NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVE W. CARGILL, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner of Social Security, 

Defendant-Appellee.

No. 17-17170 

D.C. No. 2:16-cv-00949-KJN 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Kendall J. Newman, Magistrate Judge, Presiding

Argued and Submitted January 18, 2019

San Francisco, California

Before: WALLACE, CLIFTON, and FRIEDLAND, Circuit Judges.

Steve Cargill (“Cargill”) appeals from the district court’s order affirming the 

denial by an administrative law judge (“ALJ”) of his application for Social 

Security disability benefits. We reverse and remand for further proceedings.

First, the ALJ committed legal error in determining whether Cargill met 

Listings 1.02A or 1.03. See 20 C.F.R., pt. 404, subpt. P, app. 1, §§ 1.02A, 1.03

 

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

except as provided by Ninth Circuit Rule 36-3.

FILED

MAR 5 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

(2018). Both listings require that the claimant demonstrate an inability to ambulate 

effectively, which the regulations define as an impairment that “interferes very 

seriously with [his] ability to independently initiate, sustain, or complete 

activities.” Id. at § 1.00(B)(2)(b)(1). One example of the inability to ambulate 

effectively is the “inability to walk without the use of a walker, two crutches or 

two canes,” although the use of only one cane or crutch does not “automatically 

exclude all gainful activity.” Revised Medical Criteria for Determination of 

Disability, Musculoskeletal System and Related Criteria, 66 Fed. Reg. 58,010, 

58,013 (Nov. 19, 2001).

The ALJ’s complete treatment of Listings 1.02A and 1.03 was two 

sentences: “The claimant’s right ankle injury has not resulted in an [in]ability to 

ambulate effectively as required by listings 1.02 and 1.03. The claimant requires 

only a single point cane.” Under the regulations, that was error because Cargill’s 

use of one cane could not independently disqualify him from meeting a listing. Id. 

(“[I]f someone who uses one cane or crutch is otherwise unable to effectively 

ambulate, the impairment(s) might still meet or equal a listing”). 

Having therefore disregarded the reference to Cargill’s use of a single-point 

cane as legally insufficient, all that we are left with of the ALJ’s analysis on this 

point is one sentence concluding that the injury “has not resulted in an [in]ability to 

ambulate effectively.” Our case law requires more. “A boilerplate finding is 
3 

insufficient to support a conclusion that a claimant's impairment does not [meet a 

listed impairment].” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Although 

the dissent may be correct that the ALJ’s inference was reasonable, we are unable 

to so conclude based on a single, conclusory statement. See Brown-Hunter v. 

Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“[W]e still demand that the agency set 

forth the reasoning behind its decisions in a way that allows for meaningful 

review.”); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 

2014) (“[W]e cannot substitute our conclusions for the ALJ’s, or speculate as to 

the grounds for the ALJ's conclusions. Although the ALJ’s analysis need not be 

extensive, the ALJ must provide some reasoning in order for us to meaningfully 

determine whether the ALJ’s conclusions were supported by substantial evidence.” 

(citation omitted)).

Second, the ALJ improperly discounted the opinion of Dr. George Lin in 

crafting Cargill’s residual functional capacity (“RFC”) at steps four and five.1 

“Generally, a treating physician’s opinion carries more weight than an examining 

physician’s, and an examining physician’s opinion carries more weight than a 

reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 

 

1

 Dr. Paul Sandhu appeared to vacillate in his opinion on whether Cargill 

required a cane at all times or only when walking for long periods or on uneven 

terrain. In light of these internal inconsistencies, we conclude that the ALJ did not 

omit from the RFC any limitations that were clearly communicated in Dr. 

Sandhu’s opinion. 
4 

2001). When faced with physicians’ contradicting opinions, the ALJ must give 

specific and legitimate reasons supported by substantial record evidence to reject a 

treating or examining physician’s opinion. Batson v. Comm’r of Soc. Sec. Admin., 

359 F.3d 1190, 1195 (9th Cir. 2004); Reddick v. Chater, 157 F.3d 715, 725 (9th 

Cir. 1998).

Here, the ALJ gave “great weight to [treating physician] Dr. Lin’s opinion 

that the claimant could stand/walk two hours in an eight-hour workday” but “little 

weight to Dr. Lin’s opinion regarding the claimant’s nonexertional capabilities, 

including the claimant’s need to take a break every hour.” In doing so, the ALJ did 

not expressly explain why he was discounting Dr. Lin’s conclusions that Cargill 

could only sit for four hours and would need to elevate his legs for 20% of the day. 

