FILED

NOT FOR PUBLICATION JUN 30 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

TINA K. VAN SICKLE, No. 09-15509

Plaintiff - Appellant, DC No. CV 08-0052 HRH

v.

MEMORANDUM *

MICHAEL J. ASTRUE, Commissioner of the Social Security Administration,

Defendant - Appellee.

Appeal from the United States District Court for the District of Arizona H. Russel Holland, Senior District Judge, Presiding

Argued and Submitted April 16, 2010 San Francisco, California

Before: TASHIMA and THOMAS, Circuit Judges, and STAFFORD, Senior District Judge.**

Tina Van Sicµle appeals the district court's grant of summary judgment in

favor of the Commissioner of Social Security ('Commissioner') in Van Sicµle's

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable William Stafford, Senior United States District Judge for the Northern District of Florida, sitting by designation. action challenging denial of her application for disability insurance benefits and

supplemental security income under Titles II and ÈVI of the Social Security Act.

We have jurisdiction under 28 U.S.C. y 1291, and we reverse and remand for

calculation of benefits. Because the factual and procedural bacµground is familiar

to the parties, we do not recount it here.

We review de novo the district court's order upholding denial of social

security benefits. Howard ex rel Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir.

2003). We uphold the Commissioner's disability determination unless it contains

legal error or is not supported by substantial evidence. Orn v. Astrue, 495 F.3d

625, 630 (9th Cir. 2007).

Van Sicµle contends that the administrative law judge's ('ALJ') residual

functional capacity ('RFC') finding was inconsistent with the opinions of

examining psychologist Brent Geary, Ph.D., and non-examining reviewing state

medical consultant Jocelyn Fuller, Ph.D. She also contends that the ALJ failed to

give sufficient reasons for rejecting those opinions. We agree.

Both Dr. Geary and Dr. Fuller reported moderate mental limitations, and Dr.

Fuller opined that Van Sicµle could worµ 'in a low stress setting.' The ALJ found

that the medical opinions of the 'consulting physicians and state agency medical

consultants' were 'highly probative.' Indeed, the opinions of the two doctors were

-2- consistent with each other, were uncontroverted by other sources, and comprised

the sole medical opinion evidence regarding Van Sicµle's mental limitations. The

ALJ, however, neither included these limitations in his RFC nor explained why he

rejected them, as he was required to do. See Widmarµ v. Barnhart, 454 F.3d 1063,

1066 (9th Cir. 2006) (stating that the Commissioner must provide clear and

convincing reasons for rejecting the uncontradicted opinion of an examining doctor

and specific and legitimate reasons that are supported by substantial evidence in

the record for rejecting the opinion of the examining doctor if it is contradicted by

another doctor) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)).1

Moreover, the ALJ only briefly summarized Dr. Geary's opinion and did not

even mention Dr. Fuller's opinion. Although the ALJ 'need not discuss all

evidence presented to [him,]' he 'must explain why 'significant probative

evidence has been rejected.'' Vincent v. Hecµler, 739 F.2d 1393, 1394-95 (9th Cir.

1 The dissent taµes the position that the ALJ's RFC was 'based on - and consistent with - the assessments of Drs. Fuller and Geary,' noting that the ALJ recognized 'mild to moderate' mental limitations. Diss. at 1, 2. The ALJ's RFC, however, did not include these moderate limitations or the 'low stress' requirement Dr. Fuller identified, and thus was not consistent with the doctors' assessments. To the extent the dissent is correct that the ALJ accepted the doctors' findings, the ALJ was required to include them in his RFC. See Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (holding that hypothetical questions the ALJ poses to the vocational expert must include all of the claimant's limitations and restrictions) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

-3- 1984) (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)) (emphasis in

original); see also Social Security Ruling 96-6p, 1996 WL 374180, *2 (S.S.A.

1996) (stating that ALJ 'may not ignore' the opinions of state agency medical

consultants 'and must explain the weight given to the opinions in their decisions').

Accordingly, we conclude the ALJ erred in failing to include in his RFC the

limitations identified by Dr. Geary and Dr. Fuller.2

We also conclude that remand for calculation of benefits is appropriate

because the vocational expert's testimony establishes that had the limitations

identified by Dr. Geary and Dr. Fuller been adopted, a hypothetical individual with

Van Sicµle's RFC would not have been capable of performing any of the jobs the

ALJ identified at Step 5. See Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)

(holding that remand for an award of benefits is appropriate 'where (1) the ALJ

has failed to provide legally sufficient reasons for rejecting [the] evidence, (2)

there are no outstanding issues that must be resolved before a determination of

disability can be made, and (3) it is clear from the record that the ALJ would be

required to find the claimant disabled were [the] evidence credited').

2 Van Sicµle also contends that the ALJ erred by failing to include in his RFC the limitations that result from her headaches. Because we conclude that the ALJ committed reversible error with respect to his treatment of the opinions of Dr. Geary and Dr. Fuller, we need not reach this issue.

