                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAR 5 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RACHEL EULA DRAKE,                              No.    18-35264

                Plaintiff-Appellant,            D.C. No. 3:16-cv-02234-JO

 v.
                                                MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Robert E. Jones, District Judge, Presiding

                          Submitted November 5, 2019**
                                Portland, Oregon

Before: PAEZ and RAWLINSON, Circuit Judges, and KOBAYASHI,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
      Plaintiff-Appellant Rachel Eula Drake (“Drake”) appeals from the district

court’s judgment affirming the Social Security Commissioner’s (“the

Commissioner”) determination denying social security disability benefits. We

have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s

summary judgment order de novo and the administrative law judge’s (“ALJ”) June

15, 2015 decision (“2015 Decision”), for legal error and for substantial evidence.

See Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). We reverse and

remand.

      The ALJ was correct that the ultimate ruling in the October 6, 2011 decision

by another ALJ that Drake was not disabled (“2011 Decision”) is not entitled to res

judicata effect because Drake established the existence of new severe impairments,

which constituted “changed circumstances.” See Chavez v. Bowen, 844 F.2d 691,

693 (9th Cir. 1988) (citation omitted). However, the ALJ committed reversible

error in failing to give res judicata effect to the residual functional capacity

(“RFC”) findings in the 2011 Decision. See id. at 693-94; Soc. Sec. Admin.

Acquiescence Ruling (“AR”) 97-4(9), 1997 WL 742758, at *3 (Dec. 3, 1997).

Because there is no evidence that the limitations reflected in the 2011 Decision’s

RFC findings improved, they should have been considered in the formulation of

the 2015 Decision’s RFC finding. See Chavez, 844 F.2d at 694 (“The first

administrative law judge’s findings concerning the claimant’s residual functional


                                           2
capacity, education, and work experience are entitled to some res judicata

consideration in subsequent proceedings.” (citation omitted)); AR 97-4(9), 1997

WL 742758, at *3 (“If the claimant rebuts the presumption, adjudicators then must

give effect to certain findings . . . contained in the final decision by an ALJ or the

Appeals Council on the prior claim, when adjudicating the subsequent claim. For

this purpose, this Ruling applies only to a finding of a claimant’s residual

functional capacity . . . .”).

       The ALJ found that, through her date last insured, Drake could perform the

occupation of addresser clerk.1 The record does not address whether Drake would

still be able to perform the occupation of addresser clerk if the following

limitations from the 2011 Decision’s RFC finding were included within Drake’s

RFC: the requirement that Drake have the option to alternate freely between sitting

and standing during periods when she would be expected to sit; 2 and the limitation


       1
         The ALJ also found that Drake could perform the occupations of document
preparer and telephone information clerk. However, the Commissioner concedes
that the ALJ erred in relying on the document preparer and telephone information
clerk occupations because each requires a reasoning level that is beyond Drake’s
RFC.
       2
         The vocational expert (“VE”) was presented with hypotheticals including
the sit/stand option, but the hypotheticals also included the requirement that the
person is limited to sitting for no more than four hours in an eight-hour work day.
The limitation to sitting for more than four hours per work day is not part of the
2011 Decision’s RFC finding. Thus, the VE’s testimony does not address whether
the requirement that Drake be given a sit/stand option would have precluded her
from performing the occupation of addresser clerk.

                                           3
to only occasional fingering and feeling with her non-dominant, left upper

extremity. The other limitations in the 2011 Decision’s RFC finding that were not

incorporated into the ALJ’s RFC finding are not at issue because they would not

preclude the performance of the addresser clerk occupation. See Dictionary of

Occupational Titles (“DOT”) § 209.587-010, 1991 WL 671797. Because we

cannot determine, based on the existing record, whether the ALJ would still have

found Drake “not disabled” if the RFC findings in the 2011 Decision had been

incorporated, we reverse the 2015 Decision and remand the case to the agency for

further proceedings.

