                           NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS
                                                                          FILED
                           FOR THE NINTH CIRCUIT
                                                                          AUG 31 2015
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
MARTA VALENCIA,                                 No. 13-15750

              Plaintiff - Appellant,            D.C. No. 2:12-cv-00241-DGC

    v.
                                                MEMORANDUM*
CAROLYN W. COLVIN,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                            Submitted August 13, 2015**
                             San Francisco, California

Before:      KOZINSKI and TALLMAN, Circuit Judges, and ROSENTHAL,
             District Judge.***




*
      This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
**
     The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
       The Honorable Lee H. Rosenthal, United States District Judge for the Southern
District of Texas, sitting by designation.
      1. The district court correctly concluded that the ALJ erred in discrediting

Valencia’s testimony. When, as here, a claimant is not malingering and “has

provided objective medical evidence of an underlying impairment which might

reasonably produce the pain or other symptoms alleged, the ALJ may ‘reject the

claimant’s testimony about the severity of her symptoms only by offering specific,

clear and convincing reasons for doing so.’” Brown-Hunter v. Colvin, No. 13-

15213, 2015 WL 4620123, at *5 (9th Cir. Aug. 4, 2015) (quoting Lingenfelter v.

Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). The ALJ failed to explain with

specific, clear, and convincing reasons why Valencia’s testimony about her

symptoms and their severity was not credible.1


      2. If the ALJ has erred, “we determine whether the record has been fully

developed, whether there are outstanding issues that must be resolved before a

determination of disability can be made, and whether further administrative

proceedings would be useful.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d

1090, 1101 (9th Cir. 2014) (citations omitted) (internal quotation marks omitted);

see also Brown-Hunter, 2015 WL 4620123, at *7. Our review shows that the


      1
          Valencia also appealed the district court’s ruling affirming the ALJ’s finding
that her treating cardiologist’s opinion was entitled to no weight. Because we find that
remand on an open record is required, we need not reach the issue of what weight the
ALJ should give the cardiologist’s opinion based on all the evidence.
                                            2
record is not adequate to resolve outstanding issues necessary to determine whether

Valencia is entitled to disability benefits. For example, Valencia’s testimony and

some of the medical evidence in the record are inconsistent. She testified that she

could walk, stand and work only for up to 35 minutes at a time and that she easily

becomes breathless and dizzy. But Valencia’s self-reported activities of daily

living in the medical records included her statement that she walked 3 miles every

morning. This statement also appears inconsistent with her treating cardiologist’s

opinion that she could not work 8 hours a day, 5 days a week, because she could sit

between 3 and 4 hours and stand or walk less than 1 to 2 hours in an 8-hour work

day. The record does not resolve these or other inconsistencies.


      3. The absence of a vocational expert’s testimony underscores the need for

an open remand. We have remanded for additional proceedings when, as here, “no

vocational expert has been called upon to consider all of the testimony that is

relevant to the case.” Bunnell v. Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003);

see also Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2008) (remanding for

further proceedings because “in cases such as these, ‘where the testimony of the

vocational expert has failed to address a claimant’s limitations as established by

improperly discredited evidence,’ this Circuit has ‘consistently . . . remanded for



                                          3
further proceedings rather than payment of benefits.’” (quoting Harman v. Apfel,

211 F.3d 1172, 1180 (9th Cir. 2000)).


      4. Valencia argues that “testimony from a vocational consultant is

superfluous” if her improperly discredited testimony is credited as true and the

“reported symptoms establish disability.” But we do not apply the “credit-as-true”

rule if we have found outstanding issues. See Treichler, 775 F.3d at 1105 (“[O]ur

case law . . . requires us to assess whether there are outstanding issues requiring

resolution before considering whether to hold that the claimant’s testimony is

credible as a matter of law.”).


AFFIRMED and REMANDED for further proceedings on an open record.




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