                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 9 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MARTIN A. SCHIAFFINO,                           No.    18-35853

                Plaintiff-Appellant,            D.C. No. 3:17-cv-05541-RSM

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

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                    Argued and Submitted December 13, 2019
                              Seattle, Washington

Before: GOULD and BERZON, Circuit Judges, and BENITEZ, ** District Judge.

      Martin Schiaffino appeals the district court’s judgment affirming the Social

Security Administration’s final decision to deny Schiaffino’s application for

disability benefits. The Administrative Law Judge (“ALJ”) determined that

Schiaffino was not disabled. We review de novo the district court’s order affirming


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Roger Thomas Benitez, United States District Judge
for the Southern District of California, sitting by designation.
the Social Security Administration’s denial of benefits. Garrison v. Colvin, 759

F.3d 995, 1010 (9th Cir. 2014). Social Security ALJ decisions are reviewed for

legal error and substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1

(9th Cir. 2005).

      The ALJ committed errors that were not harmless. We reverse and remand

for further proceedings.

      1. The ALJ impermissibly discounted the opinion of the examining medical

professional, Dr. Thompson. “To reject [the] uncontradicted opinion of a treating

or examining doctor, an ALJ must state clear and convincing reasons that are

supported by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th

Cir. 2017) (alteration in the original) (quoting Ryan v. Comm’r of Soc. Sec., 528

F.3d 1194, 1198 (9th Cir. 2008)). The ALJ gave Dr. Thompson’s opinion “minimal

weight” on the grounds that it was not “fully consistent” with other evidence and

that Dr. Thompson’s assessment of Schiaffino’s limitations “lack[ed] specificity.”

Neither reason comports with the record.

      Dr. Thompson’s opinion is “fully consistent” with the record. The only

inconsistency cited by the ALJ is that “during his examination with Dr. Thompson,

the claimant presented as leaning forward with his head down facing the ground

during most of the examination,” whereas other medical records “do not document

similar presentation.” Not so. The medical records document that Schiaffino often


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had a “tense” affect, and had “minimal eye contact” with the doctor during

multiple visits but sometimes had “good” eye contact. The fact that “symptoms

wax and wane in the course of treatment” is to be expected; it does not create an

inconsistency. See Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Dr.

Thompson’s opinion is consistent with the record.

       The ambiguity in Dr. Thompson’s opinion does not provide a clear and

convincing reason for discounting her uncontradicted opinion. Dr. Thompson

concluded that “[t]he likelihood of the claimant’s mental health condition

improving in the next 12 months is guarded. His symptoms are severe. He is angry

and has low frustration tolerance.” She also opined that Schiaffino’s “ability adapt

to routine changes in a typical work setting is likely to be impacted by reported

depressed mood, increased anxiety, low frustration tolerance, difficulty getting

along with others, anger, insomnia, and variable mood.” The ALJ found Dr.

Thompson’s opinion ambiguous because “her assessment that [Schiaffino] is

‘likely to’ have difficulty in adapting to changes does not quantify the extent of

this difficulty.”

       The ALJ erred by dismissing the ambiguous opinion when it should have

further developed the record. “Social Security proceedings are inquisitorial rather

than adversarial.” Sims v. Apfel, 530 U.S. 103, 111–12 (2000). An ALJ has a duty

to develop the record further “when there is ambiguous evidence or when the


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record is inadequate to allow for proper evaluation of the evidence.” Mayes v.

Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001); Garcia v. Comm’r of Soc. Sec.,

768 F.3d 925, 930 (9th Cir. 2014). Dr. Thompson was the only examining medical

professional who opined on Schiaffino’s ability to work, and she opined that his

“severe” symptoms would result in work limitations. Because more weight is due

to the opinion of an examining medical professional than to a nonexamining one,

Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995), the ALJ’s analysis might

have changed if Dr. Thompson was given the opportunity to clarify her opinion.

