                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                         DEC 15 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL W. HALL,                                No.    14-35797

                Plaintiff-Appellant,            D.C. No. 2:13-cv-01679-JLR

 v.
                                                MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Western District of Washington
                    James L. Robart, District Judge, Presiding

                          Submitted November 30, 2017**


Before:      THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
Judges.

      Michael Hall appeals the district court’s decision affirming the

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

disability insurance benefits and supplemental security income under Titles II and


      *
             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).
XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo, Ghanim v. Colvin, 736 F.3d 1154, 1159 (9th Cir. 2014), and we

reverse and remand for further proceedings.

      The ALJ gave treating therapist Mr. Arnold’s July 2011 opinion significant

weight, finding it accurately reflected the longitudinal medical evidence. Mr.

Arnold’s November 2011 addendum to his July 2011 opinion, which the Appeals

Council considered, was part of the record. Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1159-60 (9th Cir. 2012). Mr. Arnold’s November 2011 addendum

to his July 2011 opinion deprives the ALJ’s decision denying benefits of

substantial evidence because Mr. Arnold opined in November 2011 that Hall’s

“bipolar disorder includes cycles of severe depression every two to three months

that increase isolation severely and would cause [Hall] to miss multiple days of

work.” The ALJ’s disability determination expressly relied on the testimony of the

vocational expert, who testified that employers would tolerate one absence per

month, but “typically -- if someone’s going to be absent or late or leave early on a

regular basis more than say once a month. That could potentially lead to

termination.” See id. at 1165 (considering additional evidence submitted to the

Appeals Council that claimant was likely to miss multiple days of work per month

due to mental impairments and reversing and remanding where vocational expert

testified that a person who would miss that much work was unemployable).


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      The ALJ gave germane reasons for discounting Mr. Arnold’s September

2010 opinion. The opinion was inconsistent with treatment notes, inconsistent

with Hall’s activities, and relied too heavily on Hall’s subjective complaints.

Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (holding that the ALJ must

give a germane reason to reject testimony that is not from a medically acceptable

source). It was harmless error for the ALJ to reject Mr. Arnold’s opinion, because

he is not an acceptable medical source.

      The ALJ gave specific and legitimate reasons for assigning only “little

weight” to Dr. Edwards’s opinion. The opinion was inconsistent with Hall’s

mental status examination score and with the record as a whole, and Dr. Edwards

relied too heavily on Hall’s self-reports. Lester v. Chater, 81 F.3d 821, 830-31

(9th Cir. 2014) (holding that the ALJ must make findings setting forth specific and

legitimate reasons in order to reject the contradicted opinion of an examining

physician).

      The ALJ reasonably agreed with the opinions of Dr. Fisher and Dr. Fligstein

and appropriately noted that they did not have the opportunity to review

subsequent treatment records that showed that Hall interacted well with providers

and group members, which undermined their conclusions regarding his need for a

structured work setting.




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      The ALJ followed the correct legal standard by identifying sufficiently

specific, clear and convincing reasons that are supported by substantial evidence in

the case record for discounting Hall’s credibility regarding the debilitating effects

of his symptoms: (1) Hall did not comply with doctors’ recommendations

regarding medication; (2) his symptoms are generally stable when compliant with

recommendations, as evidenced by his work during the alleged disability period;

(3) he did not pursue ongoing treatment for panic attacks; (4) there were

inconsistencies between his subjective complaints and activities of daily living; (5)

he has high concentration and memory scores on examinations; and (6) he appears

unmotivated to work. See Molina, 674 F.3d at 1112 (listing among proper

considerations for credibility assessment an inadequately explained failure to seek

or follow treatment and engagement in activities of daily living that are

inconsistent with the alleged symptoms); Tommasetti v. Astrue, 533 F.3d 1035,

1040 (9th Cir. 2008) (holding that credibility is undermined when disability is

controlled by medication); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,

1196–97 (9th Cir. 2004) (noting that medical records inconsistent with a claimant’s

allegations as a permissible reason to find claimant not credible); Thomas v.

Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (affirming an ALJ’s determination the

claimant’s little propensity to work “negatively affected her credibility regarding

her inability to work”). The ALJ incorrectly discounted Hall’s credibility for


                                          4                                      14-35797
making inconsistent statements about his sobriety, but this was harmless error

because other reasons for discounting Hall’s testimony adequately support the

ALJ’s credibility determination, and each finds ample support in the record.

Batson, 359 F.3d at 1197 (concluding that, even if the record did not support one

of the ALJ’s stated reasons for disbelieving a claimant’s testimony, the error was

harmless).

      The ALJ gave germane reasons for assigning limited weight to the testimony

of Hall’s mother. Her testimony was inconsistent with the overall medical record,

including the treatment notes; Hall recovered from his back injury; his mental

symptoms improved when he complied with his doctors’ recommendations; and

his mental status testing was normal. Bayliss v. Barnhart, 427 F.3d 1211, 1218

(9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).

      The ALJ’s assessment of the residual functional capacity (“RFC”) did not

include Mr. Arnold’s limitation in the November 2011 addendum that Hall would

miss more than one day of work per month. Bayliss, 427 F.3d at 1217. Because

the functional limitations identified by the ALJ in the RFC for medium work were

not supported by the medical evidence in the record, the sequential evaluation

process should be reevaluated. See Valentine v. Comm’r of Soc. Sec. Admin., 574

F.3d 685, 690 (9th Cir. 2009) (explaining that the limitations included in the

hypothetical propounded to a vocational expert needs to be supported by


                                          5                                      14-35797
substantial record evidence). It is not clear from the administrative record that the

ALJ would be required to award benefits if the medical evidence were reevaluated

with Mr. Arnold’s November 2011 addendum to his July 2011 opinion. Treichler

v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (“Where there

is conflicting evidence, and not all essential factual issues have been resolved, a

remand for an award of benefits is inappropriate.”). Accordingly, we remand for

further proceedings.

      REVERSED and REMANDED.




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