NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN EARL CLARKE, No. 15-16992
Plaintiff-Appellant, D.C. No. 2:14-cv-02350-GMS
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted July 11, 2017
San Francisco, California
Before: GRABER and FRIEDLAND, Circuit Judges, and MARSHALL,** District
Judge.
John Clarke appeals the district court’s order affirming the denial of his
application for disability insurance benefits. Clarke, who alleged disability based on
bipolar disorder and peripheral neuropathy secondary to diabetes, argues that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Consuelo B. Marshall, United States District Judge for
the Central District of California, sitting by designation.
administrative law judge (“ALJ”) erred by improperly discounting Clarke’s testimony
and rejecting the opinions of treating psychiatrist Dr. Hicks and examining
psychologist Dr. Finch without giving specific and legitimate reasons. He also argues
that the ALJ erred by ignoring the opinion of non-examining psychologist Dr. Penner
and by improperly discrediting or ignoring altogether lay witness testimony. We
reverse and remand for further proceedings.
1. When an ALJ makes an adverse credibility finding but fails to specify
what testimony he finds not credible or why he came to this conclusion, he errs.
See Brown-Hunter v. Colvin, 806 F.3d 487, 491-94 (9th Cir. 2015); Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102-03 (9th Cir. 2014). Here,
because the ALJ did not mention any of Clarke’s specific testimony about his
limitations, let alone specify which parts he found not credible or connect record
evidence to any of Clarke’s specific allegations, he erred under Brown-Hunter and
Treichler. See Brown-Hunter, 806 F.3d at 494; Treichler, 775 F.3d at 1103.
2. The ALJ did not err by giving Dr. Hicks’s opinion only partial weight.
Dr. Hicks’s treatment notes rarely mention Clarke’s mood or mental status or
reflect any adjustment to his medication. And when the treatment notes do reflect
an increase in situational depression, they do not reflect the severity of symptoms
that would be consistent with Dr. Hicks’s functional capacity opinion.
Furthermore, Dr. Hicks could have provided more explanation for his opinion on
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the evaluation form that he filled out. Instead, Dr. Hicks merely wrote, “Can’t
work at all” in response to a question asking him to explain his opinion about
Clarke’s stamina and attention span and did not respond to a question asking for
any other comments on his assessment. In these circumstances, inconsistency
between Dr. Hicks’s opinion and his treatment notes was a specific and legitimate
reason supported by substantial evidence to give Dr. Hicks’s opinion less than
controlling weight.
3. The ALJ erred by failing to discuss non-examining psychologist Dr.
Penner’s opinion. Because the ALJ did not mention Dr. Penner’s opinion, we do
not know whether he considered it, as the regulations require. See 20 C.F.R.
§ 404.1513a(b)-(b)(1); see also SSR 96-6p, 1996 WL 374180 (July 2, 1996),
rescinded and replaced by SSR 17-2p, 82 Fed. Reg. 15,263-02 (Mar. 27, 2017)
(both the SSR in effect at time of ALJ’s decision and the SSR that replaced it
required ALJs to consider state agency psychological consultants’ opinions).
4. In the absence of adopting Dr. Penner’s interpretation (or giving some
other cogent explanation), we cannot say that the ALJ reasonably interpreted Dr.
Finch’s opinion concerning Clarke’s potential inability to attend work as regularly
and as punctually as an employer would require, an issue the ALJ did not mention.
The ALJ thus erred by failing to explain why he adopted some parts of Dr. Finch’s
opinion but not others.
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5. The Commissioner concedes that the ALJ’s rejection of Clarke’s ex-
wife’s testimony and ignoring of his mother’s and sister’s testimony was error.
6. These errors were not harmless because they were not “inconsequential to
the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115
(9th Cir. 2012) (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,
1162 (9th Cir. 2008)). Crediting the testimony about Clarke’s limited ability to
stand for long periods of time or the medical opinions about his potential problems
with attendance could lead to a different Residual Functional Capacity (“RFC”),
which could change the outcome of this case.
7. We decline Clarke’s request to remand for an award of benefits. The
evidence here is potentially consistent with multiple RFCs and there is no evidence
in the record about the availability of jobs that could accommodate an RFC that
adopted some, but not all, of Clarke’s alleged limitations. Accordingly, we remand
for further proceedings.
REVERSED and REMANDED.
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