Shelly S. Jones v. MICHAEL J. ASTRUE, Commissioner of Social Security

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHELLY S. JONES,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
No. 11-35660
D.C. No. 3:10-cv-05483-RJB
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted December 6, 2012
Seattle, Washington
Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District
Judge.**
FILED
DEC 31 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Shelly S. Jones appeals the district court’s judgment affirming the decision
of the administrative law judge (ALJ) denying Jones’s application for Social
Security disability benefits. We reverse on two separate grounds.
First, the ALJ stated that he gave “little weight” to a July 2007 opinion by
Dr. George Dueber because “it is unsupported by objective findings and is
inconsistent with the claimant’s own reports of her activities.” However, it is not
clear whether, in deeming the opinion “unsupported by objective findings,” the
ALJ considered the treatment notes in the record, and if so, what specifically made
them insufficient to support the opinion. With respect to Jones’s reported
activities, we do not find them inconsistent with the July 2007 opinion’s
conclusion that unpredictable flare-ups in her symptoms would prevent her from
keeping a regular job. See Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir.
2001). Accordingly, the ALJ failed to provide “specific and legitimate reasons
supported by substantial evidence in the record” for rejecting the July 2007
opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (internal quotation
marks omitted).
Second, the ALJ’s adverse credibility determination with respect to Jones
was not supported by substantial evidence. For the same reason that Jones’s
reported activities were not inconsistent with the July 2007 opinion, they also did

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not cast doubt on her credibility. Likewise, the ALJ’s reliance on the X-rays and
MRI of Jones’s cervical spine to evaluate the severity of her fibromyalgia
symptoms was improper. See Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir.
2004). Finally, the ALJ did not make adequate findings that changes in activity
level, diet, or smoking habits would have permitted Jones to return to work. See
Byrnes v. Shalala, 60 F.3d 639, 641 (9th Cir. 1995).
Because the ALJ’s conclusions largely turned on his weighing of the July
2007 opinion and his credibility determination, we cannot deem the identified
errors harmless. Thus, we remand the case for further proceedings. See Smolen v.
Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). We leave to the ALJ whether the
agency’s rules and regulations permit the record to be reopened on remand for
consideration of, among other things, the medical evidence that was introduced in
Jones’s later application.
REVERSED and REMANDED.

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