FILED
NOT FOR PUBLICATION
APR 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LYDIA MONTOYA, No. 14-15461
Plaintiff - Appellant, D.C. No. 2:12-cv-02483-CKD
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Carolyn K. Delaney, Magistrate Judge, Presiding
Argued and Submitted April 14, 2016
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and CHRISTEN, Circuit
Judges.
Claimant Lydia Montoya appeals the denial of her social security disability
benefits. The administrative law judge (ALJ) found that Montoya had a medium
residual functional capacity and determined that she was not disabled because she
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
could perform her past relevant work. As an alternative, the ALJ also found that she
was not disabled under the Medical-Vocational Grids (the Grids). Although the
district court found that Montoya did not have past relevant work, it affirmed the
ALJ’s alternative holding that she was not disabled under the Grids. On appeal,
Montoya challenges the ALJ’s determination of her residual functional capacity as
well as his alternative holdings that she could perform her past relevant work and was
not disabled under the Grids.
The ALJ’s decision “should be upheld unless it contains legal error or is not
supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
2014). However, “[w]e review only the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon which he did not rely.”
Id. at 1010. The district court’s decision is reviewed de novo. Id.
1. Montoya first argues that the ALJ erred in determining her residual
functional capacity because he failed to give “specific and legitimate reasons” for
rejecting her treating physician’s diagnosis. See id. at 1012 (quoting Ryan v. Comm’r
of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). We agree.
Here, the ALJ explicitly identified the “specific and legitimate reasons” that he
used for giving little weight to the opinion of Montoya’s treating physician: (i) the
opinion was rendered before the alleged onset date; (ii) the opinion was not
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substantiated by clinical findings or diagnostic studies; and (iii) the opinion was
inconsistent with that of a consultative examiner. The Commissioner concedes that
the first reason regarding the onset date was inaccurate. The second reason regarding
the clinical findings was an assertion for which the ALJ did not provide any examples
or cite any part of the record. See id. (requiring a “thorough summary of the facts and
conflicting clinical evidence” to discredit a treating physician (quoting Reddick v.
Chater, 157 F.3d 715, 725 (9th Cir. 1998))). The last reason—that a consultative
examiner came to a different conclusion—is not enough on its own to be a specific
and legitimate reason. Id. at 1013.1
2. Montoya next contends that the ALJ erred by finding that she could perform
her past relevant work because based on her low monthly average income, none of her
work qualified as such. We agree with the district court that the ALJ erred on this
issue.
In order for past jobs to qualify as past relevant work, they must have been
substantial gainful activity. Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001).
“Earnings can be a presumptive, but not conclusive, sign of whether a job is
1
Montoya also contends that the ALJ erred in determining her residual
functional capacity by failing to address her obesity. Because we are remanding
the determination of her residual functional capacity on a different ground, we do
not need to reach this issue.
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substantial gainful activity.” Id. Therefore, if the average monthly earnings are below
specified amounts designated by the Social Security Administration, “the claimant has
carried his or her burden unless the ALJ points to substantial evidence, aside from
earnings, that the claimant has engaged in substantial gainful activity.” Id.
Here, although the record is unclear whether Montoya met that average monthly
income, the ALJ stated that she had past relevant work as a clerk, cashier, or meter
reader without addressing the substantial gainful activity issue or developing the
record on it. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“A clear
statement of the agency’s reasoning is necessary because we can affirm the agency’s
decision to deny benefits only on the grounds invoked by the agency.”); Smolen v.
Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (stating that an ALJ has a duty to fully
develop the record).
3. Montoya last argues that the ALJ erred in his alternative finding because he
relied on the Grids rather than using a vocational expert even though Montoya had
two significant non-exertional limitations: a limitation to occasional overhead
reaching and moderate difficulties in maintaining concentration, persistence, and pace.
See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001), as amended (Nov. 9,
2001). The district courts are divided on the issue whether a limitation to occasional
overhead reaching is a significant non-exertional limitation that requires the use of a
Page 4 of 6
vocational expert. Compare Buford v. Colvin, No. C13-900-RSL, 2014 WL 33214,
at *7 (W.D. Wash. Jan. 3, 2014), and Vargas v. Colvin, No. 03:12-cv-00768-HZ, 2013
WL 3119566, at *5 (D. Or. June 18, 2013), with Absher v. Astrue, No. 06-cv-1131
TAG, 2008 WL 822160, at *11 (E.D. Cal. Mar. 27, 2008). We agree with Buford and
Vargas and hold that an ALJ must use a vocational expert at Step 5 when a claimant
has this limitation. As both Buford and Vargas note, the Social Security
Administration has established that reaching is an activity “required in almost all jobs”
and that the inability to reach “may eliminate a large number of occupations a person
could otherwise do.” Titles II & XVI: Capability to Do Other
Work—Themedical-Vocational Rules as a Framework for Evaluating Solely
Nonexertional Impairments, SSR 85-15, 1985 WL 56857, at *7 (S.S.A. 1985).
Overhead reaching, in particular, may be necessary for jobs at all levels, including
reaching overhead for a binder, stocking shelves, or holding up ladders. Given that
the burden is on the Commissioner at this step and that the Administration’s own
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language emphasizes the importance of reaching, we hold that the ALJ erred in failing
to obtain a vocational expert to testify on this issue.2
We remand for proceedings consistent with this opinion.
REVERSED AND REMANDED.
2
We do not need to reach the alternative question whether moderate
difficulties in maintaining concentration, persistence, and pace would preclude the
use of the Grids in this case. We do note, however, that previous cases have
considered psychiatric determinations at step 3 as relevant to step 5 and that, once
a vocational expert is used, the ALJ “must include all of the claimant’s functional
limitations” in hypotheticals to the expert. Thomas v. Barnhart, 278 F.3d 947, 956
(9th Cir. 2002) (emphasis added) (internal quotation marks omitted).
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