FILED
NOT FOR PUBLICATION
APR 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARBARA ANN RESSLER, No. 15-15979
Plaintiff-Appellant, D.C. No. 2:13-cv-02471-SPL
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Steven Paul Logan, District Judge, Presiding
Argued and Submitted March 17, 2017
San Francisco, California
Before: WARDLAW and GOULD, Circuit Judges, and SHEA,** District Judge.
Barbara Ressler appeals the district court’s order affirming the
Commissioner’s denial of Ressler’s application for supplemental security income
under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward F. Shea, United States District Judge for the
Eastern District of Washington, sitting by designation.
Ressler claimed that disability entitled her to supplemental security income
based on a schizophrenia diagnosis. After performing the five step disability
evaluation set forth in 20 C.F.R. § 416.920, the Administrative Law Judge (ALJ)
concluded that Ressler was not disabled within the meaning of the Social Security
Act because she could perform work available in sufficient quantities in the
national economy. The district court affirmed.
Ressler asserts that the ALJ committed two errors that require reversal: (1)
the ALJ inappropriately failed to perform a function-by-function analysis as to
residual functional capacity; and (2) the ALJ erred in relying on the
Medical-Vocational Guidelines at Step 5, rather than taking testimony from a
vocational expert.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the
judgment of the district court and remand with instructions to remand to the ALJ
for an award of benefits.
I.
Ressler’s medical background and relevant facts are known to the parties
and need not be recited here.
II.
2
A district court’s order upholding the Commissioner’s denial of benefits is
reviewed de novo. See Carillo-Yeras v. Astrue, 671 F.3d 731, 734 (9th Cir. 2011).
We will uphold the Commissioner’s decision if it is free of legal error and
supported by substantial evidence. Id.
III.
The ALJ need not perform a function-by-function analysis for conditions or
impairments that the ALJ “found neither credible nor supported by the record.”
Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In order for this
standard to apply, however, the ALJ must have properly rejected evidence
supported by the record and contained in credible testimony. Here, the ALJ erred
by improperly weighing medical evidence and improperly weighing the testimony
of Ressler and Schindler. Applying the proper analysis, Ressler has significant
nonexertional limitations. The ALJ should have performed a function-by-function
analysis and taken vocational expert testimony.
The ALJ applied the incorrect standard when rejecting medical evidence.
Our cases clearly hold that an ALJ “must explain why significant probative
evidence has been rejected.” Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393,
1395 (9th Cir. 1984) (internal quotation marks omitted). Our precedent also sets
specific standards for rejecting medical evidence, see Bayliss, 427 F.3d at 1216, in
3
addition to the general “demand that the agency set forth the reasoning behind its
decisions in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
806 F.3d 487, 492 (9th Cir. 2015). This is particularly true when the ALJ accepts
portions of a medical opinion, but rejects other portions of the opinion.
The ALJ failed to apply these standards. The ALJ explained that he gave
weight to the medical opinions and medical evidence in the record “to the extent
that they are consistent with this decision.” Such a standard is nowhere reflected in
our case law and the ALJ’s application of it constitutes an error of law.
In addition, the ALJ improperly determined that the testimony of Ressler
and Schindler was not credible. This Court has explained that “impairments that
would unquestionably preclude work and all the pressures of a workplace
environment will often be consistent with doing more than merely resting in bed all
day.” Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). The ALJ relied on
Ressler’s minimal daily activities to determine that the testimony was not credible.
This was improper, as Ressler’s activities did not indicate an ability to work.
Especially given the fact that there was no evidence or claim of malingering, the
ALJ’s explanation for rejecting Ressler’s testimony was insufficient. Burrell v.
Colvin, 775 F.3d 1133, 1136–37 (9th Cir. 2014) (affirming that an ALJ must
4
provide “specific, clear, and convincing reasons” for rejecting a claimant’s
testimony, unless there is evidence of malingering).
Finally, due to the severe nonexertional limitations reflected by the record
and by the testimony of Ressler and Schindler, the Medical-Vocational Grid
categories did not fully reflect Ressler’s limitations. The ALJ was therefore
required to take testimony from a vocational expert, rather than relying on the
Medical-Vocational Guidelines. Holohan v. Massanari, 246 F.3d 1195, 1208–09
(9th Cir. 2001).
IV.
As a result of the error discussed above, the application of the credit-as-true
rule is appropriate in this case. That rule requires that:
(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose;
(2) the ALJ has failed to provide legally sufficient reasons for rejecting
evidence, whether claimant testimony or medical opinion; and
(3) if the improperly discredited evidence were credited as true, the ALJ
would be required to find the claimant disabled on remand.
Garrison, 759 F.3d at 1020.
Here, all three requirements of the credit-as-true rule are satisfied. First,
there is no need to develop the record or convene further proceedings. Although
5
the ALJ did not perform a function-by-function analysis, that failure does not
necessarily require remand. See id. at 1021 n.28. Moreover, in response to
questioning by Ressler’s representative, the vocational expert opined that an
individual who would be unable to stay on task for 15 percent of a work day would
be unable to maintain employment. Based on this limited testimony and the
evidence in the record of Ressler’s inability to maintain focus throughout the day,
further proceedings are not required to determine whether Ressler is disabled.
Second, as explained above, the ALJ failed to apply the proper legal
standard for rejecting medical evidence and testimony.
Third, if the medical opinions and testimony is weighed appropriately, and if
such evidence is properly credited as true, then in light of the vocational expert’s
testimony the ALJ would be required to make a finding that Ressler was disabled
on remand.
Finally, there is nothing in the record as a whole that creates serious doubt
about whether Ressler is, in fact, disabled within the meaning of the Social
Security Act.
Accordingly, the Court remands for a calculation and award of benefits.
REVERSED and REMANDED.
6