                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 30 2014

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



                            FOR THE NINTH CIRCUIT


JOE MARTINEZ,                                    No. 12-57084

              Plaintiff - Appellant,             D.C. No. 3:12-cv-00796-H-NLS

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

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Southern District of California
                    Marilyn L. Huff, District Judge, Presiding

                     Argued and Submitted October 10, 2014
                              Pasadena, California

Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.

       Joe Martinez (“Martinez”) appeals the district court judgment affirming the

decision of the Administrative Law Judge (“ALJ”) to deny Martinez’s application

for social security disability and supplemental security income. We have



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the judgment of the

district court and remand for payment of benefits.

      First, the ALJ did not set forth specific, legitimate reasons based on

substantial evidence in the record for rejecting the assessment of examining

physician Dr. Valerie K. Novak in favor of non-examining physician Dr. S.

Brodsky’s opinion. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)

(citation omitted); Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (“The opinion

of a nonexamining physician cannot by itself constitute substantial evidence that

justifies the rejection of the opinion of either an examining physician or a treating

physician.”). Moreover, relying on Dr. Brodsky’s opinion was also in error

because Dr. Brodsky’s opinion was based on Dr. Novak’s findings, and a

physician’s opinion is not substantial evidence if the opinion relies entirely on

another doctor’s findings, but simply comes to a different conclusion. See Orn v.

Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (“When an examining physician relies

on the same clinical findings as a treating physician, but differs only in his or her

conclusions, the conclusions of the examining physician are not ‘substantial

evidence.’”).

      Second, the ALJ erred by rejecting Martinez’s testimony without making

any credibility determination, let alone providing specific, clear, and convincing


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reasons for rejecting the testimony and citing what testimony was credible and

what testimony undermined Martinez’s complaints. See Lester, 81 F.3d at 834

(“General findings are insufficient; rather, the ALJ must identify what testimony is

not credible and what evidence undermines the claimant’s complaints.”). Without

any meaningful explanation for rejecting Martinez’s testimony, we have nothing

with which to assess the legitimacy of that rejection. See Robbins v. Soc. Sec.

Admin., 466 F.3d 880, 884-85 (9th Cir. 2006).

      Third, substantial evidence does not support the ALJ’s finding that Martinez

can perform the full range of sedentary work under the Medical-Vocational

Guidelines (“the Grids”). Use of the Grids at step five is justified “where they

completely and accurately represent a claimant’s limitations.” Tackett v. Apfel,

180 F.3d 1094, 1101 (9th Cir. 1999) (citation omitted). Therefore, to rely on the

Grids rather than seek the expertise of a vocational expert, “a claimant must be able

to perform the full range of jobs in a given category, i.e., sedentary work, light

work, or medium work.” Id. (emphasis in original). But here, even Dr. Brodsky,

whose opinion the ALJ relied upon to determine Martinez’s residual functional

capacity, suggested that Martinez had limitations which would inhibit his ability to

perform the full range of sedentary work. Thus, the ALJ erred by relying on the

Grids rather than seeking the expertise of a vocational expert.


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      Finally, if Martinez’s testimony and Dr. Novak’s opinion were properly

credited, Martinez would be considered disabled. We therefore reverse the

decision of the district court and remand with instructions to remand to the ALJ for

the calculation and award of benefits. See Orn, 495 F.3d at 640 (citing Connett v.

Barnhart, 340 F.3d 871, 876 (9th Cir. 2003)).

REVERSED and REMANDED with instructions.




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