FILED
NOT FOR PUBLICATION
JUN 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN HARTMANN, No. 13-36188
Plaintiff - Appellant, D.C. No. 2:12-cv-03072-JPH
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, Senior District Judge, Presiding
Argued and Submitted June 8, 2016
Seattle, Washington
Before: PAEZ, BYBEE, and CHRISTEN, Circuit Judges.
Steven Nicholas Hartmann appeals the district court’s judgment affirming an
Administrative Law Judge’s (“ALJ”) denial of supplemental security income. We
reverse and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Because the ALJ considered Hartmann’s noncompliance with his
diabetes treatment program as a factor in her credibility determination rather than
as an independent basis for denying benefits, she was not required to comply with
the notice and other requirements of Social Security Ruling 82-59. See Molina v.
Astrue, 674 F.3d 1104, 1114 n.6 (9th Cir. 2012).
2. Nonetheless, the ALJ did not provide “clear and convincing” reasons
for discrediting Hartmann. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d
1155, 1160 (9th Cir. 2008).
First, substantial evidence does not support the ALJ’s reliance on
Hartmann’s daily activities. Hartmann testified that at least once each week he
suffered disabling symptoms of type I diabetes that prevented him from working.
This testimony was not inconsistent with evidence that Hartmann performed
simple housework, went for short walks and bike rides, watched television, and
cared for his girlfriend’s children three days each week. Because Hartmann’s daily
activities did not “contradict his other testimony,” they were not grounds for
discrediting him. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
Second, substantial evidence also does not support the ALJ’s finding that
Hartmann’s employment history reflects “little propensity to work in his lifetime.”
To the contrary, Hartmann made four attempts to work in 2006 and 2007 during the
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short time between high school and his recurrent hospitalization for diabetes-related
illness. That is not the “extremely poor work history” that may justify an adverse
credibility finding. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
Third, the ALJ found that Hartmann failed to follow his diabetes treatment
program but failed to consider whether his mental impairments explained his
noncompliance. The record evidence demonstrates that Hartmann possesses
limited cognitive abilities; indeed, the ALJ included “borderline intellectual
functioning” among Hartmann’s “severe impairments.” Because the ALJ did not
address the potential effect of Hartmann’s mental impairments, substantial
evidence does not support the ALJ’s adverse credibility determination on the basis
of his noncompliance.
3. Therefore, we reverse the district court’s judgment and remand so that
the ALJ may consider in the first instance and on an open record the extent to
which Hartmann’s mental impairments affect his ability to comply with his
diabetes treatment program. To the extent the ALJ relies on Hartmann’s
noncompliance with treatment to discount objective medical evidence, as opposed
to subjective testimony, she must afford Hartmann the procedural protections of
Social Security Ruling 82-59.
REVERSED AND REMANDED.
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