                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 19 2010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



JEFFREY MEIER,                                 No. 10-35018

              Plaintiff - Appellant,           D.C. No. 4:09-cv-00031-SEH
                                               (RKS)
  v.

MICHAEL J. ASTRUE,                             MEMORANDUM *
COMMISSIONER OF
SOCIAL SECURITY

              Defendant - Appellee.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                          Submitted November 4, 2010 **
                                Portland, Oregon

Before: W. FLETCHER and FISHER, Circuit Judges, and JONES, District
Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
      Jeffrey Meier appeals the district court’s affirmance of the denial of his

application for disability insurance benefits under Title II of the Social Security

Act. Meier contends that the decision denying benefits was not supported by

substantial evidence. Meier argues that the administrative law judge (“ALJ”) erred

in discounting the opinions of a treating physician and in disregarding evidence of

his severe depression, degenerative disc disease, and nerve root impingement.

Meier also argues that the ALJ did not provide clear and convincing evidence for

finding Meier’s testimony not credible and that the ALJ improperly relied on the

testimony of the vocational expert.

      We review de novo the district court’s decision upholding the denial of

benefits. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.

2009). A decision to deny benefits will be set aside only if it is not supported by

substantial evidence or if it rests on legal error. Id. We reverse and remand.

       In his decision to deny Meier’s application, the ALJ determined that Meier

was not entirely credible and rejected the opinion of one of Meier’s doctors,

Melchisedek L. Margaris, M.D. The primary basis for discounting the evidence

was that Meier engaged in activities that did not support his testimony or the

conclusion of Dr. Margaris. This basis was flawed.




                                           2
       First, a large portion of the ALJ’s decision recounts Meier’s activities in

2002 and 2003. Because Meier suffers from a degenerative condition, Meier’s

participation in activities several years ago carries less weight than does his more

recent activity level.

       Furthermore, the activities that Meier has continued to engage in, namely,

working at his carwash, running errands, driving his car, and operating a seasonal

fireworks stand, are insufficient evidence to reject Meier’s testimony and the

opinion of Dr. Margaris. “The Social Security Act does not require that claimants

be utterly incapacitated to be eligible for benefits.” Fair v. Bowen, 885 F.2d 597,

603 (9th Cir. 1989). Although it might be reasonable for an ALJ to infer that a

claimant’s pain is not disabling when the claimant spends a substantial part of his

day engaged in pursuits involving the performance of activities that are

transferable to a work setting, id., the evidence here does not show that Meier spent

a substantial part of his day engaged in any activity that is transferable to the

workplace.

       Meier testified that he usually spent most of the day lying on the couch and

thus was unable to contribute significantly at home. He regularly drove to a

carwash, checked on the carwash equipment, counted coins, and hosed down bays,

but he did not engage in these activities for a sufficient duration to undermine his


                                           3
claim of disabling pain or Dr. Margaris’s conclusions about his functional

limitations. Meier’s trips to the carwash only required him to drive for 15 minutes

each way. He counted coins only for brief periods and was able to take breaks. He

brought his fifth wheel to his fireworks stand so he could lie down when necessary.

The ALJ also repeatedly noted that Meier told his doctors that he was self-

employed and owned his own carwash. Merely owning a carwash, without more,

does not conflict with Meier’s limitations. None of these activities required Meier

to spend a substantial amount of time working, and none are inconsistent with his

alleged disability.

      Meier did occasionally engage in more strenuous activities such as lifting

bags of salt and garbage and shoveling snow, but these activities were not

performed consistently and were done, as the ALJ noted, because Meier did not

have anyone else to do the work.

      Meier’s daily activities did not mirror the demands of a full-time job and are

insufficient to undermine his claim that he is unable to work. Therefore, the ALJ’s

decision to discredit Meier’s testimony and Dr. Margaris’s conclusions was not

supported by substantial evidence.

      We have discretion whether to remand the case for additional evidence or to

award benefits. Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). Accepting


                                         4
Meier’s testimony and the opinion of Dr. Margaris, it is clear that Meier is unable

to work for a full eight-hour day. Because there are no outstanding issues to be

resolved that would preclude us from making a disability determination, we reverse

and remand for an award of benefits.

REVERSED and REMANDED.




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