                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAR 29 2017
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALEXIA M. COLTER,                                No.   15-15744

               Plaintiff-Appellant,              D.C. No. 2:13-cv-01294-BSB

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

               Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    Bridget S. Bade, Magistrate Judge, Presiding

                       Argued and Submitted March 16, 2017
                             San Francisco, California

Before: TALLMAN and WATFORD, Circuit Judges, and GUIROLA,** Chief
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The Honorable Louis Guirola, Jr., Chief United States District Judge
for the Southern District of Mississippi, sitting by designation.
      Alexia M. Colter appeals the district court’s decision affirming the denial of

her application for Disability Insurance Benefits (DIB) under Title II of the Social

Security Act and her application for Supplemental Security Income (SSI) under

Title XVI of the Social Security Act. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review the district court’s decision de novo and the administrative law

judge’s (ALJ) decision for substantial evidence. Garrison v. Colvin, 759 F.3d 995,

1009-10 (9th Cir. 2014). We reverse the district court’s decision and remand to the

Commissioner for further proceedings.

      The ALJ did not provide specific, clear, and convincing reasons to support

her finding that Colter’s daily activities were inconsistent with Colter’s complaints

of pain and fatigue. See Burrell v. Colvin, 775 F.3d 1133, 1136-38 (9th Cir. 2014).

In rejecting Colter’s complaints, the ALJ cited daily activities that would have

occupied only a small portion of Colter’s day. The ALJ did not specifically find

that Colter would have been capable of performing those activities for a substantial

portion of the day or that those activities could be transferred to a work setting.

See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).

      The ALJ did not provide specific, legitimate reasons supported by

substantial evidence for assigning reduced weight to the medical opinion of

Colter’s neurologist, Dr. Nirmala Aryal. See Bray v. Comm’r of Soc. Sec. Admin.,


                                           2
554 F.3d 1219, 1228 (9th Cir. 2009). The ALJ discredited Dr. Aryal’s opinion that

Colter’s headaches prevented employment, because Colter had experienced periods

of improvement. The ALJ failed to analyze the periods of improvement in the

context of Colter’s treatment history to ensure that the improvement was not

temporary. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (explaining

that treatment records reflecting improvement “must be viewed in light of the

overall diagnostic record”). The ALJ also referenced Colter’s motor strength and

her ability to walk on her heels and toes and perform tandem walking, but the ALJ

failed to explain how these findings disproved the severity or frequency of Colter’s

headaches. Furthermore, the ALJ’s assertion that Dr. Aryal’s opinion may be

affected by sympathy or a desire to avoid tension is speculative and unsupported.

See Lester, 81 F.3d at 832; see also Payton v. Colvin, 632 F. App’x 326, 327 (9th

Cir. 2015).

      The ALJ did not provide specific, legitimate reasons supported by

substantial evidence for assigning reduced weight to the medical opinion of

Colter’s rheumatologist, Dr. Michael Fairfax. The ALJ found, without further

explanation, that other, unspecified evidence in the record was inconsistent with

Dr. Fairfax’s findings. The ALJ also relied on a very limited discussion of Colter’s

daily activities to support rejecting Dr. Fairfax’s opinion. The ALJ erred by: (1)


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failing to identify the specific evidence that contradicted Dr. Fairfax’s opinion, and

(2) failing to assess whether Colter could perform her daily activities for a

substantial part of the day in a work environment. See Garrison, 759 F.3d at 1012

(“The ALJ must do more than state conclusions. He must set forth his own

interpretations and explain why they, rather than the doctors’, are correct.”

(quotation omitted)); Morgan, 169 F.3d at 600 (“If a claimant is able to spend a

substantial part of his day engaged in pursuits involving the performance of

physical functions that are transferable to a work setting, a specific finding as to

this fact may be sufficient to discredit a claimant’s allegations.”).

      Despite the ALJ’s erroneous findings, the record as a whole raises doubts as

to whether Colter is disabled within the meaning of the Social Security Act. See

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1107 (9th Cir. 2014).

Therefore, we remand to the district court with instructions to remand to the

Commissioner of Social Security for further proceedings.

      Appellee shall bear all costs of appeal. See Fed. R. App. P. 39(a)(3).

      REVERSED AND REMANDED.




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