NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

BARBARA WEBBER, 

Plaintiff-Appellant,

 v.

CAROLYN W. COLVIN, Acting

Commissioner, Social Security

Administration, 

Defendant-Appellee.

No. 14-35312

D.C. No. 2:13-cv-00890-RSL

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

Argued and Submitted October 5, 2016

Seattle, Washington

Before: W. FLETCHER, FISHER, and N.R. SMITH, Circuit Judges.

FILED

OCT 26 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
Barbara Webber appeals from a denial of supplemental security income

under Title XVI of the Social Security Act.1 She alleges that the Administrative

Law Judge (“ALJ”) improperly discounted testimony from her and her examiners,

which then allowed the ALJ to pose to the vocational expert an incomplete

hypothetical that omitted her reports of daily crying. Because the ALJ’s errors in

finding Ms. Webber not credible raise serious doubts as to whether there was

substantial evidence for denial of benefits, we reverse the district court and remand

to the ALJ. 

We must uphold the Social Security Administration's disability

determination unless it contains legal error or is not supported by substantial

evidence. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006);

42 U.S.C. §§ 405(g), 1383(c)(3). If a claimant has produced objective medical

evidence of an impairment, and if the ALJ did not find “affirmative evidence” of

malingering, “the ALJ can reject the claimant’s testimony about the severity of her

1 Appellant's excerpts of record were filed under seal in this Court in

2014 pursuant to a notice of filing under seal rather than a motion for permission to

seal, based solely on the fact that the documents had been sealed in the district

court pursuant to local rule. As of April 4, 2016, Interim Ninth Circuit Rule 27-

13(a) provides that documents in social security cases, including administrative

records, are not filed under seal in this Court, though they are otherwise restricted

pursuant to Fed. R. App. P. 25(a)(5) and Circuit Rule 5.2(c). To the extent that this

disposition addresses matters contained in the previously sealed excerpts of record,

we hereby unseal the excerpts with respect to that information.

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symptoms only by offering specific, clear, and convincing reasons for doing so.”

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). 

Many of the ALJ’s factual and legal bases for discrediting Ms. Webber’s

testimony and evidence were in error: 

1. The ALJ asserted that Ms. Webber had only begun complaining of

depression “a couple of weeks before she filed her SSI application” in September

2010. However, the record contains a depression diagnosis in November 2009.

2. The ALJ found that Ms. Webber did not indicate any problems with

memory in her first and second function reports. However, Ms. Webber indicated

in the first function report that she “sometimes” needed help or reminders to take

medicine and stated in the second report that she needed “special reminders to take

care of personal needs and grooming” and “reminders taking medicine.”

3. The ALJ found inconsistency between Ms. Webber’s testimony that she

did not shop or do laundry and statements in her function reports that “she did

both.” But any change in these capacities between the function reports and the

hearing can be explained by a deteriorating condition over time. Moreover, what

Ms. Webber actually said in the first function report was that “she could clean and

wash clothes when “able”—not that she did so regularly.

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4. The ALJ found inconsistency between Ms. Webber’s testimony that she

did not dress her grandchildren for school and her earlier statement that she did so. 

However, Ms. Webber testified at her hearing that she did not help her

grandchildren get ready for school “any more” because at the ages of five and six,

they could “pretty much dress themselves.”

5. The ALJ cited Ms. Webber’s statements about having a very busy

weekend as evidence that “claimant is more active than she portrayed.” However,

daily activities may only “be grounds for an adverse credibility finding if a

claimant is able to spend a substantial part of his day engaged in pursuits involving

the performance of physical functions that are transferable to a work setting.” Orn

v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (internal citations and quotation marks

omitted). The record shows that Ms. Webber spent her days primarily watching

TV, reading, and visiting the doctor. Our case law would not permit discrediting a

claimant on these facts. See id. (stating that “reading, watching television, and

coloring in coloring books are activities that are so undemanding that they cannot

be said to bear a meaningful relationship to the activities of the workplace”);

Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) (holding that a

claimant’s ability to “go grocery shopping with assistance, walk approximately an

hour in the malls, get together with her friends, play cards, swim, watch television,

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and read . . . does not in any way detract from her credibility as to her overall

disability”). 

6. The ALJ found inconsistencies in Ms. Webber’s reports of suicidal

ideation. But in each cited instance, Ms. Webber was only reporting her mental

state at different times. She told Dr. Widlan that she once had suicidal ideations

but did not at the time. She told Neighborcare a few months later that she was

having thoughts of suicide. Several months after that, she reported to Dr. Parker

that she did not have suicidal ideations at present. Because the reports dealt with

different times, they were not inconsistent. 

Ms. Webber concedes that she was inconsistent in her reports to her

healthcare providers concerning her marijuana use. We have said that “conflicting

or inconsistent testimony concerning alcohol use can contribute to an adverse

credibility finding.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir.

2006); see also Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). However,

in this case, the ALJ did not use inconsistent reports of drug use as a basis for

finding Ms. Webber generally incredible, but instead used the failure to report

marijuana use as a basis for discrediting Dr. Widlan’s report. Because we review

only the reasons provided by the ALJ and may not affirm the ALJ based on a

ground upon which she did not rely, see Connett v. Barnhart, 340 F.3d 871, 874

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(9th Cir. 2003), we cannot affirm the ALJ’s adverse credibility finding based on this

inconsistency. 

The errors above warrant remand because Ms. Webber’s case turned upon the

ALJ’s adverse credibility finding. Absent this finding, the ALJ could not have

omitted Ms. Webber’s reported crying spells from her hypothetical. See Russell v.

Sullivan, 930 F.2d 1443, 1445 (9th Cir. 1991) (“Hypothetical questions posed to a

vocational expert must set out all the limitations and restrictions of the particular

claimant, including pain and an inability to engage in certain activities.”). Because

the vocational expert testified that someone who routinely but unpredictably cried

several times a day would face prohibitive difficulty maintaining employment, the

ALJ would have had to award benefits had she found the claimant credible. 

On remand, the ALJ must render a new credibility finding in conformity with

Social Security Ruling 16-3p (effective March 28, 2016), which states that “[i]n

evaluating an individual’s symptoms, our adjudicators will not assess an

individual’s overall character or truthfulness in the manner typically used during an

adversarial court litigation.” The ALJ should reconsider, as appropriate, the weight

assigned to certain third-party medical opinions that had earlier been discounted due

to Ms. Webber’s perceived lack of credibility.

REVERSED and REMANDED.

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