                                                                                    FILED
                               NOT FOR PUBLICATION
                                                                                     APR 17 2017
                       UNITED STATES COURT OF APPEALS                           MOLLY C. DWYER, CLERK
                                                                                  U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



DAVID CURTIS,                                          No. 16-35066
             Plaintiff-Appellant,                      D.C. No. 3:15-cv-05234-JCC
v.                                                     MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
               Defendant-Appellee.
*

                       Appeal from the United States District Court
                         for the Western District of Washington
                      John C. Coughenour, District Judge, Presiding

                                Submitted April 14, 2017 * *

Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

       David Curtis appeals the district court=s judgment affirming the

Commissioner of Social Security=s denial of his application for disability insurance

benefits under Title II of the Social Security Act. We have jurisdiction under 28

U.S.C. ' 1291. We vacate and remand.

       The ALJ erred in rejecting the opinion of state agency consultant, Dr.

Hoskins, based on ambiguity about which of the residual functional capacity


       *
              This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
       **
             The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
(ARFC@) assessments his opinion affirmed, because the ALJ had a duty to fully and

fairly develop the record, including clarifying the basis for Dr. Hoskins=s opinion.

See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Tonapetyan v. Halter,

242 F.3d 1144, 1150 (9th Cir. 2001) (AAmbiguous evidence, or the ALJ's own

finding that the record is inadequate to allow for proper evaluation of the evidence,

triggers the ALJ's duty to conduct an appropriate inquiry.@ (Citations and internal

quotation marks omitted)).

      The ALJ erred in failing to refer to specific evidence in the record in

alternatively rejecting Dr. Hoskins=s opinion that Curtis had a sedentary RFC.

Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). The ALJ=s conclusion that

there were Aminimal@ treatment records in the relevant period was premised on an

inaccurate summary of the evidence. See Ghanim v. Colvin, 763 F.3d 1154, 1161-

62 (9th Cir. 2014). Further, the ALJ failed to make specific findings or explain his

interpretation of the evidence regarding Aclaimant=s activities in prison,@ as a basis

for rejecting the sedentary RFC.

      The ALJ also failed to provide specific, clear and convincing reasons for

finding Curtis not fully credible.




                                           2                                    16-35066
      See Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 8 2007) (ALJ must provide

clear and convincing reasons for discrediting a claimant absent affirmative evidence

of malingering). The ALJ failed to make specific findings relating to Curtis=s

activities in prison and after his release, did not explain how these activities were

inconsistent with any specific pain testimony from Curtis, or a sedentary RFC, and

failed to make findings relating to the activities and their transferability to work.

See id. at 639. To the extent that the ALJ relied on a lack of treatment records

related to Curtis=s back pain as a basis for discrediting his testimony, as explained

above, the ALJ=s conclusion that there were minimal treatment records is

inaccurate. These errors were not harmless because the only remaining basis to

discount Curtis=s credibility was the ALJ=s conclusion that there was some

inconsistency between Curtis=s testimony and treatment records about when Curtis

stopped using a wheelchair and started using a cane. This finding alone does not

constitute substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

2012). Thus, on the record before us, we do not sustain the negative credibility

assessment.

      We therefore vacate and remand to the district court with instructions to

remand, on an open record, to the Social Security Administration for further

proceedings. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101

(9th Cir. 2014) (AWhere there is conflicting evidence, and not all essential factual


                                           3                                     16-35066
issues have been resolved, a remand for an award of benefits is inappropriate.@).

      Each party shall bear its own costs.

      VACATED and REMANDED with INSTRUCTIONS.




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