Audra Hopkins v. Kilolo Kijakazi

                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 7 2022
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

AUDRA E. HOPKINS                                No.    19-15939

                Plaintiff-Appellant,            D.C. No. 3:18-cv-08129-DGC

 v.
                                                MEMORANDUM*
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                             Submitted April 7, 2022**


Before: D.W. NELSON, BERZON and CHRISTEN, Circuit Judges.

      Audra E. Hopkins appeals the district court’s judgment vacating the

Commissioner of Social Security's denial of her application for disability insurance

benefits and supplemental security income under Titles II and XVI of the Social


      *
             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).
Security Act and remanding to the agency for further proceedings. We have

jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion the district

court’s decision to remand for further proceedings. Leon v. Berryhill, 880 F.3d

1041, 1045 (9th Cir. 2017). We affirm.

      The parties agree with the district court’s conclusion that the ALJ did not

provide legally sufficient reasons for discounting the opinion of Hopkins’s treating

physician, Dr. Mary Janikowski.

      The district court properly concluded that the ALJ did not provide “clear and

convincing” reasons for discounting Hopkins’s testimony about her pain and other

symptoms. Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014) (“[I]f there

is no evidence of malingering, ‘the ALJ may reject the claimant’s symptom

testimony only by giving specific, clear, and convincing reasons.’”) (citation

omitted). The district court properly rejected the ALJ’s conclusion that Hopkins’s

limited daily activities demonstrated that she “is able to spend a substantial part of

[her] day engaged in pursuits involving the performance of physical functions that

are transferable to a work setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.

2007). The district court also properly concluded that the ALJ’s selective and

vague analysis of the medical record did not provide a clear and convincing basis

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to discount Hopkins’s symptom testimony.

      Having determined that the ALJ discounted evidence for legally insufficient

reasons, the district court applied this circuit’s credit-as-true analysis to determine

whether to remand for further proceedings or the payment of benefits. See Leon,

880 F.3d at 1045 (outlining steps of the analysis). The district court did not

consider whether the improperly discredited evidence established disability

because it first found that there were “outstanding issues that must be resolved

before a disability determination can be made.” Id.; see also Treichler v. Comm’r,

775 F.3d 1090, 1105 (9th Cir. 2014) (concluding that the court is required “to

assess whether there are outstanding issues requiring resolution before considering

whether to hold that the claimant's testimony is credible as a matter of law”)

(emphasis in original).

      The district court did not abuse its discretion in remanding for further

proceedings. It identified “mixed” clinical findings in the record. It described in

detail how the “normal” findings the ALJ emphasized co-existed with evidence

suggesting Hopkins’s impairments were more serious and limiting than the ALJ

allowed. “Where there is conflicting evidence, and not all essential factual issues

have been resolved, a remand for an award of benefits is inappropriate.” Treichler,

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775 F.3d at 1101.

      Similarly, the district court properly cited the conflict between Dr.

Janikowski’s opinion and the report of consultative examiner Dr. Efren Cano as a

reason to remand for further findings about Hopkins’s impairments. The two

doctors reached different conclusions about Hopkins’s limitations based on their

respective clinical findings. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.

2002) (“The opinions of non-treating or non-examining physicians may . . . serve

as substantial evidence when the opinions are consistent with independent clinical

findings or other evidence in the record.”). The district court determined that

although the ALJ recognized that Dr. Cano’s opinion was based in part on outdated

treatment records, it did give that opinion partial weight without specifying “why

Dr. Cano’s report was credible as to its other findings,” or “which specific portions

of [Dr. Janikowski’s] testimony Dr. Cano’s report discredits.” This lack of

explanation confirms that the district court’s determination that there are

outstanding issues requiring resolution was not an abuse of discretion.

      The remand decision in a Social Security case “is a fact-bound determination

that arises in an infinite variety of contexts,” and properly consigned to the district

court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1177 (9th Cir. 2000). The

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district court did not abuse its discretion here.

      AFFIRMED.




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