                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 25 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LYDIA MONTOYA,                                   No. 14-15461

              Plaintiff - Appellant,             D.C. No. 2:12-cv-02483-CKD

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

              Defendant - Appellee.


                  Appeal from the United States District Court
                       for the Eastern District of California
                 Carolyn K. Delaney, Magistrate Judge, Presiding

                       Argued and Submitted April 14, 2016
                            San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and CHRISTEN, Circuit
Judges.

      Claimant Lydia Montoya appeals the denial of her social security disability

benefits. The administrative law judge (ALJ) found that Montoya had a medium

residual functional capacity and determined that she was not disabled because she



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
could perform her past relevant work. As an alternative, the ALJ also found that she

was not disabled under the Medical-Vocational Grids (the Grids). Although the

district court found that Montoya did not have past relevant work, it affirmed the

ALJ’s alternative holding that she was not disabled under the Grids. On appeal,

Montoya challenges the ALJ’s determination of her residual functional capacity as

well as his alternative holdings that she could perform her past relevant work and was

not disabled under the Grids.

      The ALJ’s decision “should be upheld unless it contains legal error or is not

supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.

2014). However, “[w]e review only the reasons provided by the ALJ in the disability

determination and may not affirm the ALJ on a ground upon which he did not rely.”

Id. at 1010. The district court’s decision is reviewed de novo. Id.

      1. Montoya first argues that the ALJ erred in determining her residual

functional capacity because he failed to give “specific and legitimate reasons” for

rejecting her treating physician’s diagnosis. See id. at 1012 (quoting Ryan v. Comm’r

of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). We agree.

      Here, the ALJ explicitly identified the “specific and legitimate reasons” that he

used for giving little weight to the opinion of Montoya’s treating physician: (i) the

opinion was rendered before the alleged onset date; (ii) the opinion was not


                                    Page 2 of 6
substantiated by clinical findings or diagnostic studies; and (iii) the opinion was

inconsistent with that of a consultative examiner. The Commissioner concedes that

the first reason regarding the onset date was inaccurate. The second reason regarding

the clinical findings was an assertion for which the ALJ did not provide any examples

or cite any part of the record. See id. (requiring a “thorough summary of the facts and

conflicting clinical evidence” to discredit a treating physician (quoting Reddick v.

Chater, 157 F.3d 715, 725 (9th Cir. 1998))). The last reason—that a consultative

examiner came to a different conclusion—is not enough on its own to be a specific

and legitimate reason. Id. at 1013.1

         2. Montoya next contends that the ALJ erred by finding that she could perform

her past relevant work because based on her low monthly average income, none of her

work qualified as such. We agree with the district court that the ALJ erred on this

issue.

         In order for past jobs to qualify as past relevant work, they must have been

substantial gainful activity. Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001).

“Earnings can be a presumptive, but not conclusive, sign of whether a job is



         1
        Montoya also contends that the ALJ erred in determining her residual
functional capacity by failing to address her obesity. Because we are remanding
the determination of her residual functional capacity on a different ground, we do
not need to reach this issue.

                                       Page 3 of 6
substantial gainful activity.” Id. Therefore, if the average monthly earnings are below

specified amounts designated by the Social Security Administration, “the claimant has

carried his or her burden unless the ALJ points to substantial evidence, aside from

earnings, that the claimant has engaged in substantial gainful activity.” Id.

      Here, although the record is unclear whether Montoya met that average monthly

income, the ALJ stated that she had past relevant work as a clerk, cashier, or meter

reader without addressing the substantial gainful activity issue or developing the

record on it. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“A clear

statement of the agency’s reasoning is necessary because we can affirm the agency’s

decision to deny benefits only on the grounds invoked by the agency.”); Smolen v.

Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (stating that an ALJ has a duty to fully

develop the record).

      3. Montoya last argues that the ALJ erred in his alternative finding because he

relied on the Grids rather than using a vocational expert even though Montoya had

two significant non-exertional limitations: a limitation to occasional overhead

reaching and moderate difficulties in maintaining concentration, persistence, and pace.

See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001), as amended (Nov. 9,

2001). The district courts are divided on the issue whether a limitation to occasional

overhead reaching is a significant non-exertional limitation that requires the use of a


                                     Page 4 of 6
vocational expert. Compare Buford v. Colvin, No. C13-900-RSL, 2014 WL 33214,

at *7 (W.D. Wash. Jan. 3, 2014), and Vargas v. Colvin, No. 03:12-cv-00768-HZ, 2013

WL 3119566, at *5 (D. Or. June 18, 2013), with Absher v. Astrue, No. 06-cv-1131

TAG, 2008 WL 822160, at *11 (E.D. Cal. Mar. 27, 2008). We agree with Buford and

Vargas and hold that an ALJ must use a vocational expert at Step 5 when a claimant

has this limitation.     As both Buford and Vargas note, the Social Security

Administration has established that reaching is an activity “required in almost all jobs”

and that the inability to reach “may eliminate a large number of occupations a person

could   otherwise      do.”    Titles     II   & XVI:    Capability    to   Do    Other

Work—Themedical-Vocational Rules as a Framework for Evaluating Solely

Nonexertional Impairments, SSR 85-15, 1985 WL 56857, at *7 (S.S.A. 1985).

Overhead reaching, in particular, may be necessary for jobs at all levels, including

reaching overhead for a binder, stocking shelves, or holding up ladders. Given that

the burden is on the Commissioner at this step and that the Administration’s own




                                        Page 5 of 6
language emphasizes the importance of reaching, we hold that the ALJ erred in failing

to obtain a vocational expert to testify on this issue.2

      We remand for proceedings consistent with this opinion.

      REVERSED AND REMANDED.




      2
          We do not need to reach the alternative question whether moderate
difficulties in maintaining concentration, persistence, and pace would preclude the
use of the Grids in this case. We do note, however, that previous cases have
considered psychiatric determinations at step 3 as relevant to step 5 and that, once
a vocational expert is used, the ALJ “must include all of the claimant’s functional
limitations” in hypotheticals to the expert. Thomas v. Barnhart, 278 F.3d 947, 956
(9th Cir. 2002) (emphasis added) (internal quotation marks omitted).

                                      Page 6 of 6