      In addition, we hold that the ALJ committed reversible error when rejecting

Drake’s statements about the nature and severity of her migraine headaches and

failing to incorporate the limitations caused by Drake’s migraine headaches into

the 2015 Decision’s RFC findings. Because the record contains objective medical

evidence regarding Drake’s migraine headaches during the relevant period, which

could reasonably produce the symptoms she described, and there was no evidence

of malingering, the ALJ was required to “give specific, clear, and convincing

reasons for rejecting the testimony by identifying which testimony the ALJ found

not credible and explaining which evidence contradicted that testimony.” See

Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (brackets, emphases,

citation, and internal quotation marks omitted). While the ALJ gave specific


                                         4
reasons for rejecting Drake’s statements about her migraine headaches, these

reasons are neither convincing nor supported by substantial evidence in the record.

See Marsh v. Colvin, 792 F.3d 1170, 1173 n.2 (9th Cir. 2015) (stating that the

ALJ’s reasons for rejecting a claimant’s testimony about the severity of her

symptoms “must be supported by substantial evidence from the administrative

record” (citation omitted)). We therefore remand with instructions to incorporate

the effects of Drake’s migraine headaches into her RFC.

      We remand to the district court to further remand the case to the agency for

proceedings consistent with this disposition. Because we remand for incorporation

of the RFC findings in the 2011 Decision and the effects of Drake’s migraine

headaches into Drake’s RFC, we do not reach Drake’s other arguments. See, e.g.,

Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990).

      REVERSED AND REMANDED.




                                         5
                                                                           FILED
Drake v. Saul, Case No. 18-35264                                             MAR 5 2020
Rawlinson, Circuit Judge, dissenting in part:                           MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

      The majority predicates its conclusion primarily on the premise that the

Administrative Law Judge (ALJ) in the 2015 proceeding was required to give res

judicata effect to the 2011 residual function capacity (RFC) determination made by

a prior ALJ. I disagree. The majority acknowledges that res judicata does not

apply to the ultimate determination of non-disability made in the 2011 proceeding.

However, the majority inexplicably reaches the opposite conclusion for the 2011

RFC determination. But that conclusion is inconsistent with our precedent because

the claimant, Rachel Drake, submitted “new and material evidence to the second

judge,” including new impairments. Under these circumstances, res judicata effect

is not given to a prior RFC determination. Chavez v. Bowen, 844 F.2d 691, 694

(9th Cir. 1988) (citation and internal quotation marks omitted). I disagree with the

majority’s misapplication of our precedent.

      I also disagree with the majority’s conclusion that the ALJ’s discounting of

Drake’s testimony regarding the severity of her migraine headaches was not

supported by substantial evidence. Our review for substantial evidence is “highly

deferential.” Rounds v. Commissioner, 807 F.3d 996, 1002 (9th Cir. 2015), as

amended (citation omitted).



                                          1
      An ALJ adequately discounts a claimant’s symptom testimony if he gives

clear and convincing reasons for the decision. See Greger v. Barnhart, 464 F.3d

968, 972 (9th Cir. 2006); see also Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir.

2007); Valentine v. Commissioner, 574 F.3d 685, 693 (9th Cir. 2009).

      The ALJ determined that Drake’s “allegations of migraines occurring at least

once a week are not supported by treatment records.” The ALJ noted that Drake

reported having a headache for one week after hitting her head while entering a car.

One month later she reported a migraine headache lasting four days, which she

attributed to Trazodone. “Anxiety medication helped” the migraine. The ALJ also

relied on the fact that treatment records from Drake’s primary care physician

“reflect[ed] few complaints of migraines.” Drake also reported her migraines as

stable on medication. These observations are of the same nature as those we have

described as clear and convincing. See, e.g., Parra, 481 F.3d at 750-51

(mentioning with approval the ALJ’s reliance on medical reports to determine that

the claimant’s impairments were not as severe as described by the claimant). The

majority’s conclusory statement that the specific reasons “are neither convincing

nor supported by substantial evidence in the record” is inconsistent with the

administrative record and with our precedent requiring deference to the ALJ’s

determination.

                                          2
I respectfully dissent.




                          3
