FILED
NOT FOR PUBLICATION
APR 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID CURTIS, No. 16-35066
Plaintiff-Appellant, D.C. No. 3:15-cv-05234-JCC
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
John C. Coughenour, District Judge, Presiding
Submitted April 14, 2017 * *
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
David Curtis appeals the district court=s judgment affirming the
Commissioner of Social Security=s denial of his application for disability insurance
benefits under Title II of the Social Security Act. We have jurisdiction under 28
U.S.C. ' 1291. We vacate and remand.
The ALJ erred in rejecting the opinion of state agency consultant, Dr.
Hoskins, based on ambiguity about which of the residual functional capacity
*
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).
(ARFC@) assessments his opinion affirmed, because the ALJ had a duty to fully and
fairly develop the record, including clarifying the basis for Dr. Hoskins=s opinion.
See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Tonapetyan v. Halter,
242 F.3d 1144, 1150 (9th Cir. 2001) (AAmbiguous evidence, or the ALJ's own
finding that the record is inadequate to allow for proper evaluation of the evidence,
triggers the ALJ's duty to conduct an appropriate inquiry.@ (Citations and internal
quotation marks omitted)).
The ALJ erred in failing to refer to specific evidence in the record in
alternatively rejecting Dr. Hoskins=s opinion that Curtis had a sedentary RFC.
Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). The ALJ=s conclusion that
there were Aminimal@ treatment records in the relevant period was premised on an
inaccurate summary of the evidence. See Ghanim v. Colvin, 763 F.3d 1154, 1161-
62 (9th Cir. 2014). Further, the ALJ failed to make specific findings or explain his
interpretation of the evidence regarding Aclaimant=s activities in prison,@ as a basis
for rejecting the sedentary RFC.
The ALJ also failed to provide specific, clear and convincing reasons for
finding Curtis not fully credible.
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See Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 8 2007) (ALJ must provide
clear and convincing reasons for discrediting a claimant absent affirmative evidence
of malingering). The ALJ failed to make specific findings relating to Curtis=s
activities in prison and after his release, did not explain how these activities were
inconsistent with any specific pain testimony from Curtis, or a sedentary RFC, and
failed to make findings relating to the activities and their transferability to work.
See id. at 639. To the extent that the ALJ relied on a lack of treatment records
related to Curtis=s back pain as a basis for discrediting his testimony, as explained
above, the ALJ=s conclusion that there were minimal treatment records is
inaccurate. These errors were not harmless because the only remaining basis to
discount Curtis=s credibility was the ALJ=s conclusion that there was some
inconsistency between Curtis=s testimony and treatment records about when Curtis
stopped using a wheelchair and started using a cane. This finding alone does not
constitute substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012). Thus, on the record before us, we do not sustain the negative credibility
assessment.
We therefore vacate and remand to the district court with instructions to
remand, on an open record, to the Social Security Administration for further
proceedings. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101
(9th Cir. 2014) (AWhere there is conflicting evidence, and not all essential factual
3 16-35066
issues have been resolved, a remand for an award of benefits is inappropriate.@).
Each party shall bear its own costs.
VACATED and REMANDED with INSTRUCTIONS.
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