NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 19 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIELA CAILEAN, No. 24-596 D.C. No. Plaintiff - Appellant, 2:23-cv-00122-JAT v.

MEMORANDUM*

MARTIN J. O’MALLEY, Commissioner of Social Security,

Defendant - Appellee.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, Senior District Judge, Presiding

Submitted November 6, 2024** Phoenix, Arizona

Before: PAEZ, BERZON, and OWENS, Circuit Judges.

Daniela Cailean appeals from the district court’s judgment affirming the

Commissioner of Social Security’s denial of her application for disability

insurance benefits under Title II of the Social Security Act. “We review de novo

* 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). the district court’s order affirming the [administrative law judge’s (‘ALJ’s’)] denial

of social security benefits and reverse only if the decision was not supported by

substantial evidence or is based on legal error.” Glanden v. Kijakazi, 86 F.4th 838,

843 (9th Cir. 2023). As the parties are familiar with the facts, we do not recount

them here. We reverse and remand.

1. Cailean argues that the ALJ improperly discounted her testimony about

the severity of her subjective symptoms. “Where, as here, an ALJ concludes that a

claimant is not malingering, and that she has provided objective medical evidence

of an underlying impairment which might reasonably produce the pain or other

symptoms alleged, the ALJ may ‘reject the claimant’s testimony about the severity

of her symptoms only by offering specific, clear and convincing reasons for doing

so.’” Brown-Hunter v. Colvin, 806 F.3d 487, 492-93 (9th Cir. 2015) (citation

omitted).

Before the ALJ, Cailean alleged a disability beginning on July 15, 2017.

Before the district court, Cailean amended her claim to a closed period of benefits,

from July 15, 2017 to December 20, 2020.

The ALJ discounted Cailean’s symptom testimony because it was not

entirely consistent with: (1) the effectiveness of her May 2020 spine surgery; and

(2) her activities of daily living as indicated in her adult function report and

hearing testimony. In particular, the ALJ focused on Cailean’s return to full-time

2 24-596 work.

“The ALJ discredited [Cailean’s] testimony as a whole, but [the ALJ’s]

decision does not sufficiently consider the duration of, or chronological fluctuation

in, [Cailean’s] symptoms.” Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021).

“The ALJ therefore erred by disregarding all of [Cailean’s] testimony, including

the portion about [her] early-period incapacity, on the basis of inconsistencies only

clearly applicable to the late-period testimony.” Id. at 1113. In other words, “the

ALJ erroneously rejected [Cailean’s] early-period testimony, since the ALJ

provided no specific, clear, and convincing reasons to find this portion of

[Cailean’s] testimony not credible.” Id. “We therefore hold that, although the ALJ

properly determined that [Cailean’s] testimony was not credible regarding [her]

capacity in the later period of [her] disability claim, the ALJ erred in rejecting

[Cailean’s] testimony wholesale without explaining how [the ALJ’s] rationale for

finding the late-period testimony not credible applied to the early-period

testimony.” Id. at 1114.

2. Cailean also argues that the ALJ improperly rejected the medical

opinions of Dr. Salari, Cailean’s orthopedic surgeon. Under the applicable

regulations, “an ALJ’s decision . . . to discredit any medical opinion, must simply

be supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 787 (9th

Cir. 2022); see also C.F.R. § 404.1520c(a), (c)(1)-(5) (setting forth factors for

3 24-596 evaluating a medical opinion, the most important of which are supportability and

consistency).

The ALJ discounted the opinions of Dr. Salari because they were:

(1) internally inconsistent; and (2) inconsistent with the objective medical evidence

and Cailean’s testimony. Substantial evidence supports that there were some

internal inconsistencies in Dr. Salari’s opinions. However, the ALJ’s error in

failing to consider whether Cailean was disabled for the early portion of the alleged

period may have affected the ALJ’s assessment of Dr. Salari’s opinions.

Therefore, we remand for the ALJ to reassess Dr. Salari’s opinions.

3. In addition, Cailean argues that the ALJ improperly discounted third-

party function reports by her friend, including one report from before Cailean’s

May 2020 surgery. The ALJ’s error in failing to consider whether Cailean was

disabled for the early portion of the alleged period may have also affected the

ALJ’s assessment of at least one of her friend’s reports. Therefore, we also

remand for the ALJ to reassess Cailean’s friend’s reports.

4. Cailean argues that the ALJ’s hypothetical question to the vocational

expert did not set out all her limitations because the ALJ improperly discounted the

evidence noted above. On remand, the ALJ may reconsider the vocational expert’s

testimony if necessary.

5. We decline Cailean’s request to apply the “credit-as-true” rule and

4 24-596 remand for an award of benefits. See Treichler v. Comm’r of Soc. Sec. Admin., 775

F.3d 1090, 1100-02 (9th Cir. 2014) (setting forth three-part “credit-as-true” rule

and noting that it is only satisfied in “rare circumstances”). Accordingly, we

remand Cailean’s disability application to the district court to remand to the agency

for further proceedings.

REVERSED AND REMANDED.

5 24-596