Michael Ienco v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL IENCO,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
No. 13-17251
D.C. No. 2:12-cv-02317-ROS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Submitted December 11, 2015**
San Francisco, California
Before: BYBEE and CHRISTEN, Circuit Judges, and CHEN,*** District Judge.
FILED
DEC 24 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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Edward M. Chen, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.

-- 1 of 3 --

Claimant Michael Ienco seeks review of the denial of his application for
disability insurance benefits. Ienco alleges disability due to schizoaffective
disorder, attention deficit disorder (ADD), and attention deficit hyperactivity
disorder (ADHD). We have jurisdiction under 28 U.S.C. § 1291, and we reverse
and remand for further proceedings.
The ALJ erred by giving greater weight to the reviewing medical expert’s
opinion rather than the opinions of the treating and examining physicians. Dr. Dy,
Ienco’s treating physician, opined that Ienco should “work no more than 25 hours
per week.” This limitation is the crux of Ienco’s disability claim, and the ALJ did
not give specific and legitimate reasons to discount the treating and examining
physicians’ opinions supporting it. See Ghanim v. Colvin, 763 F.3d 1154, 1161
(9th Cir. 2014) (“An ALJ may only reject a treating physician’s contradicted
opinions by providing ‘specific and legitimate reasons that are supported by
substantial evidence.’” (citation omitted)). With regard to Dr. Dy, the ALJ stated
only that Dr. Dy “appear[ed] to have adopted the claimant’s subjective allegations
and presented them as her own, which diminishes her overall credibility.” This is
not a specific and legitimate reason, especially in light of the ALJ’s finding that Dr.
Dy’s opinion was “reasonable and . . . supported by the medical evidence of
record.” The ALJ gave no reasons for rejecting the opinion of Dr. Graff, Ienco’s
2

-- 2 of 3 --

examining physician, who opined that Ienco suffered various limitations. Further,
the ALJ erred by assigning controlling weight to the reviewing medical expert’s
opinion because the reviewing medical expert admitted that he “really can’t
comment” on “how many hours [Ienco] should work a week.”
The ALJ also erred by not including in the vocational expert hypothetical
Ienco’s schizoaffective disorder, ADD, and ADH, all of which the ALJ found
severe at step two of the sequential process. “If a vocational expert’s hypothetical
does not reflect all the claimant’s limitations, then the expert’s testimony has no
evidentiary value to support a finding that the claimant can perform jobs in the
national economy.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (quoting
Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993)). Because the vocational
expert’s testimony did not reflect all of Ienco’s limitations, the ALJ erred by
relying on it.
We remand to the ALJ to reconsider Ienco’s eligibility for disability
benefits. In particular, on remand the ALJ shall make findings regarding Ienco’s
ability to work in excess of 25 hours per week.
REVERSED AND REMANDED.
3

-- 3 of 3 --