NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAIME GARCIA CARDENAS,

Plaintiff

- Appellant,

v.
NANCY A. BERRYHILL, Commissioner of Social Security,

Defendant

- Appellee. No. 17

- 15308

D.C. No. 3:16

- cv

- 01140

- EDL

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Elizabeth D. Laporte, Magistrate Judge, Presiding

Argued and Submitted June 15, 2018 San Francisco, California

Before: MURPHY, ** PAEZ, and IKUTA, Circuit Judges.

Jaime Garcia Cardenas appeals the district court’s order granting summary

judgment in favor of the Commissioner of Social Security (the “Commissioner ”)

and upholding the denial of disability insurance b enefits under Titl e II of the Social

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

- 3.

** The Honorable Michael R. Murphy, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 

# FILED

JUL 6 2018

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Security Act, 42 U.S.C. §§ 416, 423. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm in part, reverse in part, and remand for further proceedings.

1. The administrative law judge (“ALJ”) did not err in affording limited

weight to the opinion of Cardenas’s former treating physician, Dr. Lawler , which

was contradicted in certain respects by the opinion of non

- examining medical

expert Dr. Schmitter

. The A LJ gave several reasons for affording limited weight to

Dr. Lawler’s opinion , including that he was unfamiliar with Cardenas’s physical

limitations during the relevant time period

. Such a reason is “specific and

legitimate” and supported by substantial ev idence. Trevizo v. Berryhill
, 871 F.3d

664, 675 (9th Cir. 2017) ; see also 20 C.F.R. § 404.1527(c)(2)(i)

– (ii)

. We reject Cardenas’s argument that the ALJ erred in not attempting to

resolve an ambiguity in Dr. Lawler’s opinion form. T he ALJ noted that the form

“does not state to what time period it refers.” Regardless of the time period

referenced in the form
, Dr. Lawler lacked first

- hand knowledge of Cardenas’s

condition during the relevant period for purposes of finding disability, April 2008

–

December 2008
, as Dr. Lawler did not treat or examine Cardenas within seven

months of that period

. 1 Thus, the ambiguity in Dr. Lawler’s opinion form was

1 The Commissioner denied Cardenas’s prior application for benefits on April 9, 2008, and the date of last insured for the present application is October 31, 2008. Cardenas stopped seeing Dr. Lawler after August 27, 2007, except for one exami nation on Octo ber 19, 2009.3

immaterial and so the ALJ was under no duty to attempt to resolve it. See Bayliss

v. Barnh art , 427 F.3d 1211, 1217 (9th Cir. 2005). Because the ALJ’s reliance on

Dr. Lawler’s limited interaction with Cardenas after August 2007 was proper, we

need not consider the ALJ’s other reasons for affording Dr. Lawler’s opinion

limited weight.

2. The A LJ’s reasons for rejecting Cardenas’s testimony as to his pain

related limitations were erroneous. 2 S ubstantial evidence does not support the

ALJ’s finding that Cardenas’s activities of daily living

— which consist ed of basic

household chores, as well as oc casional walks and trips to the grocery store with

his wife

— were inconsistent with his “sit

- stand” limitation. Se e Ghanim v. Colvin
, 763 F.3d 1154, 1165 (9th Cir. 2014); Garrison v. Colvin , 759 F.3d 995, 1016 (9th

Cir. 2014). The ALJ also reasoned that Cardenas’s testimony was “not fully

supported by the medical evidence of record,” specifically, three “mild objective

findings.” The ALJ’s reliance on the lack of support in the objective medical

record, however, is insufficie nt to support the rejection of Cardenas’s testimony as
to his pain

- related limitations

. 3 See Trevizo , 871 F.3d at 679.

2 Although Cardenas did not raise this issue before the district court until his reply brief, the district court nonetheless considered it. Accordingly, the issue is not waived on appeal. See Tarabochia v. Adkins , 766 F.3d 1115, 1128 n.12 ( 9th Cir. 2014).

3 Although the ALJ also referenced Cardenas’s failure to seek treatment from Dr. Lawler between August 2007 and October 2009, the ALJ did not rely on that fact4

3. According to the vocational expert, if Cardenas’s testimony regarding his

sit

- stand limitation were credited as true, then he is l egally disabled. We decline to

direct the award of benefits, however, because the record is not “free of conflicts,

ambiguities or gaps. ” Leon v. Berryhill , 880 F.3d 1041, 1047 (9th Cir. 2017). For

example, Cardenas’s testimony conflicts with the testim ony of Dr. Schmitter, and

Dr. Schmitter’s testimony is not entirely clear with respect to the parts of Dr.

Lawler’s opinion with which he agrees. Accordingly, we remand for further

proceedings consistent with this disposition

. 4

AFFIRMED in part, REVERSED in part, and REMANDED.

when rejecting Cardenas’s testimony. Thus, we do not consider Cardenas’s failur e to seek treatment to be a reason given by the ALJ for rejecting hi s testimony. See Trevizo , 871 F.3d at 682 n.10

. 4 Cardenas’s arguments regarding the law of the case and rule of mandate are waived on appeal because he did not raise them before the district court. See Greger v. Barnhart , 464 F.3d 968, 973 (9th Cir. 2006).