                                                                             FILED
                               NOT FOR PUBLICATION                            JUL 06 2015

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



                               FOR THE NINTH CIRCUIT


APRIL DENISE WEST,                                   No. 13-15741

                 Plaintiff - Appellant,              D.C. No. 2:12-cv-01542-NVW

 v.
                                                     MEMORANDUM*
CAROLYN W. COLVIN, 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 June 10, 2015
                                San Francisco, California

Before: HAWKINS and WATFORD, Circuit Judges and RAKOFF,** Senior
District Judge.

      April West (“West”) appeals the district court’s order upholding the final

decision    of    the    Commissioner     of   the   Social   Security   Administration


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
(“Commissioner”), which denied her disability insurance benefits. West contends the

administrative law judge (“ALJ”) improperly discounted the weight of an examining

physician’s opinion and did not give sufficient reasons to reject West’s testimony

regarding her symptoms and limitations. We affirm in part and reverse in part.

      We agree with West that the ALJ failed to give “specific and legitimate”

reasons supported by substantial evidence for disregarding state agency examining

physician Dr. Drinkwater’s opinion in favor of the opinion of non-examining agency

physician Dr. Farrell. See Moore v. Comm’r of Soc. Sec., 278 F.3d 920, 924 (9th Cir.

2002). The ALJ’s decision to give Dr. Drinkwater’s opinion little weight appears

based primarily on x-rays taken of West’s spine in June 2008, which Dr. Farrell

reviewed in October 2008. However, Dr. Drinkwater’s opinion appears to have been

based on a MRI of West conducted in February 2009, which he described as “very

abnormal.” These test results were not even available to Dr. Farrell in October, and

the ALJ’s opinion appears to either conflate the two test results or ignore the MRI

entirely. We conclude that the ALJ’s assessment of Dr. Drinkwater’s opinion is not

supported by substantial evidence. See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,

1202 (9th Cir. 2008) (a non-examining doctor’s assessment by itself is not substantial

evidence).




                                          2
      Contrary to West’s assertion, however, the ALJ did provide “specific, clear and

convincing reasons” for disregarding her subjective report of her limitations.

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The ALJ offered

numerous specific reasons for finding West not fully credible regarding the extent and

severity of her limitations, including a plethora of inconsistent statements West made

to various doctors, her admission in testimony that she did not give Dr. Barry a full

picture of her history in order to be a good candidate for bariatric surgery, her failure

to follow treatment recommendations, and her failure to put forth a good effort at

some examinations. See id. at 1039–40 (discussing the various factors an ALJ may

consider in weighing a claimant’s credibility).

      Because we affirm in part and reverse in part, a remand for further proceedings

is warranted. Cf. Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1106 (9th Cir.

2014). We remand with instructions to the district court to remand this case to the

Commissioner for further proceedings.

      AFFIRMED in part, REVERSED in part and REMANDED. Each party

shall bear their own costs.




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