                                                                             FILED
                           NOT FOR PUBLICATION                                MAY 27 2014

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



                            FOR THE NINTH CIRCUIT

DEBRA K. STEWART,                                No. 12-15839

              Plaintiff - Appellant,             D.C. No. 2:11-cv-00451-NVW

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

              Defendant - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                       Argued and Submitted April 11, 2014
                            San Francisco, California

Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, District
Judge.***


       Debra Stewart (“Stewart”) appeals the district court’s order affirming the

decision of the Administrative Law Judge (“ALJ”) to deny Stewart’s application



*     This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**    The Honorable Kevin Thomas Duffy, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
for supplemental security income. We review the district court’s order de novo.

See Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we reverse the judgment of the district court and

remand for further proceedings.

      Stewart challenges the district court’s judgment on multiple grounds. We

review “only the reasons provided by the ALJ in the disability determination and

[we] may not affirm the ALJ on a ground upon which [she] did not rely.” Orn v.

Astrue, 495 F.3d 625, 630 (9th Cir. 2007). We are persuaded that the district court

erred in its finding that: (i) the ALJ set forth specific, legitimate reasons based on

substantial evidence for rejecting the opinion of Stewart’s treating physician and

(ii) the ALJ provided specific, clear, and convincing reasons to reject Stewart’s

subjective pain testimony. We reverse the judgment of the district court on those

findings.

      An ALJ is not bound by the medical opinion of a treating physician on the

ultimate question of disability. However, if the ALJ rejects the opinion of the

treating physician in favor of the conflicting opinion of an examining physician,

the ALJ must make “findings setting forth specific, legitimate reasons for doing so

that are based on substantial evidence in the record.” Thomas v. Barnhart, 278

F.3d 947, 957 (9th Cir. 2002) (citation and internal quotation marks omitted).


                                          -2-
“The ALJ can meet this burden by setting out a detailed and thorough summary of

the facts and conflicting clinical evidence, stating [her] interpretation thereof, and

making findings.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)

(citation and internal quotation marks omitted). Stewart’s treating physician, Dr.

Mahadevan, provided two written assessments stating that Stewart’s fibromyalgia

severely limited her ability to function and rendered her unable to work. The

administrative record shows that the ALJ determined that if Dr. Mahadevan’s

assessments controlled, Stewart would be found disabled. The ALJ rejected Dr.

Mahadevan’s assessments in favor of a conflicting opinion rendered by Dr.

Sosinsky, an examining physician, who found that Stewart was much less

functionally limited and capable of working. The ALJ wrote that “[Dr.

Mahadevan’s] medical assessment was rejected as [it was] not supported by the

overall medical evidence of record, including [her] own notes.” The ALJ did not,

however, identify any particular notes made by Dr. Mahadevan or any particular

element of the assessments that should be rejected, and otherwise failed to set forth

specific, legitimate reasons based on substantial evidence for rejecting Dr.

Mahadevan’s opinion. Therefore, we reverse the judgment of the district court on

the sufficiency of the ALJ’s rejection of the treating physician’s opinion.




                                          -3-
      The ALJ also partially rejected Stewart’s own testimony about the severity

of her symptoms. An ALJ can reject a claimant’s testimony about the severity of

symptoms “only by offering specific, clear and convincing reasons for doing so.”

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Smolen v.

Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); see also Berry, 622 F.3d at 1234

(“Once the claimant produces medical evidence of an underlying impairment, the

[ALJ] may not discredit the claimant’s testimony as to subjective symptoms

merely because they are unsupported by objective evidence.”) (citation and internal

quotation marks omitted).

      Here, the ALJ did not provide clear and convincing reasons for rejecting

Stewart’s subjective pain and symptom testimony, in part because the ALJ did not

address Stewart’s fibromyalgia-related limitations in assessing her credibility. It

was error to sustain the ALJ’s partial rejection of Stewart’s testimony.

      Stewart has asked us to apply the “credit-as-true” rule and remand the case

for the determination of benefits. See Smolen, 80 F.3d at 1292. Although the ALJ

concluded that if Dr. Mahadevan’s assessments were credited, Stewart would be

disabled, the ALJ did not determine when Stewart’s disability began and “the

evidence [Stewart] wants credited does not identify a particular onset date.” Luna

v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).


                                         -4-
      This record demonstrates that the district court erred in affirming the ALJ’s

denial of benefits. We therefore reverse the judgment of the district court and

remand to the ALJ for further proceedings. See Salvador v. Sullivan, 917 F.2d 13,

15 (9th Cir. 1990) (reversing and remanding when “there may be evidence in the

record to which the ALJ can point to provide the requisite . . . reasons for

disregarding [evidence] . . . .[and] the other [evidence] in the record seems

substantially to support the ALJ’s decision that [the plaintiff] is not disabled”

(citation omitted)). As this court has stated, “[a] claimant is not entitled to benefits

under the statute unless the claimant is, in fact, disabled, no matter how egregious

the ALJ’s errors may be.” Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d

1135, 1138 (9th Cir. 2011). In reconsidering the case, the ALJ may hold further

hearings and receive additional evidence.

REVERSED and REMANDED.




                                           -5-
