Sheila Kinzer v. Carolyn W. Colvin, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHEILA KINZER,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant - Appellee.
No. 12-16345
D.C. No. 11-00328-PHX-JAT
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted March 12, 2014
San Francisco, California
Before: McKEOWN and GOULD, Circuit Judges, and QUIST, Senior District
Judge.**
Sheila Kinzer appeals the district court’s decision affirming the
Commissioner of Social Security’s denial of disability insurance benefits. We
FILED
APR 10 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Gordon J. Quist, Senior District Judge for the United
States District Court for the Western District of Michigan, sitting by designation.

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review the district court’s order de novo. Moisa v. Barnhart, 367 F.3d 882, 885
(9th Cir. 2004).
1. The Administrative Law Judge (the “ALJ”) erred in rejecting the
treating source medical opinions of Dr. Matthew J. Ross and Dr. Michael S. Biscoe
for two reasons. First, even though Ross’s and Biscoe’s opinions were not entitled
to controlling weight, the ALJ was still required to give deference to and accord
some weight to their opinions. See SSR 96-2p, 1996 WL 374188 (July 2, 1996)
(“Treating source medical opinions are still entitled to deference and must be
weighed using all of the factors provided in 20 CFR 404.1527 . . . .”). He did not.
Second, and independent of the first error, the ALJ failed to provide specific
and legitimate reasons for rejecting Ross’s and Biscoe’s opinions. See Orn v.
Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (“Even if the treating doctor’s opinion is
contradicted by another doctor, the ALJ may not reject this opinion without
providing specific and legitimate reasons supported by substantial evidence in the
record.”) (internal quotation marks and citations omitted) (quoting Reddick v.
Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Indeed, the ALJ concluded—without
any explanation—that Ross’s opinion was “not well-supported by the . . . other
objective findings in the case record,” and that Biscoe’s opinion “contrast[ed]
sharply with the other evidence of record.” These conclusions were insufficient to
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dispose of the treating doctor’s opinions. See Embrey v. Bowen, 849 F.2d 418, 421
(9th Cir. 1988) (“To say that medical opinions are not supported by sufficient
objective findings . . . does not achieve the level of specificity our prior cases have
required, even when the objective factors are listed seriatim.”).
2. Even though the ALJ rejected Ross’s and Biscoe’s opinions without
providing legally sufficient reasons, the credit-as-true rule does not apply in this
case because there are outstanding issues that must be resolved before a proper
disability determination can be made—namely, the proper evaluation and
resolution of the conflicting medical opinions of the various treating doctors. See
Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1398–1401 (9th Cir.
1988).
3. The ALJ erred in expressing Kinzer’s residual functional capacity
without first making a function-by-function assessment of her limitations or
restrictions pursuant to SSR 96-8p, 1996 WL 374184 (July 2, 1996). This is
reversible error. See Shafer v. Astrue, 518 F.3d 1067, 1070 (9th Cir. 2008).
* * *
We therefore reverse the decision of the district court and remand this case
to the district court with instructions to remand to the Commissioner for further
proceedings. On remand, the district court should instruct the ALJ to (1) accord
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proper weight to Ross’s and Biscoe’s opinions using the factors provided in 20
C.F.R. § 404.1527; (2) provide specific and legitimate reasons if the ALJ decides
to reject those opinions; and (3) make a function-by-function assessment of
Kinzer’s residual function capacity.
REVERSED and REMANDED.
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Kinzer v. Colvin, No. 12-16345
GOULD, Circuit Judge, concurring in part and concurring in the judgment:
I concur in the judgment reached by the court, and also concur in all of the
memorandum disposition except Part 2 dealing with the credit-as-true rule.
Although the panel concludes that rule does not apply in this case, it is my view
that a credit-as-true rule is not consistent with normal administrative law
principles. I recognize that the panel is bound by prior Ninth Circuit precedent,
and my position may require review by an en banc panel or the Supreme Court in
some other case where the credit-as-true rule is applied on a Social Security case
remand. In my view, in almost all cases remands to an administrative agency
should be on an open record. Cf. Soto-Olarte v. Holder, 555 F.3d 1089, 1095-96
(9th Cir. 2009).
FILED
APR 10 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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