                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 8 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PATRICK H. MONTERO,                             No.    16-15555

                Plaintiff-Appellant,            No. 1:15-CV-00196-HG-KSC

 v.                                             MEMORANDUM*

NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Hawai’i
                    Helen Gillmor, District Judge, Presiding

                             Submitted June 6, 2018 **

Before: GOODWIN, LEAVY, and, SILVERMAN, Circuit Judges.

      Patrick Montero appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of Montero’s application for

supplemental security income under Title XVI of the Social Security Act. We have

jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review the district


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s order de novo and the agency’s decision for substantial evidence and legal

error. Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). We reverse and

remand.

      The ALJ erred in posing the hypothetical to the vocational expert (“VE”)

because the ALJ did not include Montero’s alleged limitations that he could not

work continuously and needed to take rest days, or provide clear and convincing

reasons for discounting this testimony. See Treichler v. Comm’r of Soc. Sec.

Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (ALJ must identify “what parts of the

claimant’s testimony were not credible and why”); Hill v. Astrue, 698 F.3d 1153,

1162 (9th Cir. 2012) (“If a vocational expert’s hypothetical does not reflect all the

claimant’s limitations, then the expert’s testimony has no evidentiary value to

support a finding that the claimant can perform jobs in the national economy.”

(citation and internal quotation marks omitted)). This error was not harmless

because it was not “inconsequential to the ultimate nondisability determination.”

Molina, 674 F.3d at 1115 (citation and internal quotation marks omitted). Because

it is not clear, however, that if the evidence were credited as true, the ALJ would

be required to find Montero disabled, we remand the case to the agency for further

proceedings. See Treichler, 775 F.3d at 1105 (“Where . . . an ALJ makes a legal

error, but the record is uncertain and ambiguous, the proper approach is to remand

the case to the agency.”).



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      The record does not support the Commissioner’s contention that Montero

waived this argument by failing to raise it in the district court or to argue the issue

with the requisite specificity. Cf. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d

1155, 1161 n.2 (9th Cir. 2008).

      We reject Montero’s contention that the ALJ failed to fully and fairly

develop the record because the ALJ did not assist Montero with formulating his

own hypothetical to the VE. Cf. Vidal v. Harris, 637 F.2d 710, 714 (9th Cir. 1981)

(concluding that the claimant was “clearly prejudiced by the inadequate

examination of the [VE]” concerning the claimant’s limitations where it was “clear

from the record that the claimant was totally incapable of challenging the [VE]’s

conclusions”).

      REVERSED AND REMANDED.




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