Thomas Alvarez Esparza v. CAROLYN W. COLVIN, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS ALVAREZ ESPARZA,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant - Appellee.
No. 13-16522
D.C. No. 2:12-cv-00733-SPL
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Steven P. Logan, Magistrate Judge, Presiding
Argued and Submitted October 22, 2015
San Francisco, California
Before: CLIFTON and N.R. SMITH, Circuit Judges and LASNIK,** District Judge.
Thomas Alvarez Esparza appeals the district court’s judgment affirming the
decision of an administrative law judge (“ALJ”) denying his application for
Disability Insurance Benefits and Supplemental Security Income. Esparza
FILED
NOV 25 2015
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 Robert S. Lasnik, District Judge for the U.S. District
Court for the Western District of Washington, sitting by designation.

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contends the ALJ erred by rejecting his symptom testimony without providing
specific, clear, and convincing reasons and by improperly discounting the weight
of his examining physician’s opinion. We reverse and remand for further
proceedings.
The ALJ found that a medically determinable impairment could reasonably
be expected to cause Esparza’s symptoms and did not identify any evidence of
malingering. Therefore, the ALJ could reject Esparza’s testimony regarding the
severity of his symptoms only for “specific, clear and convincing reasons.” Burrell
v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014). The ALJ provided three reasons
for rejecting Esparza’s testimony: 1) inconsistent statements, 2) admitted activities,
and 3) non-compliance with treatment. Viewed individually or collectively, the
ALJ’s reasons for discrediting Esparza’s testimony are not specific, clear, and
convincing.
The ALJ determined that Esparza provided inconsistent reasons for leaving
his job as a hairstylist and inconsistent reports regarding his limitations. Esparza
gave two reasons for stopping work: 1) the owner refused to rent him a chair any
longer, and 2) the owner was unwilling to work with Esparza’s inconsistent
schedule due to his illness. These explanations are logically consistent and do not
constitute specific, clear, and convincing reasons for discrediting Esparza’s
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symptom testimony. The ALJ also found that Esparza was inconsistent in
reporting his limitations in two function reports, a consultive examiner report, and
in his testimony. A close review of the alleged inconsistencies reveals only slight
changes in Esparza’s reported limitations, which are to be expected over a
21-month period. See Social Security Ruling 96-7p, 1996 SSR LEXIS 4, at *16.
These minor variations are not specific, clear, and convincing reasons to reject
Esparza’s testimony.
Regarding Esparza’s activities, the ALJ found that Esparza “engaged in a
somewhat normal level of daily activity and interaction”; “regularly admitted he
was able to watch television, manage his finances, attend his doctor’s
appointments, talk[] on the phone with friends, and maintain a relationship with his
partner”; and that in the years preceding the hearing, Esparza was able to work as a
caregiver for his father for 13-20 hours per week. The ALJ did not find that
Esparza spent a substantial part of a typical day participating in these activities or
that Esparza’s limited activities translated into the ability to perform sustained
work activities on a regular and continuing basis. See, e.g., Vertigan v. Halter, 260
F.3d 1044, 1049-50 (9th Cir. 2001); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.
2007). In addition, Esparza’s limited care for his father was generally consistent
with Esparza’s reported capabilities. See Garrison v. Colvin, 759 F.3d 995, 1015-
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16 (9th Cir. 2014). Esparza’s activities therefore do not constitute specific, clear,
and convincing reasons for rejecting his testimony.
The ALJ’s third reason for rejecting Esparza’s testimony was
non-compliance with his treatment regimen, but the ALJ did not find that Esparza
lacked good cause for failing to comply or that complying would have allowed him
to return to work. Therefore, the ALJ’s observations do not constitute specific,
clear, and convincing reasons for discrediting Esparza’s testimony. See Byrnes v.
Shalala, 60 F.3d 639, 641 (9th Cir. 1995).
To reject the opinion of Esparza’s treating physician, the ALJ was required
to provide “specific and legitimate reasons that are supported by substantial
evidence.” Burrell, 775 F.3d at 1137 (internal quotation marks and citation
omitted). The ALJ provided four reasons for rejecting the treating physician’s
opinions: 1) the opinions were conclusory and inadequately supported by the
clinical findings, 2) the opinions were “on an issue reserved to the Commissioner,”
3) the opinions were contradictory to the evidence regarding Esparza’s treatment
history and “admitted activities of daily living,” and 4) the treating physician
appeared to rely “heavily” on Esparza’s “subjective complaints that have been
found only partially credible.” None of the ALJ’s reasons for rejecting the treating
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physician’s testimony constitute specific and legitimate reasons supported by
substantial evidence.
Although the treating physician’s opinions were in the form of check-box
questionnaires, that is not a proper basis for rejecting an opinion supported by
treatment notes. See Garrison, 759 F.3d at 1014 n.17. The treating physician’s
extensive notes are consistent with the check-box forms and provide the basis for
his opinions. Moreover, to reject a treating physician’s opinion, an ALJ “can
satisfy the substantial evidence requirement by setting out a detailed and thorough
summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings. The ALJ must do more than state conclusions. He
must set forth his own interpretations and explain why they, rather than the
doctors’, are correct.” Id. at 1012 (internal quotation marks and citation omitted).
Because the ALJ’s opinion fails to explain why her interpretations rather than
Esparza’s treating physician’s were correct, the ALJ failed to satisfy the
“substantial evidence” requirement to reject a treating physician’s opinion.
As to the second reason provided by the ALJ, the fact that the treating
physician’s opinion was on an issue reserved to the Commissioner is not by itself a
reason for rejecting that opinion. See Holohan v. Massanari, 246 F.3d 1195, 1202-
03 (9th Cir. 2001); Social Security Ruling 96-5p, 1996 SSR LEXIS 2, at *6-7.
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With respect to the third rationale, the ALJ failed to articulate with sufficient
specificity how the treating physician’s opinion was contradicted by other medical
evidence in the record. Because the treating physician’s records support the
opinions he provided, and Esparza’s limited activities were consistent with the
treating physician’s opinion, we conclude that the third rationale provided by the
ALJ is not a specific and legitimate reason supported by substantial evidence.
The fourth reason given by the ALJ for rejecting the treating physician’s
opinions is that the opinions were based on Esparza’s subjective complaints. As
explained above, the ALJ did not properly discount Esparza’s testimony.
Therefore, this reason for rejecting the treating physician’s opinion does not
constitute a specific and legitimate reason supported by substantial evidence. See
Burrell, 775 F.3d at 1141.
Further proceedings would serve the useful purpose of allowing further
development of the record, and therefore we remand. See Treichler v. Comm’r of
Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014). If she deems it appropriate,
the ALJ should reopen the hearing to receive additional evidence. See Burrell, 775
F.3d at 1141-42.
We remand with instructions to the district court to remand this case to the
Commissioner for further proceedings.
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REVERSED AND REMANDED.
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