohol

abuse, which if true, would prevent an award of benefits. See 42 U.S.C. §

423(d)(2)(C); Harman v. Apfel, 211 F.3d 1172, at 1180–81 (9th Cir. 2000). We

vacate the district court’s judgment, and we remand the case for further

proceedings consistent with this disposition.



      Each party shall bear their own costs on appeal. AFFIRMED in part,

VACATED in part, and REMANDED.




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