NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRAIG J. SAKOWITZ, 

Plaintiff-Appellant, 

 v. 

KILOLO KIJAKAZI, Acting Commissioner 

of Social Security, 

Defendant-Appellee, 

and 

ANDREW M. SAUL, Commissioner of 

Social Security, 

Defendant.

No. 22-16578 

D.C. No. 3:20-cv-06157-AGT 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Alex G. Tse, Magistrate Judge, Presiding

Argued and Submitted November 17, 2023

San Jose, California

Before: MURGUIA, Chief Judge, and PAEZ and FRIEDLAND, Circuit Judges.

Craig Sakowitz (“Sakowitz”) appeals the district court’s ruling granting in 

part and denying in part the Commissioner of Social Security’s motion for 

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

except as provided by Ninth Circuit Rule 36-3.

FILED

DEC 20 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

summary judgment.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district 

court’s order affirming a denial of Social Security benefits. Revels v. Berryhill, 

874 F.3d 648, 653–54 (9th Cir. 2017) (citing Brown-Hunter v. Colvin, 806 F.3d 

487, 492 (9th Cir. 2015)). We may reverse a denial of benefits when the decision 

is “based on legal error or not supported by substantial evidence in the record.” Id.

at 654 (quoting Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 

2003)). We reverse in part and affirm in part.

Among other impairments, Sakowitz suffers from fibromyalgia, a rheumatic, 

chronic pain disease. It is now widely recognized that “the symptoms of 

fibromyalgia can ‘wax and wane,’ and that a person may have ‘bad days and good 

days.’” Id. at 657 (quoting SSR 12-2P, 2012 WL 3104869 (July 25, 2012)). 

Because the disease can manifest inconsistently, evaluating this impairment

requires attention to its “unique characteristics.” See id. at 652; see also id. at 662

(noting that “misunderstanding of fibromyalgia” and failure to properly analyze 

symptoms appears to be “a recurrent problem”).

The administrative law judge (“ALJ”) rejected Sakowitz’s testimony and the 

opinions of Sakowitz’s treating physician, Dr. Bhat, and chiropractors, Drs. 

Mehaffey and Robinson. The district court largely affirmed the ALJ’s decision, 

but remanded for reconsideration of the opinion of an examining physician, Dr. 
3 

Warbritton. Sakowitz argues that the ALJ erred in discounting his testimony and 

the opinions of Drs. Bhat, Mehaffey, and Robinson. 

An ALJ may reject a claimant’s testimony about the severity of his

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

Id. at 655 (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). 

Inconsistencies between a claimant’s daily activities and claimed level of 

impairment can be a legitimate factor in evaluating the claimant’s testimony, Orn 

v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007), but “the mere fact that a plaintiff has 

carried on certain daily activities . . . does not in any way detract from her 

credibility as to her overall disability,” Revels, 874 F.3d at 667 (quoting Benecke v. 

Barnhart, 379 F.3d 587, 594 (9th Cir. 2004)).

To discount the opinion of a treating physician, the ALJ must provide

“specific and legitimate reasons that are supported by substantial evidence.” Id. at 

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

To discount other medical opinions, such as those of chiropractors, the ALJ must 

provide “reasons germane to each witness for doing so.” Id. at 655. 

1. The ALJ erred in rejecting Sakowitz’s testimony and declaration based 

on alleged inconsistencies with record evidence, including his daily activities and 

occasional trips. The ALJ primarily relied on Sakowitz’s occasional trips, 

“weekends with long driving,” his ability to walk his dog, his exercise schedule, 
4 

and his caretaking tasks to conclude that Sakowitz could return to his previous 

work in IT. But it is not obvious that these tasks translate to typing, and Sakowitz 

explained that typing specifically exacerbates his symptoms. The ALJ thus erred 

by relying on these irrelevant activities to discount Sakowitz’s testimony regarding 

his ability to type. 

Nor was the extent of Sakowitz’s activities inconsistent with his testimony. 

Sakowitz testified that he was often “pretty worn out” after performing caregiving 

activities, and the record indicates that his ability to do these activities varied

because he often needed to rest. “One does not need to be utterly incapacitated in 

order to be disabled.” Id. at 667 (quoting Benecke, 379 F.3d at 594). 

In relying on alleged inconsistencies, the ALJ did not provide clear and 

convincing reasons to discount Sakowitz’s testimony and declaration about his 

symptoms and pain.

2. The ALJ also erred in discounting the opinions of Sakowitz’s treating 

physician, Dr. Bhat, and his chiropractors, Drs. Mehaffey and Robinson, based on

alleged inconsistencies. The ALJ did not explain how Sakowitz’s activities were 

inconsistent with these providers’ opinions, particularly given that they were aware 

of his level of activity and consistently acknowledged the variance in his 

symptoms.

First, the ALJ did not provide sufficiently specific and legitimate reasons for 
5 

rejecting Dr. Bhat’s opinion. The ALJ rejected Dr. Bhat’s opinion because it was 

“vague” and inconsistent with Sakowitz’s reported daily activities and occasional 

travel. The ALJ, however, did not explain how the opinion was inconsistent with 

Sakowitz’s activities, of which Dr. Bhat was aware. And Dr. Bhat’s letter was not 

vague; it described Sakowitz’s need to “stagger activity to preserve strength for 

routine activities,” which are “challenging,” “result in debilitating depletion of his 

energy,” and “cause[] an increase in his symptoms.” Medical evidence “must be 

construed in light of fibromyalgia’s unique symptoms.” As with Sakowitz’s 

testimony, the ALJ ignored crucial evidence: namely, that Dr. Bhat knew and 

documented the extent to which Sakowitz’s activities were limited by his need to 

rest and recover. The ALJ’s reasons for rejecting Dr. Bhat’s opinion were not 

specific and legitimate. See id. at 654.

Similarly, the ALJ did not provide germane reasons for assigning no weight 

to the opinions of Sakowitz’s treating chiropractors, Drs. Mehaffey and Robinson.

The ALJ relied on their opinions’ purported inconsistency with Sakowitz’s 

activities. But Dr. Mehaffey consistently noted variances in Sakowitz’s pain and 

symptoms. And Dr. Robinson documented that Sakowitz “struggles to complete 

daily activities and routines,” “must spread out his activities,” and “rest and sleep 

in between outings.” Given the nature of fibromyalgia and the chiropractors’

express acknowledgement that Sakowitz’s symptoms and pain varied, the alleged 
6 

inconsistencies were not germane reasons for rejecting their opinions. See id. at 

655. 

3. Because neither party challenges the district court’s decision to remand 

for reconsideration of Dr. Warbritton’s opinion, we do not address this aspect of 

the district court’s decision.

In sum, substantial evidence does not support the ALJ’s decision to discount 

Sakowitz’s testimony and the opinions of his treating providers. It is appropriate 

to remand for further administrative proceedings, rather than for an award of 

benefits, so that the agency may properly reconsider the relevant evidence before 

making a disability determination. See Taylor v. Comm’r of Soc. Sec. Admin., 659 

F.3d 1228, 1235 (9th Cir. 2011). Accordingly, we reverse and remand for further 

administrative proceedings consistent with this memorandum.

Appellant shall recover his costs on appeal.

AFFIRMED IN PART; REVERSED IN PART and REMANDED for 

further administrative proceedings.