Paula J. Udell v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAULA J. UDELL,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant - Appellee.
No. 13-56741
D.C. No. 3:12-cv-02548-MLH
(JMA)
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted December 9, 2015
Pasadena, California
Before: GOULD and BERZON, Circuit Judges, and STEEH,** Senior District Judge.
Paula Udell (“Udell”) appeals the district court’s order affirming the denial
of her application for Social Security disability insurance benefits by the
FILED
JAN 11 2016
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 George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.

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administrative law judge (“ALJ”). Udell contends the ALJ erred by rejecting her
symptom testimony, as well as that of two lay witnesses, without providing
specific, clear and convincing reasons and by failing to address the brain injury and
left-sided weakness she stated as her primary impairment. We review the district
court’s opinion de novo, and we affirm the ALJ’s decision if it is both free of legal
error and supported by substantial evidence. Tommasetti v. Astrue, 533 F.3d 1035,
1038 (9th Cir. 2008). We conclude the ALJ did not provide an adequate
explanation of his decision, and so we vacate and remand for further proceedings.
The ALJ found that a medically determinable impairment could reasonably
be expected to cause Udell’s symptoms and did not identify any evidence of
malingering. Therefore, the ALJ could reject Udell’s testimony regarding the
severity of her symptoms only for “specific, clear and convincing reasons.”
Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (quoting Molina v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012)). However, the ALJ did not give any reasons
for rejecting Udell’s testimony concerning the effects of her symptoms. On appeal,
“[w]e are constrained to review the reasons the ALJ asserts.” Burrell, 775 F.3d at
1138 (citation omitted). “General findings are insufficient; rather, the ALJ must
identify what testimony is not credible and what evidence undermines the
claimant’s complaints.” Id. (citation omitted).
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In addition, the ALJ heard testimony from Udell’s brother and sister-in-law
regarding Udell’s inability to work due to manipulative limitations related to her
physical impairments. The ALJ did not make any express findings whatsoever
about the lay witnesses’ credibility, or what weight to give their testimony.
However, the ALJ’s assessment of Udell’s residual functional capacity shows that
he disregarded the lay testimony, because he did not include any of the limitations
the witnesses described. Moreover, since the ALJ did not specifically discuss the
reasons for rejecting Udell’s testimony, it cannot be said that the same reasoning
applies to its rejection of similar lay testimony. Molina, 674 F.3d at 1116. In this
case, the lay testimony was more specific than Udell’s about her inability to do
various work tasks. Because the ALJ did not provide any, let alone clear and
convincing, reasons for rejecting the lay testimony, we have no way to determine
whether any error materially impacted the ALJ’s ultimate decision. Id.; see also
Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009) (“[W]e remind ALJs to tie
the reasoning of their credibility determinations to the particular witnesses whose
testimony they reject.”).
Moreover, the ALJ did not address Udell’s brain injury and resulting left-
sided weakness, impairments on which her disability claim was primarily based.
While the medical evidence submitted by Udell was sparse, it was uncontradicted
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in supporting a diagnosis of left-sided hemiplegia, or weakness, stemming from a
childhood brain injury. It was error for the ALJ not to address Udell’s alleged
chronic impairments or to give reasons for disregarding medical evidence, albeit
sparse, that supported a finding of impairment. See Marsh v. Colvin, 792 F.3d
1170, 1172–73 (9th Cir. 2015) (“[A]n ALJ cannot in its decision totally ignore a
treating doctor and his or her notes, without even mentioning them.”).
Further proceedings would serve the useful purpose of allowing
development of the record in order for the ALJ to determine if Udell was, in fact,
disabled before her date last insured. Cf. Garrison v. Colvin, 759 F.3d 995, 1020
(9th Cir. 2014) (explaining that a case may be remanded to the ALJ with
instructions to award benefits where “(1) the record has been fully developed and
further administrative proceedings would serve no useful purpose; (2) the ALJ has
failed to provide legally sufficient reasons for rejecting evidence, whether claimant
testimony or medical opinion; and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the claimant disabled on
remand.”). Because the record here has not been fully developed, we remand to
the district court with instructions to remand to the ALJ on an open record for
further proceedings. We express no view as to the appropriate result on remand.
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Pursuant to General order 4.5(e), the panel determines that each party shall
bear its own costs.
VACATED and REMANDED for further proceedings.
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