David Curtis v. NANCY A. BERRYHILL, Acting Commissioner Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID CURTIS,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
No. 16-35066
D.C. No. 3:15-cv-05234-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted April 14, 2017**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
David Curtis appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for disability insurance
FILED
APR 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 4 --

benefits under Title II of the Social Security Act. We have jurisdiction under 28
U.S.C. § 1291. We vacate and remand.
The ALJ erred in rejecting the opinion of state agency consultant, Dr.
Hoskins, based on ambiguity about which of the residual functional capacity
(“RFC”) assessments his opinion affirmed, because the ALJ had a duty to fully and
fairly develop the record, including clarifying the basis for Dr. Hoskins’s opinion.
See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Tonapetyan v. Halter,
242 F.3d 1144, 1150 (9th Cir. 2001) (“Ambiguous evidence, or the ALJ's own
finding that the record is inadequate to allow for proper evaluation of the evidence,
triggers the ALJ's duty to conduct an appropriate inquiry.” (Citations and internal
quotation marks omitted)).
The ALJ erred in failing to refer to specific evidence in the record in
alternatively rejecting Dr. Hoskins’s opinion that Curtis had a sedentary RFC.
Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). The ALJ’s conclusion
that there were “minimal” treatment records in the relevant period was premised on
an inaccurate summary of the evidence. See Ghanim v. Colvin, 763 F.3d 1154,
1161-62 (9th Cir. 2014). Further, the ALJ failed to make specific findings or
explain his interpretation of the evidence regarding “claimant’s activities in
prison,” as a basis for rejecting the sedentary RFC.
2

-- 2 of 4 --

The ALJ also failed to provide specific, clear and convincing reasons for
finding Curtis not fully credible. See Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 8
2007) (ALJ must provide clear and convincing reasons for discrediting a claimant
absent affirmative evidence of malingering). The ALJ failed to make specific
findings relating to Curtis’s activities in prison and after his release, did not explain
how these activities were inconsistent with any specific pain testimony from
Curtis, or a sedentary RFC, and failed to make findings relating to the activities
and their transferability to work. See id. at 639. To the extent that the ALJ relied
on a lack of treatment records related to Curtis’s back pain as a basis for
discrediting his testimony, as explained above, the ALJ’s conclusion that there
were minimal treatment records is inaccurate. These errors were not harmless
because the only remaining basis to discount Curtis’s credibility was the ALJ’s
conclusion that there was some inconsistency between Curtis’s testimony and
treatment records about when Curtis stopped using a wheelchair and started using a
cane. This finding alone does not constitute substantial evidence. Molina v.
Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). Thus, on the record before us, we do
not sustain the negative credibility assessment.
We therefore vacate and remand to the district court with instructions to
remand, on an open record, to the Social Security Administration for further
3

-- 3 of 4 --

proceedings. See Treichler v. Comm'r of 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.”).
Each party shall bear its own costs.
VACATED and REMANDED with INSTRUCTIONS.
4

-- 4 of 4 --