David Lee Zimmerman v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID LEE ZIMMERMAN,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
No. 13-16727
D.C. No. 2:12-cv-00598-JAT
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, Senior District Judge, Presiding
Argued and Submitted November 18, 2015
San Francisco, California
Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.
David Zimmerman claims disability benefits on behalf of his late wife,
Shelly Rae Weiner, who died during this appeal.1
FILED
JAN 14 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.
1 The court granted Mr. Zimmerman’s motion for substitution pursuant to
Federal Rule of Appellate Procedure 43(a)(1).

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The Commissioner denied Weiner’s claim, and the district court affirmed.
We review the district court’s ruling de novo, and will affirm unless the ALJ’s
decision was based on legal error or not supported by substantial evidence in the
record. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999) (“Substantial evidence
is more than a mere scintilla but less than a preponderance.”).
1. The ALJ did not err in her evaluation of Weiner’s residual functional
capacity. Her summary of the copious evidence in this case sufficiently discussed
the support for her assessment and resolved inconsistencies and ambiguities in the
evidence.
2. The ALJ did not err by discounting Weiner’s symptom testimony.
Assuming Weiner “presented objective medical evidence of an underlying
impairment” that could have caused the symptoms Weiner alleged, the ALJ
provided “specific, clear and convincing” reasons for rejecting Weiner’s testimony.
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citation omitted).
3. The ALJ erred when she failed to explain why she did not credit Dr.
General’s and Nurse Practitioner Longchamps’ conclusions. Dr. General is an
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“acceptable medical source[]” who gave an opinion on Weiner’s ability to work.
20 C.F.R. §§ 404.1513(a)(2), 404.1520b, 404.1527(a), (c). Longchamps, while not
an “acceptable medical source,” was an “other source” that examined Weiner on
several occasions and concluded Weiner’s pain affected her ability to work. See
id. § 404.1513(d). The ALJ erred by not setting forth “specific, legitimate reasons”
for not crediting these opinions. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
2014).
The ALJ’s failure was not necessarily harmless. A “reasonable” ALJ, when
fully crediting those two opinions, “could have reached a different disability
determination.” See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th
Cir. 2005). The vocational expert testified at the hearing that a hypothetical person
with the disabilities described by Longchamps and Dr. General would not be able
to work. In contrast, the same hypothetical person without those symptoms would
be able to work.
“[W]e retain flexibility in determining the appropriate remedy,” Burrell v.
Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (citation omitted), and here there
remains “serious doubt” as to whether Weiner actually was disabled, Garrison, 759
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F.3d at 1021. Had the ALJ considered the Longchamps and Dr. General opinions,
they would not necessarily have been persuasive. There also is evidence in the
record that suggests Weiner’s medical problems may have been caused by alcohol
abuse, which if true, would prevent an award of benefits. See 42 U.S.C. §
423(d)(2)(C); Harman v. Apfel, 211 F.3d 1172, at 1180–81 (9th Cir. 2000). We
vacate the district court’s judgment, and we remand the case for further
proceedings consistent with this disposition.
Each party shall bear their own costs on appeal. AFFIRMED in part,
VACATED in part, and REMANDED.
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