                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 31 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SHELLY S. JONES,                                 No. 11-35660

              Plaintiff - Appellant,             D.C. No. 3:10-cv-05483-RJB

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant - Appellee.


                  Appeal from the United States District Court
                     for the Western District of Washington
                 Robert J. Bryan, Senior District Judge, Presiding

                     Argued and Submitted December 6, 2012
                              Seattle, Washington

Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
      Shelly S. Jones appeals the district court’s judgment affirming the decision

of the administrative law judge (ALJ) denying Jones’s application for Social

Security disability benefits. We reverse on two separate grounds.

      First, the ALJ stated that he gave “little weight” to a July 2007 opinion by

Dr. George Dueber because “it is unsupported by objective findings and is

inconsistent with the claimant’s own reports of her activities.” However, it is not

clear whether, in deeming the opinion “unsupported by objective findings,” the

ALJ considered the treatment notes in the record, and if so, what specifically made

them insufficient to support the opinion. With respect to Jones’s reported

activities, we do not find them inconsistent with the July 2007 opinion’s

conclusion that unpredictable flare-ups in her symptoms would prevent her from

keeping a regular job. See Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir.

2001). Accordingly, the ALJ failed to provide “specific and legitimate reasons

supported by substantial evidence in the record” for rejecting the July 2007

opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (internal quotation

marks omitted).

      Second, the ALJ’s adverse credibility determination with respect to Jones

was not supported by substantial evidence. For the same reason that Jones’s

reported activities were not inconsistent with the July 2007 opinion, they also did


                                          2
not cast doubt on her credibility. Likewise, the ALJ’s reliance on the X-rays and

MRI of Jones’s cervical spine to evaluate the severity of her fibromyalgia

symptoms was improper. See Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir.

2004). Finally, the ALJ did not make adequate findings that changes in activity

level, diet, or smoking habits would have permitted Jones to return to work. See

Byrnes v. Shalala, 60 F.3d 639, 641 (9th Cir. 1995).

      Because the ALJ’s conclusions largely turned on his weighing of the July

2007 opinion and his credibility determination, we cannot deem the identified

errors harmless. Thus, we remand the case for further proceedings. See Smolen v.

Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). We leave to the ALJ whether the

agency’s rules and regulations permit the record to be reopened on remand for

consideration of, among other things, the medical evidence that was introduced in

Jones’s later application.

      REVERSED and REMANDED.




                                         3
