Roberto Gama v. CAROLYN W. COLVIN, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO GAMA,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
No. 13-57007
D.C. No. 2:11-cv-10377-MMM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted July 30, 2015**
Before: LEAVY, GRABER, and OWENS, Circuit Judges.
Roberto Gama appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of his application for disability insurance
benefits under Title II of the Social Security Act. We have jurisdiction under 28
FILED
AUG 03 2015
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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U.S.C. § 1291. We affirm in part, reverse in part, and remand.
The administrative law judge (“ALJ”) properly concluded that Gama had
severe impairments, but that Gama did not meet his burden of showing that his
impairments, alone or in combination, equal or meet one of the listed impairments.
See Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999).
However, the ALJ failed to provide specific, clear and convincing reasons
for finding Gama not fully credible. See Orn v. Astrue, 495 F.3d 625, 635 (9th Cir.
2007) (ALJ must provide “clear and convincing” reasons for discrediting a
claimant absent “affirmative evidence” of malingering) (internal quotation marks
omitted)); Lingenfelter v. Astrue, 504 F.3d 1028, 1035-37 (9th Cir. 2007). To the
extent the ALJ concluded that Gama’s testimony regarding his daily activities was
not credible based on a non-treating physician’s report and summary of sub rosa
videos, the ALJ erred because the doctor’s report and video footage predate
Gama’s amended disability onset date. They also predate surgery on Gama’s left
shoulder and right knee, as well as Gama’s treating physician’s opinion that
Gama’s symptoms had “slightly worsened.” The error was not harmless because
the only remaining reason to discount Gama’s credibility was a lack of objective
medical evidence. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055
(9th Cir. 2006). Although an ALJ may consider a “lack of medical evidence” as a
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factor, it “cannot form the sole basis for discounting pain testimony.” Burch v.
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Thus, on the record before us, we do
not sustain the negative credibility assessment.
As a result of the ALJ’s adverse credibility finding, the ALJ excluded from
Gama’s residual functional capacity (“RFC”) Gama’s testimony and his treating
physicians’ assessment that Gama had bad days at least once a week that precluded
him from leaving his home. The ALJ likewise rejected Gama’s counsel’s
hypothetical question to the vocational expert to the extent that it rested on Gama’s
testimony. As a result, the ALJ’s RFC determination and associated hypothetical
questions posed to the vocational expert were not supported by substantial
evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
We therefore reverse and remand to the district court with instructions to
remand to the Social Security Administration for further proceedings. Because of
this remand we need not reach Gama’s remaining arguments on appeal. On
remand, the ALJ should reassess Gama’s testimony regarding his limitations
caused by his pain.
Gama is awarded costs on appeal.
AFFIRMED in part; REVERSED in part; and REMANDED.
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