                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 24 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JONI ELLEN PAYTON,                               No. 13-16782

              Plaintiff - Appellant,             D.C. No. 2:12-cv-02352-NVW

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

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                      Argued and Submitted October 23, 2015
                            San Francisco, California

Before: HAWKINS, SILVERMAN, and CHRISTEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        Joni Payton seeks review of the denial of her application for Supplemental

Security Income disability benefits. We have jurisdiction under 28 U.S.C. § 1291,

and we reverse and remand for calculation and award of benefits.1

        Four treating physicians opined that Payton is disabled. Two state agency

physicians reviewed Payton’s medical record and concluded that she is not

disabled. The ALJ credited the two reviewing physicians’ opinions over the four

treating physicians’ opinions, but provided insufficient reasons for doing so. The

two reviewing physicians did not review Payton’s entire medical record, and their

opinions should be discounted to some degree because neither of them examined

Payton. 20 C.F.R. § 404.1527(c)(1). Further, the ALJ did not provide “specific

and legitimate” reasons to reject the four treating physicians’ opinions. Lester v.

Chater, 81 F.3d 821, 830 (9th Cir. 1995). For example, the ALJ discounted the

treating physicians’ opinions because they opined on the ultimate issue of

disability, but “[i]n disability benefits cases . . . physicians may render medical,

clinical opinions, or they may render opinions on the ultimate issue of

disability—the claimant’s ability to perform work.” Garrison v. Colvin, 759 F.3d

995, 1012 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.



        1
              Because the parties are familiar with the facts we do not recount them
here.

                                           2
1998)). The ALJ also speculated that the treating physicians supported Payton’s

application for benefits out of sympathy or to avoid tension with her. There is no

support for this suggestion. Other reasons cited by the ALJ for discounting the

treating physicians’ opinions were merely conclusory statements with no

supporting explanation or examples. Id. at 1012–13 (Where an ALJ “rejects a

medical opinion or assigns it little weight while doing nothing more than ignoring

it, asserting without explanation that another medical opinion is more persuasive,

or criticizing it with boilerplate language that fails to offer a substantive basis for

his conclusion,” he errs.).

      The ALJ found that Payton lacked credibility, but the reasons he gave for

this finding were not sufficiently specific, clear, and convincing. Burrell v. Colvin,

775 F.3d 1133, 1136 (9th Cir. 2014). For example, the ALJ concluded that

Payton’s symptoms were likely not as debilitating as she claimed because, at times,

some of her symptoms responded to treatment, allowing her to carry on daily

activities. But “[o]ccasional symptom-free periods” are not necessarily inconsistent

with Payton experiencing chronic, disabling pain, Lester, 81 F.3d at 833, and

“impairments that would unquestionably preclude work and all the pressures of a

workplace environment will often be consistent with doing more than merely

resting in bed all day,” Garrison, 759 F.3d at 1016. The ALJ also concluded from


                                            3
the fact that Payton failed to stop smoking that her respiratory symptoms were not

as severe as alleged, but her failure to stop smoking may only indicate that Payton

is addicted to tobacco.

      The vocational expert testified that based on Payton’s symptom testimony

she “would not be able to sustain competitive employment.” The medical evidence

from Payton’s four treating physicians supports this conclusion. We remand to the

ALJ for calculation and award of benefits.

      REVERSED AND REMANDED.




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