NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 10 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIK WILLIAM HOFFSCHNEIDER, No. 18-15504

Plaintiff-Appellant, D.C. No. 4:16-cv-07383-DMR

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Donna M. Ryu, Magistrate Judge, Presiding

Argued and Submitted May 12, 2022 San Francisco, California

Before: WALLACE, W. FLETCHER, and SANCHEZ, Circuit Judges. Partial Concurrence and Partial Dissent by Judge WALLACE

Erik Hoffschneider (“Hoffschneider”) appeals from the district court’s

summary judgment affirming the decision of the Acting Commissioner of Social

Security (“Commissioner”) to deny him disability insurance benefits under Title II

of the Social Security Act, 42 U.S.C. §§ 401–434. The Commissioner adopted the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Panel findings of an administrative law judge (“ALJ”) that Hoffschneider was not

disabled because he did not meet a listed impairment and had the residual

functional capacity to perform limited light work. We have jurisdiction under 28

U.S.C. § 1291, and we reverse and remand with instructions to remand to award

benefits.

I.

At step three of the disability determination, “[a]n ALJ must evaluate the

relevant evidence before concluding that a claimant’s impairments do not meet or

equal a listed impairment.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001); 20

C.F.R. § 404.1520(a)(4)(iii) (2013). 1 Where the record suggests a possibility the

claimant’s condition meets or equals a listed impairment, a boilerplate rejection at

step three is reversible error. See Lewis, 236 F.3d at 512; Marcia v. Sullivan, 900

F.2d 172, 175–76 (9th Cir. 1990); 42 U.S.C. § 405(b)(1). The ALJ dispatched this

step in one sentence. She found Listing 1.04 2 not met without addressing—at this

or any step—multiple medical opinions indicating that Hoffschneider suffered

from nerve root encroachment resulting in imperfect reflexes, limited mobility, and

disabling back pain. 3 By failing to evaluate this evidence, the ALJ erred.

1 All other code and statute citations are to the same year unless indicated. 2 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04. 3 Among the omissions, the ALJ failed to discuss the findings of Dr. Alan Hunstock, relevant findings of Dr. Ronald Botelho, and relevant findings of Dr. A. Shabi Khari. These omissions are discussed in Part II.

2

II.

At step five, the Commissioner bears the burden of showing that the

claimant can still perform other gainful activity in the national economy, given the

claimant’s residual functional capacity (“RFC”). See Lewis, 236 F.3d at 517; see

also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c). The ALJ must determine the

RFC “based on all of the relevant medical and other evidence.” 20 C.F.R.

§ 404.1545(a)(3).

Here, the ALJ erred in determining the RFC by “‘cherry-pick[ing]’ from . . .

mixed results.” See Garrison v. Colvin, 759 F.3d 995, 1017 n.23 (9th Cir. 2014)

(quoting Scott v. Astrue, 647 F.3d 734, 739–40 (7th Cir. 2011)). According to the

ALJ, treating physician Dr. Mary Berg reported that new pain medications were

“working.” In fact, Dr. Berg wrote that the medications “may be working OK”

with respect to Hoffschneider’s leg pain when supplemented by a nerve stimulator,

but not with respect to his lumbar pain. The ALJ omitted any mention of Dr.

Berg’s follow-up report stating that Hoffschneider’s “[p]ain [was] still not under

control.” The ALJ selectively cited the treatment records of Dr. Ronald Botelho

and Dr. Cary Wheeler to suggest that Hoffschneider’s pain was being managed

despite reports from these and other physicians that his pain remained

“[s]harp/stabbing, [b]urning, [and] [c]onstant,” often at “8 out of 10” or “9/10”

3 intensity. The ALJ erred by failing to provide “a detailed and thorough summary

of the facts and conflicting clinical evidence” before stating her interpretations and

conclusions. See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (emphasis

added).

The ALJ further erred by “reject[ing] . . . medical opinion[s] or assign[ing]

[them] little weight while doing nothing more than ignoring [them], asserting

without explanation that another medical opinion is more persuasive, or criticizing

[them] with boilerplate language.” Garrison, 759 F.3d at 1012–13. The ALJ gave

partial weight to Dr. Berg’s RFC-related opinions because, the ALJ stated, “there

is no supporting objective evidence or testing” for them. On the contrary, Dr. Berg

cited months of patient interactions, diagnostics, and an MRI review in support of

her opinion that Hoffschneider suffers mobility- and pain-related limitations, and

so cannot work.

Dr. Berg also reviewed the findings of examining specialist neurosurgeon

Dr. Alan Hunstock, whom the ALJ never cited. The ALJ thus erred by not

adopting Dr. Hunstock’s diagnosis and supporting findings that Hoffschneider’s

“[l]umbar mechanics were significantly limited to about 30% of normal in all

directions,” that his right-ankle reflex was absent, and that a “protruding disk” was

“encroach[ing] on [Hoffschneider’s] Sl nerve root.” The ALJ likewise failed to

adopt or explain her basis for rejecting Dr. A. Shabi Khari’s diagnosis that

4 Hoffschneider suffers “[c]hronic lower lumbar degeneration with radiculopathy

and persistent pain” and proposed limitation that Hoffschneider wear a back brace.