      2. The ALJ also erred in rejecting the VA’s determination that Schiaffino

was disabled. An “ALJ must ordinarily give great weight to a VA determination of

disability.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). An ALJ

may only discount a VA disability rating “if he gives persuasive, specific, valid

reasons for doing so that are supported by the record.” Id.

      None of the ALJ’s stated reasons for rejecting the VA rating are valid. First,

the ALJ rejected the VA disability determination because of the different

evidentiary burdens in VA and Social Security proceedings, but it failed to suggest

or explain how those standards differ materially as applied here. The district court

correctly rejected this reason as a basis for discounting the VA rating.

      Second, the ALJ concluded that Schiaffino’s medical record was

“inconsistent with disabling mental health limitations” because “[t]he claimant has


                                          4
had no significant therapy or counseling since May 2013” and he has never been

“hospitalized due to mental disorders.” Hospitalization is not required to show that

mental health conditions such as PTSD, OCD, and anxiety are disabling from

employment. The ALJ recognized that Schiaffino does see a psychiatrist regularly,

but faulted him for not going more often. “[I]t is a questionable practice to chastise

one with a mental impairment for the exercise of poor judgment in seeking

rehabilitation.”1 Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (quotation

omitted).

      Third, the ALJ discounted the VA’s disability determination because it

found several of Schiaffino’s activities inconsistent with “social and cognitive

functioning” that is “limited to the extent that all work would be prohibited.”

“While a claimant need not vegetate in a dark room in order to be eligible for

benefits,” the ALJ may discount evidence of disability “when the claimant reports

participation in everyday activities indicating capacities that are transferable to a

work setting.” Molina v. Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012) (emphasis

added) (internal quotations and citations omitted). The ALJ cited several activities

of Schiaffino, but they do not show capacities transferrable to a work setting.2 For


1
  In Nguyen, the claimant suffered from depression, id., but the observation that a
mental health impairment may impact a claimant’s judgment regarding their own
treatment is similarly applicable to PTSD, OCD, and anxiety.
2
  Earlier in the ALJ’s decision, the ALJ discounted Schiaffino’s credibility as a
historian of his own symptoms because she concluded that Schiaffino’s activities

                                          5
example, during a family trip to Disneyland, Schiaffino “took more [anti-anxiety

medication] than prescribed” and coped with his anxiety and frustration levels by

taking as many breaks as needed to “take time out to get away from crowds.”

Schiaffino is unlikely to be able to take unlimited breaks to combat his anxiety,

PTSD, and OCD while employed. And many of the activities cited by the ALJ,

such as “go[ing] out to the woods, shoot[ing] for relaxation, . . . running four miles

a day, [and] going four wheeling” are solitary activities consistent with

Schiaffino’s social limitations. Because the cited activities do not show “capacities

that are transferable to a work setting,” see id., they are not “persuasive, specific,

valid reasons for” discounting the VA disability rating. McCartey, 298 F.3d at

1076.

        3. These errors are not harmless. The ALJ’s assessment of Schiaffino’s

residual functional capacity (“RFC”) may well change once Dr. Thompson’s

opinion is clarified and given due consideration, and the VA’s disability

determination is given proper weight.

        4. An award of benefits by this court is not appropriate, because the record is

not “free of conflicts, ambiguities, or gaps.” Leon v. Berryhill, 880 F.3d 1041,


such as running four miles a day and visiting Disneyland were inconsistent with
the symptom severity he reported. The ALJ discussed the same activities in the
context of the VA rating, and concluded that the activities showed an ability to
work. Transferability to a work setting is relevant here, although not relevant to an
evaluation of Schiaffino’s reliability as a historian.

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1047 (9th Cir. 2017). The ALJ discounted Dr. Thompson’s opinion because it

found that the opinion was ambiguous as to the extent of Schiaffino’s limitations.

As clarification from Dr. Thompson is needed before a proper decision on the

award of benefits can be made, we remand for further proceedings.

      REVERSED AND REMANDED.




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