                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 19 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



TROY MASSEY,                                     No. 10-35004

               Plaintiff - Appellant,            DC No. 3:08 cv 0858 JO

  v.
                                                 MEMORANDUM *
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

               Defendant - Appellee.



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

                             Submitted October 8, 2010 **
                                 Portland, Oregon

Before:        TASHIMA, PAEZ, and CLIFTON, Circuit Judges.

       Troy Massey appeals from the district court’s decision affirming the

Commissioner’s final denial of benefits under Titles II and XVI of the Social

Security Act. Because we conclude that the Commissioner erred in rejecting the

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
testimony of Dr. Richard Kirkpatrick (“Dr. Richard”) and lay witness Dorothy

Massey, and that the ALJ posed an incomplete hypothetical to the vocational

expert (“VE”), we reverse and remand for further proceedings.

      1.     It is unclear whether Massey’s frequent emergency room visits and

erratic management of his Crohn’s disease are the result of a painkiller addiction or

of his lack of health insurance and financial limitations. We defer to the ALJ’s

interpretation of the evidence on this issue, see Burch v. Barnhart, 400 F.3d 676,

679 (9th Cir. 2005), and the ALJ’s interpretation that Massey is engaged in drug-

seeking behavior is a clear and convincing reason for disregarding his testimony.

See Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001).

      2.     However, the ALJ did not provide specific and legitimate reasons

supported by substantial evidence for rejecting the opinion of treating physician

Dr. Richard. See id. It is irrelevant that Massey did not report all of the symptoms

noted by Dr. Richard at his emergency room visits because the only symptoms that

motivated his trips to the emergency room were vomiting, nausea and abdominal

pain. It was not unreasonable for Dr. Richard to include “bowel obstruction” and

“weight loss” in his list of Massey’s symptom, because Massey had suffered from

both in the past.




                                          2
      The opinion of Dr. Donald Kirkpatrick (“Dr. Donald”) is not necessarily

entitled to more weight simply because he is a specialist. See 20 C.F.R. §

404.1527(d) (setting forth a number of factors to be considered in weighing

multiple physician opinions, only one of which is area of specialty). Massey has

seen Dr. Donald less frequently than he has seen Dr. Richard, and he visits Dr.

Richard when he experiences symptom flare-ups. Dr. Donald’s 2005 statement

that Massey was doing well on sulfasalazine is undermined by the fact that Massey

went to the emergency room for his symptoms later that same day.

      An ALJ may reject a treating physician’s testimony if it is based largely on

the subjective complaints of a non-credible claimant, Tommasetti v. Astrue, 533

F.3d 1035, 1041 (9th Cir. 2008). Dr. Richard’s assessment, however, is based on

objective medical evidence, including a prior diagnosis of Crohn’s disease, test

results from 2003 showing bowel obstruction (which Dr. Donald thought might

still be present even after Massey received his normal follow-through results in

September of 2004), and Massey’s numerous visits to the emergency room and to

Dr. Richard’s office during symptom flare-ups.

      3.     Finally, the reasons the ALJ provided for disregarding Dorothy

Massey’s testimony about her son’s symptoms are not supported by the record.

Her testimony is not internally inconsistent when interpreted in a reasonable


                                          3
fashion in light of the remainder of the record. Massey’s symptoms vary widely in

severity from one day to the next, and his ability to engage in certain activities on

days when his symptoms are not severe does not contradict answers that indicate

more severe restrictions. Additionally, the ALJ may not reject lay testimony solely

because it is not supported by objective medical evidence. Bruce v. Astrue, 557

F.3d 1113, 1116 (9th Cir. 2009).1

      4.     Improperly rejected treating physician testimony is credited as true as

a matter of law. Widmark v. Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006).

Therefore, the ALJ’s hypothetical to the VE should take account of Dr. Richard’s

opinion. The hypothetical also should take account of Dorothy Massey’s

testimony, absent additional, legitimate reasons for rejecting it. Massey’s counsel

did present the limitations documented by the improperly rejected testimony to the

VE, but the VE’s responses to his questions were inaudible. So that the

Commissioner can obtain new, unambiguous VE testimony in response to a

complete hypothetical, we reverse and remand to the district court with directions




      1
             The Commissioner is correct that SSR 88-13, which is cited in Bruce,
has been superseded, but the policy interpretations contained in that ruling were
codified in 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3), and remain valid. See
SSR 95-5p at *1.

                                           4
that it reverse and remand to the Commissioner for further proceedings consistent

with this disposition.

REVERSED and REMANDED.




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