FILED
NOT FOR PUBLICATION
OCT 24 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DESIREH AVA, ) No. 16-55010
)
Plaintiff-Appellant, ) D.C. No. 8:14-cv-01814-JCG
)
v. ) MEMORANDUM*
)
NANCY A. BERRYHILL, Acting )
Commissioner Social Security, )
)
Defendant-Appellee. )
)
Appeal from the United States District Court
for the Central District of California
Jay Gandhi, Magistrate Judge, Presiding
Argued and Submitted October 3, 2017
Pasadena, California
Before: FERNANDEZ, RAWLINSON, and N.R. SMITH, Circuit Judges.
Desireh Ava appeals the district court’s judgment which affirmed the
Commissioner of Social Security’s denial of her application for disability
insurance benefits. We vacate and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Ava asserts that the administrative law judge (ALJ) erred in determining
Ava’s residual functional capacity (RFC) when she rejected central parts of the
opinion of an examining physician, Dr. John Godes, without explanation. We
agree.
While the opinions of an examining physician can be rejected in favor of the
opinions of reviewing physicians, or others, it is error for an ALJ to do so without
“providing specific and legitimate reasons that are supported by substantial
evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); see also
Ghanim v. Colvin, 763 F.3d 1154, 1160–61 (9th Cir. 2014); Garrison v. Colvin,
759 F.3d 995, 1012–13 (9th Cir. 2014); Lester v. Chater, 81 F.3d 821, 830–31 (9th
Cir. 1995). Here, the ALJ gave no specific reasons for rejecting Dr. Godes’
opinion regarding Ava’s ability to sit, walk, stand, and reach.1 Rather, the ALJ
generally stated that Dr. Godes’ opinion would be “given significant weight,” but
also generally stated that the opinions of two reviewing physicians would be
“given significant weight.” The ALJ never stated why some of the latter’s
opinions were accepted rather than those of Dr. Godes. That will not do. Nor can
we say that the error was harmless. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th
1
We note also, that at one part of his report, Dr. Godes indicated that Ava
could never push/pull, but at another part he indicated that she could do so
occasionally.
2
Cir. 2015). The reasons behind the ALJ’s decision regarding those central parts of
the RFC are unstated and, therefore, her path to her decision remains legally
undiscernable. See Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015); cf.
Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). Yet, of necessity, the
ultimate decision about what work Ava could still perform2 rested on the RFC.3
That is not to say that there is no substantial evidence4 in the record that
could support the ALJ’s decision (or a contrary decision for that matter). Indeed,
by exploring this record we can find reasons to justify the ALJ’s ultimate
determination of the RFC and disability decision, but that would not be a proper
use of our prerogatives and prudence. It is a task committed to the ALJ’s
experience and expertise—she must give us the reasons for her decision. On the
other hand, we cannot say that on this record the ALJ’s failure to explain her
reasons sufficiently has resulted in one of those rare circumstances in which we
should direct an immediate award of benefits. See Brown-Hunter, 806 F.3d at
495–96; Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103, 1107 (9th
2
See 20 C.F.R. § 404.1520(a)(4)(v).
3
See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006).
4
See, e.g., Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); cf.
Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692–93 (9th Cir. 2009).
3
Cir. 2014). Therefore, we decline so to do.
VACATED and REMANDED to the district court for further remand to the
Commissioner for further proceedings consistent with this disposition. Costs on
appeal are taxed to the Commissioner.
4
FILED
Ava v. Berryhill, Case No. 16-55010
OCT 24 2017
Rawlinson, Circuit Judge, concurring:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the vacatur and remand of the district court’s decision for the
express purpose of remand to the Administrative Law Judge to more definitively
detail the relative weight given to the opinions of the various medical providers.