NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARJORIE EDITH WHEATLEY, No. 15-35632
Plaintiff-Appellant, D.C. No. 2:15-cv-00059-MAT
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Mary Alice Theiler, Magistrate Judge, Presiding
Submitted December 11, 2017**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
Judges
Marjorie Wheatley appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of Wheatley’s application for social
security disability insurance benefits under Title II of the Social Security Act. We
*
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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ghanim v. Colvin,
763 F.3d 1154, 1159 (9th Cir. 2014), and we reverse and remand for further
proceedings.
The ALJ failed to provide specific and legitimate reasons for assigning little
weight to Dr. Overman’s opinion. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir.
2014) (noting that the ALJ must make findings setting forth specific and legitimate
reasons in order to reject the contradicted opinion of a treating physician).
Because Dr. Overman examined Wheatley and administered an ultrasound test, he
did not rely “solely” on Wheatley’s subjective complaints to support his functional
assessments, diagnoses and other findings, so the ALJ’s characterization of the
extent of his reliance is error. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199–
1200 (9th Cir. 2008). It is not clear if Dr. Overman’s opinion regarding
Wheatley’s limitations in 19 out of 20 activities of daily living came from
Wheatley’s report, as the ALJ found, or whether Dr. Overman came to this
conclusion on his own. Dr. Overman also does not specify the activities of daily
living, so the ALJ cannot assume that these particular activities conflicted with her
self-reports. This is further error.
The ALJ gave specific and legitimate reasons for assigning only “little to no
weight” to the opinion of Dr. Neiman because his opinion was inconsistent with
the medical evidence and her reported activities. Thomas v. Barnhart, 278 F. 3d
2 15-35632
947, 957 (9th Cir. 2002); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)
(affirming ALJ’s finding that fibromyalgia plaintiff’s allegations of disabling pain
were undermined by plaintiff’s daily activities).
The ALJ erred in giving little weight to Mr. Wheatley’s lay testimony
because he actually based his testimony on his own observations rather than
Wheatley’s subjective complaints. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir.
2009) (holding that the ALJ gave inadequate reasons for rejecting wife’s lay
opinion testimony).
Although the ALJ erred in evaluating Dr. Overman’s opinion and Mr.
Wheatley’s lay testimony, it is not clear from the administrative record that the
ALJ would otherwise be required to award benefits. Treichler v. Comm’r Soc. Sec.
Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (“Where there is conflicting evidence,
and not all essential factual issues have been resolved, a remand for an award of
benefits is inappropriate.”). Accordingly, we remand for further proceedings.
REVERSED and REMANDED.
3 15-35632