-4- We therefore reverse the judgment of the district court and remand with

directions that the district court reverse the Commissioner's denial of benefits and

remand for the calculation and payment of benefits.

REVERSED and REMANDED.

-5-

FILED

JUN 30of 3 Page 1 2010

Van Sicµle v. Astrue, No. 09-15509 MOLLY C. DWYER, CLERK

U.S . CO UR T OF AP PE A LS

STAFFORD, District Judge, dissenting.

Because I cannot agree that the district court erred in affirming the ALJùs decision

to deny benefits, I must respectfully dissent. The district court determined--I believe

correctly--that the ALJ, in fact, þconsidered the opinions of Drs. Geary and Fuller and

adequately accounted for the limitations they found.þ

While the ALJ was required to taµe the opinions of Drs. Geary and Fuller into

account when maµing his RFC determination, he was not required to include in his RFC

every express limitation found by Drs. Geary and Fuller. Vertigan v. Halter, 260 F.3d

1044, 1049 (9th Cir. 2001) (noting that it is the ALJùs responsibililty, not the physicianùs,

to determine residual functional capacity). He was also not required to discuss every

piece of evidence from those doctors. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th

Cir. 2003).

Here, while noting that Van Sicµle þtaµes no psychotropic medication and she

does not receive any mental health counseling,þ the ALJ found that Van Sicµleùs mental

limitations þare, at worst, mild to moderate in severity.þ The ALJùs findings--although

brief--are amply supported by substantial record evidence. Indeed, the ALJùs þmild to

moderateþ severity rating comes directly from the functional-limitations-assessments

performed by Drs. Fuller and Geary.

Dr. Fuller completed two assessments of Van Sicµleùs functional limitations. In a

document entitled þPsychiatric Review Technique,þ dated 8/16/05, Dr. Fuller rated Van

Sicµleùs functional limitations on a five-level scale: None, Mild, Moderate, Marµed, and

Extreme. As to þRestriction of Activities of Daily Living,þ Dr. Fuller opined that Van Page 2 of 3

Sicµle had no limitations. As to þDifficulties in Maintaining Social Functioningþ and

þDifficulties in Maintaining Concentration, Persistence, or Pace,þ Dr. Fuller opined that

Van Sicµle had mild limitations as to each. In an undated þMental Residual Functional

Capacity Assessment,þ Dr. Fuller asserted that Van Sicµle was moderately limited as to

(1) her ability to perform activities within a schedule and maintain regular attendance,

(2) her ability to complete a normal worµday and worµweeµ without interruptions, and

(3) her ability to interact appropriately with the general public. He said that, in all other

areas of functioning, Van Sicµle has þno evidence of limitations.þ Dr. Fullerùs ultimate

conclusion was that Van Sicµle þcan worµ in a simple, unsµilled competitive job in a low

stress setting that is away from the general public.þ

Dr. Gearyùs assessment was virtually the same as Dr. Fullerùs. Liµe Dr. Fuller,

Dr. Geary opined that Van Sicµle was moderately limited but not precluded as to (1) her

ability to perform activities within a schedule and maintain regular attendance, (2) her

ability to complete a normal worµday and worµweeµ without interruptions, and (3) her

ability to interact appropriately with the general public. Dr. Geary found that, in all other

areas of functioning, Van Sicµle evidenced no limitations. Dr. Gearyùs ultimate

conclusion was that þ[Van Sicµle] does seem capable of other worµ-related activities.

[She] would very much benefit from some type of training or occupational placement.þ

At Step 5, the ALJ determined that Van Sicµle þhas the residual functional

capacity to perform at least the exertional requirements of light, unsµilled worµ with the

following restrictions: no worµ that requires acute or fine hearing and no worµ that

involves communicating with the public or co-worµers to perform the necessary tasµs of

the job.þ Liµe the district court, I believe that the ALJ fashioned an appropriate RFC Page 3 of 3

based on--and consistent with--the assessments of Drs. Fuller and Geary (both of

whom opined that Van Sicµle was capable of performing some light worµ), then posed a

proper hypothetical to the VE based on the RFC so fashioned.

This is not a case where the ALJ rejected þsignificant probative evidence.þ The

ALJ expressly stated that he found the medical opinions of Drs. Geary and Fuller to be

þhighly probative;þ and, while he did not adopt verbatim the limitations identified by the

doctors, his RFC captured the essence of the medical evidence. Under the

circumstances, we should defer to the ALJùs decision. The district court, in turn, was

correct in upholding the Commissioner's denial of benefits to a 46-year-old woman who

taµes no psychotropic medication, who has not sought and does not receive any mental

health counseling, and whose mental limitations þare, at worst, mild to moderate in

severity.þ I would affirm.