                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 12 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


STELLA WEISKOPF,                                 No.   15-16008

              Plaintiff-Appellant,               D.C. No. 2:13-cv-01979-MHB

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

              Defendant-Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Michelle H. Burns, Magistrate Judge, Presiding

                        Argued and Submitted May 18, 2017
                             San Francisco, California

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

      Appellant applied for Social Security Disability and Supplemental Security

Income benefits, alleging she became disabled and was unable to work because she


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
suffered from severe chronic migraine headaches, chronic pain, depression and

anxiety. The ALJ concluded that Appellant was not disabled within the meaning

of the Social Security Act. Appellant’s timely request for review of the ALJ

decision was denied by the Appeals Council. Appellant subsequently challenged

the ALJ’s decision in the district court, which affirmed the decision to deny

benefits. This appeal followed.

      “We review the district court’s order affirming the ALJ’s denial of Social

Security benefits de novo, and reverse only if the ALJ’s decision was not supported

by substantial evidence in the record as a whole or if the ALJ applied the wrong

legal standard.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (citations

omitted). In reviewing the ALJ’s decision denying benefits, the entire record is

considered as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting

Robbins v. Soc. Sec. Admin.,466 F.3d 880, 882 (9th Cir. 2006)). Only the reasons

provided by the ALJ in the determination are reviewed. See Connett v. Barnhart,

340 F.3d 871, 874 (9th Cir 2003).

      The ALJ did not set forth clear, specific and legitimate reasons for rejecting

the medical opinions of Appellant’s treating pain management specialist and

treating neurologist in determining Appellant’s ability to do work-related activities.

These two treating physicians provided opinions of her functional capacity. The
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ALJ rejected both opinions, assigning one of them “little weight” and the other

“limited weight.” But she failed to provide specific and legitimate reasons for

doing so. See Orn, 495 F.3d at 632 (“Even if the treating doctor’s opinion is

contradicted by another doctor, the ALJ may not reject this opinion without

providing specific and legitimate reasons supported by substantial evidence in the

record.” (quoting Redding v. Chater, 157 F.3d 715, 725 (9th Cir. 1998))). The ALJ

recited portions of treating physicians’ treatment notes and then simply stated their

opinions of Weiskopf’s functional capacity were inconsistent with the notes. The

ALJ failed to explain why the conclusion she drew from the treatment notes—that

Weiskopf can perform limited, sedentary work—makes any more sense than the

treating physicians’ conclusions. We have rejected similar formulaic explanations:

      To say that medical opinions are not supported by sufficient objective
      findings or are contrary to the preponderant conclusions mandated by
      the objective findings does not achieve the level of specificity our
      prior cases have required, even when the objective factors are listed
      seriatim. The ALJ must do more than offer his conclusions. He must
      set forth his own interpretations and explain why they, rather than the
      doctors’, are correct.

Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988).

      The ALJ thus did not sufficiently explained why the treating physicians’

opinions did not deserve “controlling weight,” and further, she completely failed to


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explain why the opinions merited only “little” and “limited” weight. Even when

there is substantial evidence contradicting a treating physician’s opinion such that

it is no longer entitled to controlling weight, the opinion is nevertheless “entitled to

deference.” Orn, 495 F.3d at 633 (quoting SSR 96-2P, at *4). To determine the

amount of deference, the opinion “must be weighed using all of the factors

provided in 20 C.F.R. [§] 404.1527.” SSR 96-2P, at *4. These factors include,

among others, the length of the treatment relationship, frequency of examination,

and the nature and extent of the treatment relationship. 20 C.F.R. § 404.1527(c).

The ALJ did not engage in this analysis.

      Furthermore, the ALJ did not properly analyze Weiskopf’s evidence of

fibromyalgia. The ALJ did not consider fibromyalgia when determining

Weiskopf’s residual functional capacity, even though she was supposed to consider

all medically determinable impairments (MDIs) — even those that are not severe.

See 20 C.F.R. § 404.1545 (“We will consider all of your medically determinable

impairments of which we are aware, including your medically determinable

impairments that are not ‘severe,’ as explained in §§ 404.1520(c), 404.1521, and

404.1523, when we assess your residual functional capacity.”). The ALJ explained

that she refused to do so because “examinations d[id] not reveal any trigger point

tenderness.” This analysis was at odds with Social Security Ruling 12-2P. The

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ruling describes two ways that fibromyalgia may be determined to be an MDI, only

one of which requires trigger point tenderness. The ALJ ignored the second

possible basis for finding that a claimant has an MDI of fibromyalgia:

      1) A history of widespread pain . . .;
      2) Repeated manifestations of six or more FM symptoms, signs, or co-
      occurring conditions especially manifestations of fatigue, cognitive or
      memory problems (“fibro fog”), waking unrefreshed, depression,
      anxiety disorder, or irritable bowel syndrome; and
      3) Evidence that other disorders that could cause these repeated
      manifestations of symptoms, signs, or co-occurring conditions were
      excluded.
SSR 12-2P, at *3. She therefore failed to adequately explain why she did

not consider Weiskopf’s fibromyalgia in her residual functional capacity

determination.

      “When an ALJ’s reasons for rejecting the claimant’s testimony are

legally insufficient and it is clear from the record that the ALJ would be

required to determine the claimant disabled if [s]he had credited the

claimant’s testimony, we remand for a calculation of benefits.” Orn, 495

F.3d at 640 (quoting Connett, 340 F.3d at 876). That is not the case here

because there are “outstanding issues that must be resolved before a proper

disability determination can be made.” See Treichler v. Comm’r of Soc. Sec.

Admin., 775 F.3d 1090, 1107 (9th Cir. 2014) (quoting Vasquez v. Astrue,

                                          5
572 F.3d 586, 593 (9th Cir. 2009)). We conclude that the ALJ committed

legal error and that remand to the agency is appropriate to determine the

extent of Appellant’s impairment. The decision of the District Court is

therefore REVERSED and the matter is REMANDED for further

proceedings.




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