                                                                           FILED
                            NOT FOR PUBLICATION                            OCT 14 2014

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



                            FOR THE NINTH CIRCUIT


WILLIAM R WHITE, Jr.,                            No. 13-35313

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00590-JPD

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                 James P. Donohue II, Magistrate Judge, Presiding

                      Argued and Submitted August 26, 2014
                               Seattle, Washington

Before: WARDLAW, GOULD, and CHRISTEN, Circuit Judges.

       William White appeals the district court’s order affirming the Social

Security Commissioner’s denial of disability benefits. White argues that the

administrative law judge (“ALJ”) erred by improperly determining that White was

not credible and by ignoring the lay testimony of his wife. We have jurisdiction


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pursuant to 28 U.S.C. § 1291, and we agree with White. Accordingly, we reverse

the district court’s affirmance of the denial of benefits and remand for a new

hearing before the ALJ.

      1. The ALJ’s conclusion that White’s testimony was not credible is not

supported by substantial evidence. See Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). Where, as here, a claimant has produced “objective medical evidence

of an underlying impairment which could reasonably be expected to produce

the . . . symptoms alleged . . . and there is no evidence of malingering, then the ALJ

must give specific, clear and convincing reasons in order to reject the claimant’s

testimony about the severity of the symptoms.” Id. at 1112 (internal quotation

marks omitted).1 The ALJ rejected White’s testimony as to the “intensity,

persistence and degree,” of his impairments as inconsistent with his physician

reports. However, the examples given by the ALJ were not inconsistencies at all

but were entirely consistent with White’s testimony at the hearing as to his mental

and physical impairments and alcohol dependence. For example, the ALJ found

“most striking” a supposed claim by White that alcohol had nothing to do with his



      1
        Because White explicitly argued before the district court that the ALJ’s
credibility finding was not supported by substantial evidence, the district court
erred in deeming White’s challenge to the ALJ’s adverse credibility finding
waived.

                                          2
depression and suicidal ideation. But this was taking out of context a statement in

his testimony about what he would tell hospital staff depending on whether he

wanted to be released. In addition, the ALJ improperly discredited White for

allegedly failing to follow a treatment regimen when White was unable to afford

some recommended treatments, see Gamble v. Chater, 68 F.3d 319, 321 (9th Cir.

1995), and the record demonstrates that White occasionally sought too much

treatment, not too little. The remainder of the purported inconsistencies between

White’s reported daily activities and White’s statements regarding those activities,

to the extent they are inconsistencies at all, are explained by White’s deteriorating

condition. Therefore, the ALJ failed to give “specific, clear and convincing

reasons” for concluding that White was not credible. See Molina, 674 F.3d at 1112

(internal quotation marks omitted).

      2. The ALJ also erred by failing to explain her reasons for disregarding the

lay witness testimony of White’s wife, id. at 1115, and by failing to discuss it

altogether. White’s wife confirmed White’s testimony by, for example, supporting

his claim that he “just can’t leave the house” for extended periods of time. Lay

witness testimony that explains a claimant’s symptoms and how they affect his

ability to work simply “cannot be disregarded without comment.” Nguyen v.

Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).


                                           3
      3. We therefore reverse and remand with instructions to the district court to

reverse the ALJ’s decision finding White not disabled and remand to the Social

Security Administration for a new hearing.2

      REVERSED AND REMANDED.




      2
       We do not address White’s claim that the ALJ erred by not applying the
two-step analysis articulated in Bustamante v. Massanari, 262 F.3d 949 (9th Cir.
2001). That analysis is necessary only if the ALJ deems White disabled on
remand.

                                         4
