                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             SEP 11 2017

                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

 KATINA ANN PARKER,                           No. 15-16936

                   Plaintiff-Appellant,       D.C. No. 1:14-cv-00763-BAM

 v.                                            MEMORANDUM*

 NANCY A. BERRYHILL, Acting
 Commissioner Social Security,

                   Defendant-Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                  Barbara McAuliffe, Magistrate Judge, Presiding

                       Argued and Submitted May 16, 2017
                            San Francisco, California

Before: THOMAS, Chief Judge, WARDLAW, Circuit Judge, and MORRIS,**
District Judge.

      Katina Parker (“Parker”) appeals the denial of her application for

Supplemental Security Income benefits under Title XVI of the Social Security Act.

We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand for further


      *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
           The Honorable Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
proceedings. The parties are familiar with the facts, which we repeat here only to

the extent necessary to explain our decision.

      Parker argues that the ALJ erred when he rejected three limitations described

by her examining psychologist without providing legally sufficient reasons for

doing so. The three limitations are: 1) Parker’s marked difficulty interacting

adequately with others; 2) Parker’s moderate difficulty responding to changes in a

routine work setting; and 3) Parker’s moderate difficulty with two-part

instructions.

      A.        Marked Difficulty Interacting with Others

      Examining psychologist Dr. Robert Bilbrey, Ph.D. conducted a functional

assessment of Parker on March 28, 2011. Dr. Bilbrey opined that Parker would

have “marked difficulty interacting adequately with others.” The term “marked”

denotes a serious limitation in function. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,

Listing 12.00(F)(2)(d). It is reasonable to infer that Dr. Bilbrey intended the term

“others” to include not only the public, but also supervisors and co-workers. Dr.

Bilbrey made this determination based upon his personal observations of Parker,

and Parker’s reported minimal interactions with neighbors and strangers.

      Non-examining consultant Dr. Harvey Bilik, Psy.D., conducted a functional

assessment of Parker on April 25, 2011. Dr. Bilik made his assessment based upon


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a review of Parker’s records. Dr. Bilik’s functional assessment of Parker differed

significantly from the functional assessment of Dr. Bilbrey on one matter. Dr. Bilik

offered a less restrictive view of Parker’s ability to work with co-workers and

supervisors. Dr. Bilik indicated on his functional assessment form that Parker was

only “moderately limited” in her “ability to get along with co-workers or peers.”

Dr. Bilik opined that Parker appeared “able to interact appropriately with others,”

but “may benefit from reduced interactions with the public.” Non-examining

consultant A. Garcia, M.D., reviewed Parker’s records on October 3, 2011. Dr.

Garcia summarily agreed with Dr. Bilik’s functional assessment.

      The ALJ adopted Dr. Bilik’s assessment of Parker’s ability to interact with

co-workers and supervisors. The ALJ failed to explain why he rejected Dr.

Bilbrey’s opinion that Parker would have a marked difficulty interacting with

others.

      Social Security law regards a psychologist as a “physician.” Lester v.

Chater, 81 F.3d 821, 830 n. 7 (9th Cir. 1995) as amended (Apr. 9, 1996). The law

gives the opinion of an examining physician more weight than the opinion of a

non-examining physician. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004).

An ALJ may reject the contradicted opinion of an examining physician only if he

provides specific, legitimate reasons supported by substantial evidence in the


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record. See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). An

ALJ may satisfy the substantial evidence requirement by “setting out a detailed and

thorough summary of the facts and conflicting clinical evidence,” stating his

interpretation of the evidence, and making findings. Reddick v. Chater, 157 F.3d

715, 725 (9th Cir. 1998). The ALJ must do more, however, than state conclusions.

Id.

      The opinion of a non-examining physician cannot by itself constitute

substantial evidence that justifies the rejection of an opinion of an examining

physician. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Lester, 81

F.3d at 831. The opinion of a non-examining physician may qualify as substantial

evidence only if other independent evidence in the record supports the opinion. Id.

      The ALJ committed legal error when he rejected the limitation described by

Dr. Bilbrey — that Parker would have a “marked difficulty interacting adequately

with others” — without providing any specific, legitimate reasons for doing so. See

Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). The ALJ identified no

independent evidence in the record that supports his decision to reject Dr. Bilbrey’s

opinion. The ALJ offers only a conclusory statement that his assessment of

Parker’s residual functional capacity “is supported by the opinions of the

consultative examiners and the state-agency consultants.”


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      B.     Moderate Difficulty Responding to Change in Routine Work
             Setting, Moderate Difficulty with Two-Part Instructions

      Dr. Bilbrey opined that Parker had two other limitations: moderate difficulty

responding to changes in a routine work setting; and moderate difficulty with two-

part instructions. These two limitations were uncontradicted. Dr. Bilik agreed that

Parker possessed these limitations.

      Dr. Bilik noted on his functional assessment form that Parker had a moderate

limitation in her “ability to respond appropriately to changes in the work setting.”

Dr. Bilik also noted that Parker may not be able to understand, remember, and

carry out “complex instructions.” The ALJ failed to include either of these

limitations, described by Dr. Bilbrey, in the hypothetical that he presented to the

vocational expert.

      An ALJ may reject the uncontradicted opinions of an examining physician

only if he provides clear and convincing reasons supported by substantial evidence.

Lester, 81 F.3d at 830. The ALJ failed to explain why he rejected these

uncontradicted opinions of Dr. Bilbrey. The ALJ’s failure to provide clear and

convincing reasons for rejecting these opinions constituted legal error.

      When an ALJ fails to provide adequate reasons for rejecting the opinions of

an examining physician, the opinions must be accepted as a matter of law.

Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). The ALJ failed to provide

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legally sufficient reasons for rejecting Dr. Bilbrey’s opinions. The opinions of Dr.

Bilbrey must be accepted as true on remand.

      C.     Hypothetical Question

      Parker argues that the ALJ’s hypothetical question to the vocational expert

was legally deficient. We agree. Hypothetical questions posed to a vocational

expert must include all of the medical and vocational limitations of the claimant

supported by substantial evidence in the record. Osenbrock v. Apfel, 240 F.3d

1157, 1163 (9th Cir. 2001). Here, the ALJ’s hypothetical question was legally

deficient because it was based upon his improper rejection of three of Dr. Bilbrey’s

opinions.

      The ALJ, on remand, must accept all of the limitations described by Dr.

Bilbrey as true. The ALJ must ask the vocational expert whether Parker can

perform jobs in significant numbers in the national economy, taking into

consideration the following three additional limitations: 1) that Parker has “marked

difficulty interacting adequately with others,” including supervisors, co-workers,

and the general public; 2) that Parker has moderate difficulty with two-part

instructions; and 3) that Parker has moderate difficulty responding to changes in a

routine work setting.

      REVERSED AND REMANDED for further proceedings.


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