The Social Security Administration (“Agency”) argues that the ALJ did provide a 

specific and legitimate reason for dismissing Dr. Lin’s conclusions: the ALJ noted 

that Dr. Lin’s treatment records and prescribed medications demonstrated a lack of 

awareness that Cargill consumed alcohol, which was documented in other 

physicians’ records. Even if the Agency is correct that such a reason could 

logically support the ALJ’s dismissal of Dr. Lin’s non-exertional findings, a 

treating physician’s lack of awareness that the patient consumes alcohol is not a 

logical basis to conclude that the physician’s assessment of the patient’s physical 
5 

functioning is also suspect.2 

Given that our “precedents have been cautious about when harmless error 

should be found” so as not to “substitute our own discretion for that of the 

agency,” we cannot conclude that the errors here were harmless.3 See Brown-

 

2

 The dissent offers two additional arguments for discounting Dr. Lin’s 

opinion: (1) that Dr. Lin’s practice group relied on each other’s opinions without 

independent examination, and (2) that other physicians who reviewed the record as 

a whole gave conclusions more consistent with the record. But neither serves as a 

specific and legitimate reason for discounting Dr. Lin’s opinion that Cargill could 

sit for four hours. 

As to the dissent’s first basis, the ALJ may have fairly discounted the 

opinions of Dr. Lin’s colleagues because they did not seem to make independent 

examinations of Cargill’s ankle. But that was not a reason to dismiss the findings 

of Dr. Lin, a physician who had examined Cargill on six occasions. Addressing 

the dissent’s second basis, the ALJ gave great weight to one physician who 

contradicted Dr. Lin, Dr. Talcherkar, because of Dr. Talcherkar’s familiarity with 

the disability program and because the ALJ concluded that his opinions were based 

on and more consistent with the whole record. But Dr. Talcherkar did not examine 

Cargill—accordingly, the ALJ was still required to give specific, legitimate 

reasons for discounting Dr. Lin’s opinion beyond Dr. Talcherkar’s opinion. See 

Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (“Where . . . a nontreating 

source’s opinion contradicts that of the treating physician but is not based on 

independent clinical findings . . . the opinion of the treating physician may be 

rejected only if the ALJ gives specific, legitimate reasons for doing so that are 

based on substantial evidence in the record.”). The ALJ did not do so.

The ALJ’s assignment of “great weight’ to Dr. Talcherkar’s opinion raises 

additional concerns. The ALJ adopted Dr. Talcherkar’s conclusion that Cargill 

could sit for six hours per day but, without explanation, did not adopt Dr. 

Talcherkar’s other opinions. Those rejected opinions of Dr. Talcherkar directly 

contradict the findings of Dr. Sandhu, Dr. Lin, Dr. Kisilewicz, and Dr. Mehta, 

calling into question whether Dr. Talcherkar’s opinions should have received any 

weight at all.

3

 Cargill also alleges that the ALJ erred by failing to meaningfully consider 

the limitations posed by his sleep impairment in crafting the RFC. It is true that 

the ALJ did not expound on Cargill’s insomnia at step five after dismissing it as a 
6 

Hunter, 806 F.3d at 492 (first quoting Marsh v. Colvin, 792 F.3d 1170, 1173 (9th 

Cir. 2015)).

Even though we hold that the ALJ erred in discounting Dr. Lin’s opinion, we 

do not believe that “it is clear from the administrative record that the ALJ would be 

required to award benefits” if the opinion was credited as true, so we decline 

Cargill’s request that we remand for an award of benefits. See Garrison v. Colvin, 

759 F.3d 995, 1019 (9th Cir. 2014) (quoting Varney v. Sec’y of Health & Human 

Servs., 859 F.2d 1396, 1401 (9th Cir. 1988)).

REVERSED and REMANDED for further proceedings consistent with this 

opinion.

 

non-severe impairment at step two, even though step five requires the Agency to 

“consider all of [the claimant’s] medically determinable impairments of which [the 

Agency is] aware, including [the claimant’s] medically determinable impairments 

that are not ‘severe.’” 20 C.F.R. § 404.1545(a)(2). But there was ample evidence 

in the record that could have provided alternative explanations for Cargill’s 

daytime drowsiness, including his alcohol use and the side effects of his prescribed 

medications. Because Cargill’s arguments have failed to clearly advance a theory 

as to why a more thorough exploration of his insomnia at step five would have 

affected the ultimate disability determination, we hold that any error in failing to 

fully account for his insomnia at step five was harmless. 
1

Cargill v. Berryhill, No. 17-17170

WALLACE, Circuit Judge, dissenting:

I respectfully dissent from the majority’s decision to reverse and remand. 

We apply a deferential “substantial evidence” standard of review to an ALJ’s 

disability decision, and we begin with a presumption of regularity. Bayliss v. 

Barnhart, 427 F.3d 1211, 1214-15 & n.1 (9th Cir. 2005). Under that standard, it is 

not our role to reverse if we would have decided the case differently, but only to 

discern if the record supports the ALJ’s decision as “one rational interpretation” of 

the evidence. Id. at 1214 n.1. Because I conclude that the record rationally supports 

the ALJ’s findings, I would affirm the district court.

