                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 9 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DONNA FLEENOR,                                  No.    17-35418

                Plaintiff-Appellant,            D.C. No. 1:15-cv-00595-CWD

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

                Defendant-Appellee.

                   Appeal from the United States District Court
                             for the District of Idaho
                   Candy W. Dale, Magistrate Judge, Presiding

                      Argued and Submitted October 9, 2018
                              Seattle, Washington

Before: PAEZ and BEA, Circuit Judges, and ROYAL,** District Judge.

      Donna Fleenor appeals the district court’s judgment affirming the Social

Security Commissioner’s denial of Fleenor’s application for disability insurance

benefits under Title II of the Social Security Act. We have jurisdiction under 28


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable C. Ashley Royal, Senior United States District Judge
for the Middle District of Georgia, sitting by designation.
U.S.C. § 1291 and 42 U.S.C. § 405(g). We review the district court’s judgment

affirming the Administrative Law Judge’s (“ALJ”) denial of benefits de novo.

Reversal is warranted only if the ALJ’s decision was not supported by substantial

evidence or “if the ALJ applied the wrong legal standard.” Molina v. Astrue, 674

F.3d 1104, 1110 (9th Cir. 2012) (citation omitted). We hold that the ALJ erred in

rejecting the opinions of treating physicians Drs. Prier and Atteberry, and in

discrediting Fleenor’s symptom testimony. Because additional explanation and

analysis is needed, we reverse and remand for further proceedings.

      “Because treating physicians are employed to cure and thus have a greater

opportunity to know and observe the patient as an individual, their opinions are given

greater weight than the opinions of other physicians.” Smolen v. Chater, 80 F.3d

1273, 1285 (9th Cir. 1996) (citation omitted). “If a treating or examining doctor's

opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by

providing specific and legitimate reasons that are supported by substantial

evidence.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (internal

quotation marks and citation omitted).

      In a four-sentence paragraph, the ALJ gave “little weight” to Dr. Prier’s

opinion because he gave it on a check-box form with no explanation, and his

treatment records showed little objective findings. In an even shorter three-sentence

paragraph, the ALJ assigned “little weight” to Dr. Atteberry’s opinion because he


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“merely” checked a box on the form and gave no further explanation.

      An ALJ may properly reject a treating physician’s opinion if it is not well-

supported. However, the ALJ must evaluate the opinion according to factors such as

the length, nature, and extent of the treatment relationship; frequency of

examination; supportability; and consistency with the overall record. See 20 C.F.R.

§ 404.1527(c)(2)-(6); Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir. 2017);

Garrison, 759 F.3d at 1013. Here, although Dr. Prier and Dr. Atteberry’s opinions

were supported by the medical records, and Fleenor had a significant treatment

relationship with both, the ALJ failed to evaluate their opinions in accordance with

those factors. Thus, we find error. See Trevizo, 871 F.3d at 676 (ALJ’s failure to

consider above-identified factors “alone constitutes reversible legal error”);

Garrison, 759 F.3d at 1013 (opinions expressed in check-box forms based on

“significant experience” with the patient and “supported by numerous records” are

“entitled to weight that an otherwise unsupported and unexplained check-box form

would not merit”).

      The ALJ also erred in rejecting Fleenor’s symptom testimony. The ALJ found

that a medically determinable impairment could reasonably be expected to cause

Fleenor’s symptoms, and the ALJ did not identify any evidence of malingering.

Therefore, the ALJ could reject Fleenor’s testimony regarding the severity of her

symptoms only for “‘specific, clear and convincing reasons.’” Burrell v. Colvin, 775


                                         3                                   17-35418
F.3d 1133, 1136 (9th Cir. 2014) (quoting Molina, 674 F.3d at 1112).

      The ALJ found Fleenor’s testimony inconsistent with her daily activities and

the objective medical evidence. In reaching her conclusion, however, the ALJ

focused only on portions of the record that supported her position instead of

addressing Fleenor’s testimony and the diagnostic evidence as a whole. The ALJ

failed to evaluate testimony indicating Fleenor’s limited ability to engage in daily

activities, such as walking her dog, sweeping, working in her yard, or watching her

grandchild without an another adult present. Thus, the ALJ’s finding that Fleenor

was able to perform some daily activities was not a specific, clear and convincing

reason for discrediting Fleenor’s testimony regarding her overall limitations. See

Diedrich v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017).

      The ALJ’s finding that Fleenor’s testimony did not comport with the objective

medical evidence is also not a sufficiently specific, clear and convincing reason to

reject her testimony. Fleenor’s “treatment records must be viewed in light of the

overall diagnostic record.” Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014).

An ALJ may not cherry-pick a doctor’s characterization of claimant’s issues; she

must consider “these factors in the context of [the doctor’s] diagnoses and

observations of impairment.” Id.

      These errors are not harmless. Rejecting the opinions of Drs. Prier and

Atteberry and Fleenor’s testimony affected the ALJ’s determination of Fleenor’s


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residual functional capacity.

       “Generally when a court of appeals reverses an administrative determination,

‘the proper course, except in rare circumstances, is to remand to the agency for

additional investigation or explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595

(9th Cir. 2004) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam)).

Because additional explanation is needed, we remand to the ALJ, so she can

reevaluate Dr. Prier and Dr. Atteberry’s medical opinions in accordance with the

factors listed in 20 C.F.R. § 404.1527(c)(2)-(6), see Trevizo, 871 F.3d at 676, and

reassess Fleenor’s credibility in light of her overall testimony and the longitudinal

medical record.

      REVERSED AND REMANDED.




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