                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              SEP 01 2017
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHELLE L. DAVIS,                               No. 15-35607

              Plaintiff-Appellant,               D.C. No. 2:13-cv-01969-MAT

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

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Mary A. Theiler, Magistrate Judge, Presiding

                           Submitted August 29, 2017**

Before:      GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

      Michelle L. Davis appeals the district court’s order affirming the

Commissioner of Social Security’s denial of her application for disability

insurance benefits and Supplemental Security Income benefits under Title II and


      *
             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).
Title XVI of the Social Security Act. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo, Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

2012), and we vacate and remand.

      At step three of the sequential evaluation process, the administrative law

judge (ALJ) determined that Davis did not meet or medically equal any of the per

se disabling impairments listed in 20 C.F.R. pt. 404, subpt. P, app. 1 (the

“Listings”) for the period between March 31, 2009, and July 24, 2013. The ALJ

erred in concluding that Davis did not meet or medically equal any of the per se

disabling impairments as a result of her pulmonary conditions. The ALJ failed to

sufficiently explain her evaluation of the combined effects of Davis’s impairments,

which medical expert (“ME”) Daniel Wiseman opined would have very likely met

or medically equaled Listing 3.02(A) as early as 2007. See Marcia v. Sullivan, 900

F.2d 172, 176 (9th Cir. 1990) (holding that where a claimant provides evidence

that the combination of her impairments established medical equivalence, “the ALJ

must explain adequately [her] evaluation of alternative tests and the combined

effects of the impairments”). Further, the ALJ’s proffered reason for rejecting the

ME’s testimony regarding Davis’s problems with obstruction and diffusing

capacity was not supported by the record.




                                            2                                 15-35607
      Although the ALJ’s reasoning lacks the requisite specificity and clarity, it is

not clear from the administrative record that the ALJ would be required to award

benefits if the evidence regarding the combined effects of Davis’s impairments

were properly considered and evaluated. See Treichler v. Comm’r of Soc. Sec.

Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (“Where there is conflicting evidence,

and not all essential factual issues have been resolved, a remand for an award of

benefits is inappropriate.”). Accordingly, we remand for further proceedings.

      Each party shall bear its own costs on appeal.

      VACATED and REMANDED.




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