FILED

NOT FOR PUBLICATION

DEC 02 2015

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHIP E. LEONARD, No. 13-16382

Plaintiff-Appellant, D.C. No. 3:12-cv-08031-FJM

v.

MEMORANDUM*

CAROLYN W. COLVIN, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Frederick J. Martone, Senior District Judge, Presiding

Argued and Submitted October 21, 2015 San Francisco, California

Before: BLACK**, CLIFTON and N.R. SMITH, Circuit Judges.

Chip E. Leonard appeals the district court’s order affirming the

administrative law judge’s (ALJ) denial of disability benefits. We affirm in part,

and reverse and remand for further proceedings.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Susan H. Black, Senior Circuit Judge for the U.S. Court of Appeals for the Eleventh Circuit, sitting by designation. We have jurisdiction pursuant to 28 U.S.C. § 1291. “We review de novo a

district court’s order upholding the ALJ’s decision.” Hiler v. Astrue, 687 F.3d

1208, 1211 (9th Cir. 2012).

Leonard asserts the ALJ failed to properly evaluate the credibility of his

symptom testimony. The ALJ offered specific, clear, and convincing reasons for

rejecting Leonard’s testimony regarding the severity of his symptoms, including

evidence that Leonard’s symptoms improved after his surgeries and the lack of

evidence of post-surgery treatment. See Lingenfelter v. Astrue, 504 F.3d 1028,

1035–36 (9th Cir. 2007) (stating that if a claimant has objective medical evidence

of an underlying impairment that could reasonably produce the symptoms and

there is no evidence of malingering, an ALJ can reject a claimant’s testimony about

the severity of symptoms only by offering specific, clear, and convincing reasons).

We affirm the district court’s holding that the ALJ’s credibility determination is

supported by specific, clear, and convincing reasons.

Leonard also challenges the ALJ’s determination of his residual functional

capacity (RFC), specifically the ALJ’s failure to incorporate a limitation for

Leonard’s need to make frequent trips to the bathroom. “[A]n RFC that fails to

take into account a claimant’s limitations is defective.” Valentine v. Comm’r Soc.

Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009).

-2- “In determining a claimant’s RFC, an ALJ must consider all relevant

evidence in the record, including . . . medical records, lay evidence, and ‘the effects

of symptoms . . . that are reasonably attributed to a medically determinable

impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)

(quoting SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996)). Even disregarding

Leonard’s statements and testimony that the ALJ found overstated the intensity,

persistence, and limiting effects of Leonard’s symptoms, the state agency

physician’s RFC assessment supports that Leonard has a need for frequent trips to

the bathroom, and Dr. Robert Campbell’s February 16, 2009, treatment note states

Leonard has about five to seven bowel movements daily.

The district court erred in determining that all of Leonard’s limitations were

included in the ALJ’s RFC finding. In particular, the ALJ’s RFC finding includes

a limitation that precludes more than occasional use of ladders, ropes, and

scaffolds. The Commissioner acknowledges that the reason for, and the symptom

that justifies, the ladders, ropes, and scaffolds limitation is Leonard’s need for

frequent trips to the bathroom. The ALJ did not cite evidence or any other basis to

conclude that the limitation included within the RFC finding was sufficient to

address Leonard’s recognized need. The limitation for Leonard’s need for frequent

trips to the bathroom may not be fully covered by language that solely limits

-3- Leonard’s work on ladders, ropes, and scaffolds. We reverse the district court’s

determination that this limitation was included in the ALJ’s RFC assessment.

Because the ALJ’s RFC was defective, the ALJ’s use of the medical-

vocational guidelines (grids) to determine that Leonard could perform a significant

number of jobs was error. The grids did not take into account Leonard’s limitation

that he would need frequent trips to the bathroom during the day. See Tackett v.

Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) (explaining that the grids are

appropriately used if “they completely and accurately represent a claimant’s

limitations”).

It is not “clear from the record that the ALJ would be required to find the

claimant disabled.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). The

defective RFC and the erroneous use of the grids leave open the question whether

Leonard is capable of performing “any other kind of substantial gainful work

which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). We therefore

remand this case to the district court with directions to remand this case to the

Commissioner for proceedings consistent with this memorandum disposition.

Each party to bear its own costs.

AFFIRMED in part, REVERSED and REMANDED in part.

