FILED
NOT FOR PUBLICATION
NOV 30 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STACEE KENSLER BAXLA, No. 14-17222
Plaintiff-Appellant, D.C. No. 2:13-cv-00733-BSB
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Bridget S. Bade, Magistrate Judge, Presiding
Argued and Submitted November 14, 2016
San Francisco, California
Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.
Stacee Baxla appeals from the district court’s order affirming the ALJ’s
denial of disability benefits. We affirm in part, reverse in part, and remand for
further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. Subjective medical symptom testimony. The ALJ provided three
legally sufficient reasons, each supported by substantial evidence in the record, for
rejecting Baxla’s subjective medical symptom testimony regarding the intensity,
persistence, and limiting effects of her syncope condition: (1) the claimant failed to
comply with her prescribed course of treatment; (2) the claimant’s treating
neurologist expressed skepticism that she experienced daily syncope episodes; and
(3) the claimant’s daily activities were inconsistent with her allegation that she
experienced daily syncope episodes. See Rounds v. Commissioner, 807 F.3d 996,
1006 (9th Cir. 2015). As the district court correctly observed, although the ALJ’s
adverse credibility determination erred on various other grounds, these errors were
harmless and do not warrant reversal here. See Carmickle v. Commissioner, 533
F.3d 1155, 1162 (9th Cir. 2008). The ALJ did not err when evaluating Baxla’s
subjective medical symptom testimony.
2. Medical opinion evidence from Dr. Al-Zubaidi. When making
disability determinations, the ALJ is not required to accept as true limitations
raised in hypothetical questions when the limitations are not supported by evidence
in the record. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). Here,
Baxla’s hypothetical question to the vocational expert assumed that the claimant
would experience syncope episodes that lasted for approximately thirty-to-sixty
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minutes. However, Dr. Al-Zubaidi rendered no medical opinion regarding the
duration of the claimant’s syncope episodes and its effect on her ability to perform
work in the national economy. The only record evidence regarding the duration of
the claimant’s syncope episodes came from her testimony at the administrative
hearing, which the ALJ determined was not credible. Dr. Al-Zubaidi opined only
that, because the claimant fainted twice per week, she was precluded from working
around heights or machinery. The ALJ expressly incorporated this limitation into
his residual functional capacity assessment, and therefore did not err when
evaluating Dr. Al-Zubaidi’s medical opinion.
3. Medical opinion evidence from Dr. Robicheau. The ALJ
acknowledged the opinion of Dr. Robicheau, a nonexamining psychologist, that
Baxla should be limited to simple, repetitive tasks. Her assessment identified
several specific items as to which she concluded that Baxla was moderately
limited. The ALJ reached a different conclusion, however, specifically that the
“evidence better supports limitations in interaction with others than limitations to
simple, repetitive tasks.” Because the ALJ’s residual functional capacity
assessment conflicted with the assessment of Dr. Robicheau regarding Baxla’s
moderate work-related mental limitations, the ALJ was required to provide an
explanation for rejecting Dr. Robicheau’s medical opinion. See Social Security
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Ruling 96-8p, 1996 WL 374184, at *7 (July 2, 1996). The ALJ was also required
to support his explanation with reference to substantial evidence from the medical
record. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014); Sousa v. Callahan,
143 F.3d 1240, 1244 (9th Cir. 1998). The ALJ failed to provide a legally sufficient
reason, supported by substantial evidence in the medical record, for rejecting Dr.
Robicheau’s opinion. That error was not necessarily harmless because Dr.
Robicheau’s medical opinion, if credited, could have affected the ALJ’s disability
determination. The vocational expert testified that an individual with the moderate
work-related mental limitations identified by Dr. Robicheau could not perform the
claimant’s past relevant work as a hand packager. See Marsh v. Colvin, 792 F.3d
1170, 1173 (9th Cir. 2015).
4. Remand for further proceedings. Baxla is not entitled to the
immediate award of benefits under the credit-as-true rule. The disputed evidence,
even if credited as true, did not necessarily establish that the claimant would be
entitled to benefits. See Garrison, 759 F.3d at 1020. We therefore instead remand
for further proceedings not inconsistent with this memorandum disposition.
Each party to bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
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