The majority identifies two errors that it concludes constitute error on the 

part of the ALJ. However, neither of these are reversible.

First, the majority holds that the ALJ committed legal error by denying 

Cargill’s claim at step three because he only uses one cane. I agree with the 

majority’s view of the law and that it would be error for the ALJ to deny Cargill’s 

claim on that basis. However, the ALJ’s opinion does not compel that conclusion. 

An equally reasonable inference would be that the ALJ concluded that Cargill 

could ambulate effectively, and included the fact about the single point cane as

mere support for that conclusion. For instance, the ALJ’s conclusions as to other 

listings are similarly conclusory.

FILED

MAR 5 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

The majority disagrees, but not because it thinks the ALJ’s written opinion 

compels the conclusion that it applied the wrong legal standard to Cargill’s claim. 

Instead, the majority concludes that the ALJ was required to say more than the 

“injury has not resulted in an [in]ability to ambulate effectively.” But what more is 

there to say? Under the relevant Listings, there is no per se disability at step three 

when the claimant can ambulate effectively, so this finding alone was sufficient to 

foreclose Cargill’s claim. It is thus not true that the ALJ’s step three decision was 

“a single conclusory statement,” as the majority suggests. See Brown-Hunter v. 

Colvin, 806 F.3d 487, 492 (9th Cir. 2015). Instead, the ALJ found, and substantial 

evidence in the record supports, that Cargill could ambulate effectively. That was 

enough.

Second, the majority holds that the ALJ failed to give specific and legitimate 

reasons for discounting Dr. Lin’s opinion. Once more, I agree that this is the 

correct legal standard. But the majority gives too little weight to the ALJ’s stated 

reasons for discounting Dr. Lin’s opinion, which were not only that Dr. Lin was 

unaware of Cargill’s alcohol abuse, but also that Dr. Lin’s practice group relied on 

each other’s opinions without independent examination, the practice group did not 

have the opportunity to review all of the treatment records, and the ALJ was giving 

greater weight to other physicians who reviewed the record as a whole and gave 

conclusions consistent with the record. I would hold that these four reasons 
3

together were specific and legitimate reasons not to follow Dr. Lin’s 

recommendations.

The majority responds that alcohol abuse is not “a logical basis” to conclude 

that Dr. Lin’s assessment was suspect. Why not? This deficit suggests that Dr. Lin 

lacked key information about his patient, which may have adversely affected his 

ability to draw inferences about Cargill’s ability to sit during a workday, among 

other things. Furthermore, Dr. Lin’s lack of awareness about Cargill’s alcohol 

abuse cannot be considered in a vacuum. Other evidence in the record suggested 

that Cargill could sit for longer than Dr. Lin’s recommendation; for instance, 

Cargill sat comfortably during Dr. Hoenig’s observation, Cargill shopped for 

groceries in a seated position, Cargill drove himself to work, stores, and doctor’s 

appointments, and Dr. Talcherkar opined that Cargill could sit for 6 hours. The 

ALJ explained all of this in its opinion, and therefore gave “specific, legitimate 

reasons . . . based on substantial evidence” for following Dr. Talcherkar’s 

recommendation over Dr. Lin’s. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 

Cir. 1995).

While the majority does not explain why Dr. Lin’s lack of awareness was 

not a logical basis for discounting his opinion, nor why there is not substantial 

evidence in the record to support the ALJ’s prolonged sitting RFC, the majority 

does say that it faults the ALJ for crediting Dr. Talcherkar’s opinion because 
4

certain other of Dr. Talcherkar’s assessments were contradicted. However, this 

argument misstates our role on appeal. Falsus in uno, falsus in omnibus may be a 

reason that a fact-finder like the ALJ could have rejected Dr. Talcherkar’s 

recommendation, but it does not allows us to reweigh the evidence or wholesale 

disregard a doctor’s opinion. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 

2002) (“The opinions of non-treating or non-examining physicians may also serve 

as substantial evidence when the opinions are consistent with independent clinical 

findings or other evidence in the record”). As explained above, there was 

independent substantial evidence in the record supporting Dr. Talcherkar’s 

assessment of Cargill’s ability to sit, so this opinion too supported the ALJ’s 

assessment of Cargill’s ability to sit during the work-day. Combining Dr. Lin’s 

lack of awareness of Cargill’s alcohol abuse with Dr. Talcherkar’s contrary 

opinion, and discounting the opinions of Dr. Lin’s colleagues for the reasons given 

by the ALJ, this record supports the ALJ’s finding that Cargill could sit for six 

hours in a work-day. The ALJ thus did not err by discounting Dr. Lin’s contrary 

recommendation.

For these reasons, I would affirm.