                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 02 2015

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



                             FOR THE NINTH CIRCUIT


 JANE MARIE BEHLING,                              No. 12-16921

               Plaintiff - Appellant,             D.C. No. 2:11-cv-00954-JAT

   v.

 CAROLYN W. COLVIN,
                                                  MEMORANDUM*
               Defendant - Appellee.


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

                            Submitted February 13, 2015**
                              San Francisco California

Before: NOONAN and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge.*** 1




        *
             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 Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
      Appellant Jane Marie Behling (“Behling”) appeals the district court’s

decision remanding the case for further proceedings. Behling contends that the

district court erred when it declined to remand the case for an award of disability

benefits based on there being no outstanding issues to be resolved upon a review of

the record under the “credit-as-true” rule, which was reaffirmed in Garrison v.

Colvin, 759 F.3d 995 (9th Cir. 2014). Reviewing the district court’s decision for

abuse of discretion, Harman v. Apfel, 211 F.3d 1172, 1173 (9th Cir. 2000), we

reverse and remand to the district court with instructions to remand to the ALJ for

an award of benefits.

      As articulated in Garrison, the credit-as-true rule can be applied when three

conditions are met:

             (1) the record has been fully developed and further
             administrative proceedings would serve no useful
             purpose;

             (2) the ALJ has failed to provide legally sufficient
             reasons for rejecting evidence, whether claimant
             testimony or medical opinion; and

             (3) if the improperly discredited evidence were credited
             as true, the ALJ would be required to find the claimant
             disabled on remand.




                                          2
Id. at 1020. However, there is flexibility to remand for further proceedings “when

the record as a whole creates serious doubt as to whether the claimant is, in fact,

disabled within the meaning of the Social Security Act.” Id. at 1021.

      Here, all three requirements of the credit-as-true rule are satisfied. First,

there is no need to develop the record or convene further proceedings. Although

the ALJ did not do a function-by-function analysis, it does not necessarily require

remand for further proceedings to make a Residual Functional Capacity (“RFC”)

determination. See id. at 1021 n.28 (“In no prior credit-as-true case have we

suggested that an award of benefits is proper only if the ALJ made a formal RFC

finding . . . .”). Based on the vocational expert’s hearing testimony, who

responded that a person with Behling’s limitations would be precluded from

sustained work activity, there is substantial evidence to support a conclusion that

further proceedings are not required to determine Behling’s RFC.

      Second, the ALJ failed to provide legally sufficient reasons for discrediting

Behling’s own testimony or that of her examining physician, Dr. Schultz.1 The

ALJ did not find any evidence of malingering but discredited Behling’s statements



      1
              Behling also contended that the ALJ failed to give substantial weight
to her treating physician Dr. Stout’s opinion. Although the ALJ did not reference a
contradictory medical opinion, he did provide specific reasons for giving Dr.
Stout’s opinion little weight.

                                           3
as inconsistent with the ALJ’s own assessment. The ALJ’s explanation was not

sufficiently specific, and failed to provide specific, clear and convincing reasons

for rejecting her testimony. See Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir.

Dec. 31, 2014) (affirming that an ALJ must provide “specific, clear, and

convincing reasons” for rejecting a claimant’s testimony, unless there is evidence

of malingering).2 In giving little weight to the examining neuropsychologist Dr.

Shultz’s opinion, the ALJ offered no contradictory medical opinion, but presumed

that Dr. Shultz relied too heavily on Behling’s subjective complaints.

      The ALJ did accept the examining psychologist Dr. Geary’s opinion but

seems to have overlooked the fact that the limitations Dr. Geary identified were

found by the vocational expert to render Behling disabled. The ALJ also provided

greater weight to nonexamining physician Dr. Dalton over the treating and

examining physicians’ assessments, although it was based only on a review of Dr.

Geary’s report. “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.” Ryan v. Comm’r of Soc. Sec., 528




      2
               In fairness to the district court, we note that Burrell was decided after
the district court ruled in this case.

                                            4
F.3d 1194, 1202 (9th Cir. 2008) (quoting Lester v. Chater, 81 F.3d 821, 831 (9th

Cir. 1995), as amended (Apr. 9, 1996)).

      Third, if the medical opinions are given their appropriate weighting, and if

Behling’s own testimony and the medical opinions are properly credited-as-true,

then in light of the vocational expert’s testimony, the ALJ would be required to

make a finding that Behling was disabled on remand.

      Finally, there is nothing in the record as a whole that creates serious doubt

about whether Behling is, in fact, disabled, within the meaning of the Social

Security Act.

      Accordingly, the Court remands for a calculation and award of benefits.

             REVERSED and REMANDED.




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