                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 10 2020
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MITZI ANN MCCLAREN,                             No.   17-15739

                Plaintiff-Appellant,            D.C. No. 2:15-cv-01254-DMF

 v.
                                                MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Arizona
                  Deborah M. Fine, Magistrate Judge, Presiding**

                             Submitted July 7, 2020***
                               Seattle, Washington

Before: HAWKINS, D.M. FISHER,**** and M. SMITH, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The parties stipulated to proceedings before a U.S. Magistrate Judge.
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ****
            The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
      Mitzi Ann McClaren appeals the district court’s ruling partially affirming and

partially reversing the Commissioner’s denial of disability benefits. McClaren

argues that the Administrative Law Judge (“ALJ”) erred not only in failing to call a

vocational expert as the district court ruled, but also in discounting both the medical

opinion of treating rheumatologist Joy Schechtman, D.O., and McClaren’s symptom

testimony. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g),

and we affirm and remand with instructions.

      The ALJ gave “specific and legitimate reasons that are supported by

substantial evidence” in giving “little weight” to Dr. Schechtman’s opinions. See

Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quotation marks omitted).

The ALJ observed inconsistencies between Dr. Schechtman’s opinions, whose

proposed restrictions exclude explanation, and her treatment notes, which omit any

such restrictions on McClaren’s abilities. Those notes indicate successful treatment

of “most of [McClaren’s] pain,” normal strength, sensation, and range of motion

with minimal or no joint synovitis, no functional loss in her shoulders despite some

continued pain, and increasing amounts of recommended exercise over the relevant

period. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (crediting

“incongruity” between physician opinion and treatment notes as specific and

legitimate reason). The ALJ’s reliance on the assessments of non-examining Drs.

Schenk and Georss, each of whom cited extensively to McClaren’s medical record


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in offering their less restrictive assessments, was likewise specific, legitimate, and

substantially supported. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)

(“The opinions of non-treating or non-examining physicians may also serve as

substantial evidence when the opinions are consistent with independent clinical

findings or other evidence in the record.”).

      These and other considerations also provide a “specific, clear and convincing”

basis for the ALJ’s adverse credibility determination for McClaren’s symptom

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

(quotation marks omitted).      The ALJ did not discount McClaren’s symptom

testimony based solely on her engagement in doctor-recommended exercise or

inconsistencies with objective medical evidence, which cannot provide the sole basis

for an ALJ’s credibility determination. See Vertigan v. Halter, 260 F.3d 1044, 1050

(9th Cir. 2001) (applicant can exercise “despite pain for therapeutic reasons” without

being fit for work); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (lack of

objective medical evidence alone insufficient to reject symptom testimony). The

ALJ offered additional reasons: McClaren made considerable progress as observed

in Dr. Schechtman’s and other providers’ treatment notes, reported feeling well

enough to reduce her liver and pain medications to try to become pregnant, cared for

her child and new puppy in her husband’s regular absence, and worked only

sporadically even before her disability onset date. See Warre v. Comm’r of Soc. Sec.


                                          3
Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled

effectively with medication are not disabling for the purpose of determining

eligibility for SSI benefits.”); Rollins, 261 F.3d at 857 (applicant responsibility as

sole childcare provider in husband’s regular absence at odds with symptom

testimony); Thomas, 278 F.3d at 959 (crediting “spotty” pre-claim work history as

reason to discount symptom testimony). Therefore, we decline to second-guess the

ALJ’s finding.

      Finally, the district court did not err in remanding for further proceedings after

finding that the ALJ had only erred in not obtaining vocational expert testimony.

The parties do not relitigate the vocational expert issue here. Nor do we see any

reason to depart from the “ordinary remand rule” governing our review of agency

judgments. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th

Cir. 2014). Still, lest there be any confusion about the proceedings on remand, we

now state explicitly that the continued uncertainty as to McClaren’s eligibility for

benefits warrants remand for further proceedings on an open record. See Burrell v.

Colvin, 775 F.3d 1133, 1141–42 (9th Cir. 2014) (remanding for further proceedings

on an open record where claimant’s disabled status remains uncertain). And we

instruct the district court to include the same instruction in its order remanding this

matter to the ALJ.

      AFFIRMED and REMANDED with instructions.


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