                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         MAY 02 2016

                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS




KATHLEEN M. BURKE,                               No. 14-35780

              Plaintiff - Appellant,             D.C. No. 3:13-cv-05548-BHS

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

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                            Submitted April 28, 2016**

Before: THOMAS, Chief Judge, and D.W. NELSON, and LEAVY, Circuit Judges.

      Kathleen M. Burke appeals the district court’s judgment affirming an

Administrative Law Judge’s (“ALJ”) decision denying her application for

disability insurance benefits under Title II of the Social Security Act. We have


        *
             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).
jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand for further

proceedings.

      The ALJ failed to provide specific, clear, and convincing reasons for finding

Burke not fully credible. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d

1155, 1160 (9th Cir. 2008) (ALJ must provide “clear and convincing” reasons for

discrediting a claimant absent “affirmative evidence” of malingering) (citation and

internal quotation marks omitted)). The ALJ erred in concluding that Burke’s

application for and receipt of unemployment benefits undermines her credibility

where the record does not establish whether Burke held herself “out as available

for full-time or part-time work.” Id. at 1161-62; see also Wash. Rev. Code

§ 50.20.119 (setting forth part-time work exception). Further, the Commissioner

does not contest the district court’s finding that the ALJ erred in discounting

Burke’s credibility based on her minimal treatment and daily activities. The errors

were not harmless because the only remaining reasons to discount Burke’s

credibility were her inconsistent reporting regarding her Crohn’s disease and

reasons for leaving her job, which do not amount to substantial evidence. See

Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). Thus, on the record

before us, we do not sustain the negative credibility assessment.

      Burke also argues that the ALJ failed to fulfill his duty to fully and fairly


                                           2                                      14-35780
develop the record because the ALJ failed to ask Burke questions regarding her

receipt of unemployment benefits, daily activities, treatment, and ability to work,

and did not request records pre-dating her alleged disability onset date. See Higbee

v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1992) (per curiam) (explaining that an ALJ

“has an independent duty to fully develop the record”). For the reasons discussed

above, we agree that the ALJ failed to develop the record regarding Burke’s receipt

of unemployment benefits, minimal treatment, and daily activities. The ALJ had a

heightened duty to develop the record because Burke was unrepresented at the

hearing. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) ( “When

the claimant is unrepresented, . . . the ALJ must be especially diligent in exploring

for all the relevant facts.”).

       However, because “[m]edical opinions that predate the alleged onset of

disability are of limited relevance,” Carmickle, 533 F.3d at 1165, we conclude that

the ALJ was not required to obtain additional medical records. Moreover, the ALJ

left the hearing open for Burke to submit additional medical records, which she

did. Further, after the ALJ issued his decision, Burke obtained counsel who

submitted additional medical records, which the Appeals Council made part of the

record. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir.

2012) (20 C.F.R. § 404.970(b) “permit[s] claimants to submit new and material


                                          3                                    14-35780
evidence to the Appeals Council”).

      We therefore reverse and remand to the district court with instructions to

remand to the Social Security Administration for further proceedings. On remand,

the ALJ should further develop the record regarding Burke’s daily activities,

minimal care, and application for and receipt of unemployment benefits, and

reassess Burke’s testimony regarding her limitations.

      Burke is awarded costs on appeal.

      REVERSED and REMANDED.




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