At oral argument, counsel for the Commissioner suggested that the ALJ had

instead credited the opinions of two consulting physicians who never examined

Hoffschneider. Even if that were true, the ALJ erred by failing to “provid[e]

specific and legitimate reasons that are supported by substantial evidence” as to

why she should credit the opinions of non-examining non-specialists above the

opinions of treating physicians and examining specialists. Garrison, 759 F.3d at

1012 (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008));

see also Reddick, 157 F.3d at 725; 20 C.F.R. § 404.1527(c)(2), (c)(5). The ALJ’s

sweeping conclusion that “all medical source opinions support finding the claimant

not disabled” reflects legal error and finds no support in the record.

III.

The ALJ must also incorporate a claimant’s credible symptom testimony

into the RFC determination. See 20 C.F.R. §§ 404.1545(a)(3), 404.1545(e),

404.1529. The ALJ found that Hoffschneider’s medical conditions could cause the

kinds of symptoms he reported and did not find him to be a malingerer.

Accordingly, the ALJ was required to give specific, clear, and convincing reasons

why the claimant should not be believed—or else was required to credit the

claimant’s reported severity of symptoms. See Garrison, 759 F.3d at 1014–15.

5 The ALJ’s reasons for discounting Hoffschneider’s testimony were neither

specific nor convincing. The ALJ’s explanation that “medications have been

relatively effective in controlling the claimant’s symptoms” is unsupported by

substantial evidence for the reasons discussed above. Moreover, “an ALJ does not

provide specific, clear, and convincing reasons for rejecting a claimant’s testimony

by simply reciting the medical evidence in support of his or her residual functional

capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir.

2015).

The ALJ’s explanation that “the claimant has admitted certain abilities”

fares no better. The ALJ did not clarify what she meant by Hoffschneider having

“certain abilities.” If she meant basic daily activities like taking short walks and

watching television or trying to return to work, as the Commissioner contends on

appeal, this is unconvincing. “This court has repeatedly asserted that the mere fact

that a plaintiff has carried on certain daily activities . . . does not in any way detract

from h[is] credibility as to h[is] overall disability.” Vertigan v. Halter, 260 F.3d

1044, 1050 (9th Cir. 2001); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1038–

40 (9th Cir. 2007) (holding that the fact a claimant has tried but failed to work does

not detract from his credibility).

6 Because the ALJ “cited no evidence of malingering and made no findings

that would allow us to conclude that [s]he rejected the testimony on permissible

grounds,” she erred. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004).

IV.

This case merits remand for benefits through our infrequently applied credit-

as-true rule. See Garrison, 759 F.3d at 1019–21; see also 42 U.S.C. § 405(g).

Under our precedent, an award is warranted if:

(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. Garrison, 759 F.3d at 1020.

Both sides acknowledge that the relevant medical record cannot be further

developed in this matter. That record included uncontradicted medical opinions as

well as claimant testimony establishing that Hoffschneider must walk during

breaks or lie down during the day to relieve his extreme pain. As discussed above,

the ALJ failed to provide legally sufficient reasons for rejecting those opinions and

testimony. Finally, the vocational expert has already testified that if Hoffschneider

were required to walk during breaks or lie down during the day, he would be

unable to perform substantial gainful activity.

7 Once the improperly discredited evidence is credited as true, the vocational

expert’s testimony forecloses a determination that Hoffschneider can work. See

Reddick, 157 F.3d at 729–30. Because no “serious doubt” remains that

Hoffschneider is disabled, there is nothing left to decide. See Leon v. Berryhill,

880 F.3d 1041, 1045 (9th Cir. 2017). We therefore reverse and remand with

instructions to remand to the Commissioner for a calculation and award of benefits.

REVERSED AND REMANDED.

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FILED

Erik Hoffschneider v. Kilolo Kijakazi, Case No. 18-15504 AUG 10 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

WALLACE, Circuit Judge, concurring in part and dissenting in part:

I agree that the administrative law judge erred by not addressing conflicting

medical opinions and clinical evidence, by not properly discussing relevant findings

from certain medical opinions, and by not adequately considering Hoffschneider’s

testimony. However, I disagree that this case should be remanded for an immediate

award of benefits. Therefore, I dissent from Part IV of the majority decision.

We remand for an award of benefits under the credit-as-true rule only in “rare

circumstances.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th

Cir. 2014). An automatic award of benefits in a disability benefits case is “a rare

and prophylactic exception to the ordinary remand rule when there is no question

that a finding of disability would be required if claimant’s testimony were accepted

as true.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). “Where there is

conflicting evidence, and not all essential factual issues have been resolved, a

remand for an award of benefits is inappropriate.” Treichler, 775 F.3d at 1101.

Here, the circumstances do not justify a departure from the well-established

ordinary remand rule because the record is not free from conflicting evidence or

ambiguities. Rather, the record raises questions as to the extent of Hoffschneider’s

impairment given the alleged inconsistencies between differing medical opinions and clinical evidence, Hoffschneider’s treatment history, and Hoffschneider’s

testimony and capacity to work.

Accordingly, I would remand to the administrative law judge for further

proceedings consistent with our decision, rather than remand for an immediate award

of benefits.