                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              APR 13 2017
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KARI KAUFFMAN,                                    No.   14-35609

              Plaintiff-Appellant,                D.C. No. 1:12-cv-00772-AC

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

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                             Submitted April 13, 2017 **


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

      Kari Kauffman appeals the district court’s order affirming the Social

Security Administration’s denial of her Title II disability insurance benefits.

Kauffman claimed disability due to cerebral palsy and rheumatoid arthritis. We

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              We grant appellant’s motion to waive oral argument and to submit
this case on the briefs. (DktEntry 23).
have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s

order de novo and may reverse the agency’s denial of benefits only if the ALJ’s

decision is not supported by substantial evidence or contains legal error. Molina v.

Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). We reverse and remand for further

proceedings.

      Kauffman argues that the ALJ failed to provide specific and legitimate

reasons supported by substantial evidence for rejecting the opinion of Dr. Basin,

Kauffman’s treating rheumatologist. We agree. Dr. Basin opined that functional

limitations in Kauffman’s shoulders, hands and feet due to joint damage, swelling,

and deformities caused by rheumatoid arthritis prevented her from working and

that Kauffman’s pain was sufficiently severe to interfere with her attention and

concentration. An ALJ may reject a treating physician’s opinion if it “is brief,

conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart,

278 F.3d 947, 957 (9th Cir. 2002). But, contrary to the ALJ’s finding, Dr. Basin’s

opinions were indeed based on and supported by objective medical evidence,

including physical examination and x-rays. Dr. Basin’s opinions also were

consistent with the only other medical evidence in the record: the opinion of Dr.

Nolan, who examined Kauffman. See Rodriguez v. Bowen, 876 F.2d 759, 762 (9th




                                          2
Cir. 1989) (the ALJ must cite “conflicting clinical evidence” to reject a treating

physician’s opinion for a lack of objective findings).

      Kauffman argues that the ALJ implicitly and improperly rejected the opinion

of Dr. Nolan, an examining physician, when the ALJ found that Kauffman could

frequently handle items during an eight-hour day. We agree with Kauffman.

Frequent handling involves “seizing, holding, grasping, turning or otherwise

working primarily with the whole hands or hands” for one-third to two-thirds of an

eight-hour day. SSR 85-15, 1985 WL 56857 * 7 (1985); 20 C.F.R. § 404.1567

(2017); Dictionary of Occupational Titles, 379.367-010 (4th ed. 1991), 1991 WL

673244 (1991). Consistent with Dr. Basin’s opinion, Dr. Nolan diagnosed

reasonably advanced rheumatoid arthritis and opined that Kauffman would have

problems with repetitive finger activities and difficulty with fine finger activities.

Physical examination revealed that Kauffman had a limited ability to flex her

fingers, soft tissue swelling in her wrists, thickening in her finger and knuckle

joints, an inability to form fists with her hands, weak grip strength, and the ability

to grasp only with the first or last three fingers. When reviewed in its entirety, Dr.

Nolan’s report does not support the ALJ’s finding that Kauffman could handle

items for over five hours in an eight-hour day. See Widmark v. Barnhart, 454 F.3d

1063, 1067 (9th Cir. 2006) (holding that substantial evidence did not support the


                                            3
ALJ’s manipulation findings because the findings were inconsistent with the

physician’s report, when viewed in its entirety). The error is not harmless because

all of the medical evidence in the record precludes a finding that Kauffman could

frequently handle items. The bottom line is that the ALJ rejected Dr. Nolan’s

examining opinion without providing clear and convincing reasons supported by

substantial evidence.

      Also, the ALJ failed to provide clear and convincing reasons for rejecting

Kauffman’s testimony that her condition had deteriorated between 2008 and 2010.

The only reason given by the ALJ that is supported by the record – a lack of

medical evidence – cannot be the sole reason for rejecting a claimant’s testimony.

See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of

medical evidence cannot form the sole basis for discounting pain testimony, it is a

factor that the ALJ can consider in his credibility analysis.”).

      The ALJ also erred by discrediting the lay testimony of Kauffman’s father,

Merwin Hulburt, by speculating that Hulburt “might be apt to transfer some of his

experience” with rheumatoid arthritis “onto his daughter’s situation.” The record

simply does not support the speculation. Hulburt testified that he could not

estimate how often Kauffman had pain, and the physical limitations observed by

Hulburt were consistent with all of the medical evidence in the record.


                                           4
      Because the record does not support a finding that Kauffman could

frequently handle items and because the hypothetical question posed to the

vocational expert did not include all of the limitations noted by the medical

experts, the finding that Kauffman can perform other work is not supported by the

record. See Thomas, 278 F.3d at 956 (vocational expert testimony is only reliable

if the hypothetical question includes all of the claimant’s limitations).

      We reverse and remand for further proceedings.

      REVERSED AND REMANDED.




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