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FILED

Leonard v. Colvin, 13-16382

DEC 02 2015

N.R. Smith, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

The majority affords the ALJ appropriate deference in affirming the ALJ’s

credibility findings, but substitutes its own judgment for the ALJ in deciding

Leonard’s RFC and whether the Medical-Vocational Guidelines (grids) are

applicable. I dissent because the ALJ’s decision with regard to the latter two issues

is supported by substantial evidence.

We must affirm an ALJ’s factual findings if they are supported by

substantial evidence and free of legal error. 42 U.S.C. § 405(g); Tackett v. Apfel,

180 F.3d 1094, 1097 (9th Cir. 1999). The substantial evidence “standard is

‘extremely deferential’ and a reviewing court must uphold the agency’s findings

‘unless the evidence presented would compel a reasonable finder of fact to reach a

contrary result.’” Gebhart v. Sec. & Exch. Comm’n, 595 F.3d 1034, 1043 (9th Cir.

2010) (quoting Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.), amended by

339 F.3d 1012 (9th Cir. 2003)). “If the evidence is susceptible to more than one

rational interpretation, we may not substitute our judgment for that of the agency.”

Id.

1. To establish a claimant’s RFC, an ALJ must consider “all of the relevant

medical and other evidence,” including descriptions and observations of the

-1- claimant’s limitations that are not severe. 20 C.F.R. § 404.1545(a)(3). The ALJ

considered the relevant evidence and determined Leonard’s impairments were

adequately represented by an RFC for light work with postural limitations that

preclude “more than occasional use of ladders, ropes and scaffolds.” The ALJ

supported her finding with direct references to medical evidence in the record.

Specifically, the ALJ noted that Leonard had received surgery, the surgery was

successful, and after the surgery Leonard’s bowel movements were reduced to five

to seven per day and he was able to defer them for at least ten minutes. The ALJ

also noted that Leonard’s medical records showed his condition was improving

after surgery and that none of Leonard’s doctors had placed restrictions on his

physical activities. Finally, the ALJ based the RFC on an RFC assessment

conducted by one doctor and affirmed by another, after each had reviewed

Leonard’s medical records.

The majority asserts the ALJ erred by not including in the RFC Leonard’s

need to make frequent bathroom trips. However, the ALJ found Leonard’s claims

regarding the severity of his urges to use the bathroom not credible, and the

majority held the ALJ’s credibility finding was supported by substantial evidence.

Thus, the ALJ was not required to accept as true Leonard’s claims about the

severity of his impairments in establishing an RFC. The record contains no medical

-2- evidence that would compel us to reject the ALJ’s RFC in favor of one that

provided additional limitations for Leonard’s alleged impairments.

2. The ALJ’s use of the grids was not legal error and was supported by

substantial evidence. To determine whether a claimant can perform work that

exists in “significant numbers in the national economy,” an ALJ may either (1) call

a vocational expert (VE) to testify as to the claimant’s qualifications for various

jobs or (2) use the grids. Tackett, 180 F.3d at 1100 (internal quotation marks

omitted). In either situation, the ALJ must rely on the RFC for the determination.

The grids are only inappropriate if they cannot account for the limitations in the

RFC, such that the claimant cannot “perform the full range of jobs in a given

category.” Id. at 1101. “[T]he fact that a non-exertional limitation is alleged does

not automatically preclude application of the grids. The ALJ should first determine

if a claimant’s non-exertional limitations significantly limit the range of work

permitted by his exertional limits.” Id. at 1102. The ALJ reasonably determined

that Leonard’s need to use the bathroom would not “significantly limit the range of

work permitted by [the RFC]” and properly applied the grids. Id.

The majority asserts that the ALJ’s use of the grids was inappropriate,

because the grids did not account for Leonard’s need to use the bathroom

frequently. According to the majority, the ALJ admitted Leonard was limited by

-3- his need to use the bathroom when she included postural limitations in the RFC for

that reason. The majority avers these postural limitations were inadequate to

account for Leonard’s impairment. I disagree. Although the evidence in the record

may be “susceptible to more than one rational interpretation,” it does support the

ALJ’s determination that Leonard only required postural limitations precluding use

of areas that are hard to access. Thus, the majority errs by “substitut[ing its]

judgment for that of the [ALJ].” See Gebhart, 595 F.3d at 1043.

-4-