                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 28 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RUSSELL FRITZ,                                   No. 15-35629

              Plaintiff-Appellant,               D.C. No. 3:14-cv-05658-RSL

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

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert S. Lasnik, District Judge, Presiding

                            Submitted March 24, 2017**

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

      Russell Fritz appeals the district court’s judgment affirming an

Administrative Law Judge’s (“ALJ”) decision denying his application for

Disability Insurance Benefits under Title II of the Social Security Act (“Act”) 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).
Supplemental Security Insurance under Title XVI. We have jurisdiction under 28

U.S.C. § 1291. We review the district court’s order de novo, and may set aside a

denial of benefits only if it is not supported by substantial evidence or is based on

legal error. Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014). We reverse

and remand.

      To the extent that the ALJ concluded Fritz’s testimony was not credible

based on the medical record, daily activities, criminal conviction, the opinion of

consultative expert Dr. Pfeiffer, and Fritz’s improvement with treatment, the ALJ

failed to offer “specific, clear and convincing reasons” for finding Fritz not

credible. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citations and

internal quotation marks omitted). First, the ALJ did not identify what testimony

was not credible and what evidence undermined Fritz’s complaints. See

Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (“[P]roviding a

summary of medical evidence in support of a residual functional capacity finding is

not the same as providing clear and convincing reasons for finding the claimant’s

symptom testimony not credible.” (emphasis omitted)). Second, Fritz’s daily

activities do not contradict his reports of disability, see Orn v. Astrue, 495 F.3d

625, 639 (9th Cir. 2007), or demonstrate that he was “able to spend a substantial

part of [his] day engaged in pursuits involving the performance of physical


                                           2                                     15-35629
functions that are transferable to a work setting,” Vertigan v. Halter, 260 F.3d

1044, 1049 (9th Cir. 2001) (emphasis, citation, and internal quotation marks

omitted). Third, the ALJ did not explain how Fritz’s unrelated 21-year-old robbery

conviction impacted his credibility. Fourth, the ALJ improperly discredited Fritz

based on Dr. Pfeiffer’s assessment because Dr. Pfeiffer’s opinion was contradicted

by his own observations and the medical record as a whole. Fifth, while

improvement with treatment can support an adverse credibility finding if it

conflicts with a claimant’s testimony of a lack of improvement, see Morgan v.

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999), the ALJ did

not point to any testimony by Fritz that his degenerative disc disease had not

improved.

      Although the ALJ’s reliance on Fritz’s inconsistent statements regarding his

headache provided one specific, clear and convincing reason for finding Fritz not

fully credible, the ALJ’s error was not harmless because this reason standing alone

does not amount to substantial evidence. See Carmickle v. Comm’r, Soc. Sec.

Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (“[T]he relevant inquiry . . . is

whether the ALJ’s decision remains legally valid, despite such error.”).

      The ALJ also erred in rejecting the contradicted opinion of Fritz’s treating

neurologist, Dr. Olson, without providing “specific and legitimate reasons


                                          3                                      15-35629
supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.

2007) (citation and internal quotation marks omitted)). Dr. Olson’s opinion was

supported by his clinical observations, not solely by Fritz’s subjective complaints,

and we have already concluded that the ALJ erred in finding Fritz not credible. Cf.

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“An ALJ may reject a

treating physician’s opinion if it is based to a large extent on a claimant’s self-

reports that have been properly discounted as incredible.” (citation and internal

quotation marks omitted)).

      Accordingly, we reverse and remand to the district court with instructions to

remand for further administrative proceedings.

      REVERSED and REMANDED.




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