                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 10 2014

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



                            FOR THE NINTH CIRCUIT


ERNEST KISH, Jr.,                                 No. 12-35867

              Plaintiff - Appellant,              D.C. No. 3:11-cv-06045-KLS

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

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
                  Karen L. Strombom, Magistrate Judge, Presiding

                      Argued and Submitted November 4, 2013
                               Seattle, Washington

Before: SCHROEDER, PAEZ, and BERZON, Circuit Judges.

       Claimant Ernest Kish, Jr. appeals the denial of his application for disability

insurance benefits. The denial of benefits was affirmed below by a magistrate

judge reviewing on consent of the parties.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The Administrative Law Judge (“ALJ”) denied Claimant’s application by

relying primarily on a determination that Claimant was not credible and

discounting a psychological evaluation concluding that he suffers from depression.

      The ALJ discounted the psychological evaluation conducted by Dr. Jeffrey

Hart concluding that Claimant suffered from depression. The evaluation was

completed more than a year after Claimant’s last insured date. Tidwell v. Apfel,

161 F.3d 599, 601 (9th Cir. 1998) (the disability must exist “on or before” the

applicant’s last insured date). The ALJ mentioned the timing factor, but gave other

reasons for declining to consider Dr. Hart’s evaluation. The district court,

however, primarily relied on the timing consideration in affirming the ALJ’s

rejection of Dr. Hart’s evaluation. Evaluations conducted after the last insured date

can still be relevant to assessing a claimant’s condition during the appropriate

period. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). There is no basis

for concluding that Claimant’s condition as evaluated by Dr. Hart did not exist

prior to his last insured date, and the ALJ offered none. There was therefore no

basis for discounting the weight of Dr. Hart’s evaluation because of timing.

      As the district court observed, the ALJ erred in discounting Dr. Hart’s

opinion on the ground that petitioner had paid for it. Lester v. Chater, 81 F.3d 821,




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832 (9th Cir. 1995) (absent evidence of actual improprieties, an evaluation cannot

be dismissed because of the motive for obtaining it).

      We agree with the district court’s conclusion that many of the reasons given

to discredit Claimant’s testimony were invalid. The ALJ and the district court

determined, nonetheless, that Claimant’s testimony as to his physical condition and

daily activities was inconsistent with his attendance at school. However, any

inconsistency between Kish’s attendance at a full-time vocational education

program and his testimony regarding his limited daily activities is not sufficiently

substantial to support the ALJ’s credibility finding. Moreover, the record shows

that Claimant received accommodations to aid his school attendance. School

attendance is often not as physically taxing as full-time employment, and it is not

clear from the record that Claimant was able to sustain school attendance even with

the accommodation. The ALJ’s finding that Claimant’s testimony was not credible

is not supported by substantial evidence. On remand, the ALJ must therefore

credit claimant’s testimony as to the severity of his symptoms, including his

testimony as to pain, or make an adverse credibility finding that is supported by

substantial evidence.

      Dr. Hart’s evaluation was objective medical evidence indicating that

Claimant suffered from depression, and the record was ambiguous only as to the


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severity of the condition. The Claimant requested a consultative examination to

resolve inadequacies and ambiguities in the medical record as to his depression.

Where the evidence is inadequate or ambiguous, the ALJ has a duty to conduct an

appropriate inquiry. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)

(quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)). When the

severity of a claimant’s disorder cannot be determined, the appropriate course is to

request a consultative evaluation, and failure to do so is good cause for remand.

Carrillo Marin v. Sec’y of Health and Human Servs., 758 F.2d 14, 17 (1st Cir.

1985). The ALJ should have ordered a consultative evaluation.

      The ALJ also erred by disregarding Claimant’s limited ability to do work

with his dominant left hand. The left-hand limitation was documented in a

physical capacities evaluation, which Claimant’s treating doctor, Dr. Nehls

adopted, and was supported by examining physician Dr. James F. Harris’

evaluation. Dr. Nehls’ opinion is uncontroverted and should be given controlling

weight. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). On remand, the ALJ

should include that limitation in the residual functional capacity assessment. We

therefore reverse and remand for further development of the record in accordance

with this disposition.

      REVERSED and REMANDED.


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