                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JIMMIE LEON MARTIN,                              No. 10-17674

              Plaintiff - Appellant,             D.C. No. 2:09-cv-01017-CMK

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Craig Kellison, Magistrate Judge, Presiding

                           Submitted February 14, 2012 **
                             San Francisco, California

Before: THOMAS, FISHER, and IKUTA, Circuit Judges.

       The administrative law judge (ALJ) erred when formulating Martin’s

residual functional capacity (RFC) because the RFC neither incorporated Dr.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Steiner’s opinion of Martin’s work limitations nor gave specific and legitimate

reasons for rejecting it. See Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1996).

The limitations assessed by Dr. Steiner were potentially inconsistent with the

ALJ’s determination that Martin could engage in “light work.” See 20 C.F.R.

§ 404.1567(b); see also SSR 83-10. As a result, the VE’s testimony based on the

flawed RFC had no evidentiary value. See Embrey v. Bowen, 849 F.2d 418,

422–23 (9th Cir. 1988). In evaluating Martin’s RFC on remand, the ALJ should

address Dr. Steiner’s opinion.

      The ALJ did not err in discrediting Martin’s testimony as to the severity of

Martin’s pain. The ALJ provided “specific, clear and convincing” reasons and

cited multiple portions of the record that were inconsistent with assertions of total

disability. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). These

reasons were also germane to discredit the testimony of Martin’s wife, see

Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009), but

because the ALJ did not specifically comment on this testimony, the ALJ should

do so on remand.

      The district court shall remand this case to the Commissioner for

proceedings consistent with this memorandum disposition. The parties shall bear

their own costs on appeal.


                                           2
AFFIRMED in part; REVERSED in part; and REMANDED.




                                3
