NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA FLEENOR,

Plaintiff

- Appellant,

v. KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant

- Appellee. No. 21

- 35346
D.C. No. 1:19

- cv - 00277

- DCN

- REB

MEMORANDUM *

Appeal from the United States District Court

for the District of Idaho David C. Nye, Chief District Judge, Presiding Submitted May 19, 2022 * * Seattle, Washington Before: WARDLAW, GOULD, and BENNETT, Circuit Judges. Donna Fleenor appeals the d istrict court’s order affirming the Social Security Commissioner’s denial of disability benefits. T his appeal arises after our prior
review of a n earlier appeal , in which we remanded the decision to the agency wi th

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

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

AUG 30 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

instructions to “ reevaluate Dr. Prier and Dr. Atteberry’s medical opinions in
accordance with the factors laid out in 20 C.F.R. § 404.1527(c)(2)

- (6)

. ” Fleenor v. Berryhill , 752 F. App’x 451, 452 (9th Cir. 2018). Fleenor contends that , on remand , the s econd Administrative Law Judge (“ALJ”) erred when he denied disability
benefits because his findings were not supported by substantial evidence

. Specifically, Fleenor contends that the s econd ALJ did not adequately assess medical opinion e vidence in accordance with our prior instructions and the 20 C.F.R. § 404.1527(c)(2)

- (6) factors, and that the ALJ erred in rejecting her symptom testimony. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we again vacate and remand. We review the di strict court's judgment affirming the ALJ ’ s denial of Supplemental Security Income (“ SSI ”) benefits de novo , Tommasetti v. Astrue , 533 F.3d 1035, 1038 (9th Cir. 2008), “and reverse [] only if the ALJ ’ s decision was not supported by substantial evidence in the record as a whole or if the ALJ applied the wrong legal standard , ” Molina v. Astrue , 674 F.3d 1104, 1110 (9th Cir. 2012).
T he first ALJ found that Fleenor’s “allegations of disabling symptoms [were] not consistent with her daily activities.” R eviewing the first ALJ’s decision , we held “that the ALJ erred in rejecting the opinions of treating physicians, Drs. Prier and Atteberry, and in discrediting Fleenor’s symptom testimony.” Fleenor , 752 F. App’x
at 452. We noted that “[i]n a four

- sentence paragraph, the ALJ gave ‘little weight’3

to Dr. Prier’s opinion because he gave it on a check

- box form with no explanation, and his treatment records showed little objective findings.” Id . “In an even shorter
three

- sentence paragraph, the ALJ assigned ‘little weight’ to Dr. Atteberry’s opinion
because he ‘ merely ’ checked a box on the form and gave no further explanation.”
Id

. We cautioned that a rejection of Fleenor’s symptom testimony must be supported by “specific, clear, and convincing reasons.” Id. (internal quotation marks and citation omitted).
On remand , we instructed the agency to evaluate Drs. Prier and Atteberry ’s opin ions “ in accordance with the factors listed in 20 C.F.R. § 404.1527(c)(2)

- (6). ” Id. at 453. However, contrary to our instruction s , the second ALJ did not
evaluate the length, na ture, frequency of examination, or extent of Fleenor’s treatment relationship with her physicians . The second ALJ instead concluded that “Dr. Prier diagnosed major depressive disorder and cervicalgia/cervical radiculopathy, with minimal objective exam, signs, or findings reprted [sic] in his own treatment notes,” without acknowledgi ng the lengthy treatment relationship
between Dr. Prier and Fleenor from 2011 to 2014. With respect to Dr. Atteberry’s opinion, the second ALJ determined that “[f]or all the same reasons, Dr. Atteberry’s opinion ha[d] negligible probative value.” The secon d ALJ did not discuss the fact that Dr. Atteberry was the physician who performed Fleenor’s neck surgery, a context in which Dr. Atteberry saw Fleenor as a patient many times, nor did it4

recognize that Dr. Atteberry is a neurosurgeon, a specialty that incr eases the
relevance of his opinion under 20 C.F.R. § 404.1527(c)( 5 )

. After rehearing, the second ALJ discounted Fleenor’s symptom testimony, noting that “[Fleenor’s] activities of daily living . . . are not as limited as one would expect from an individu al alleging complete disability.” We agree with the ALJ that Fleenor’s “statements concerning the intensity, persistence, and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence on the record.” “Even where those activities suggest some difficulty in functioning, they may be grounds for discrediting the claimant’s testimony to the extent that they contradict claims of totally debilitating impairment.” Molina , 674 F.3d at 1112

– 13. Under the proper stan dard of review, there is no reason for this panel to overturn the credibility determination. See Batson v. Comm’r of Soc. Sec.
Admin , 359 F.3d 1190, 1193 (9th Cir. 2004) (“[T]he Commissioner’s findings are upheld if supported by inferences reasonably draw n from the record, and if evidence exists to support more than one rational interpretation, we must defer to the Commissioner’s decision.”). We conclude that the ALJ properly discredited Fleenor’s symptom testimony. Nonetheless, b ecause the s econd ALJ did not follow our previous instruction s ,

w e again remand this case back to the agency for additional rehearing and analysis consistent with the 20 C.F.R. § 404.1527(c)(2)

- (6) factors. Any analysis rejecting5

the medical opinions of Drs. Atteberry and Prier should be accompanied by “‘specific, clear, and convincing reasons.’” Burrell v. Colv in , 775 F.3d 1133, 1136 (9th Cir. 2014) (quoting Molina , 674 F.3d at 1112)

. The parties shall each bear their

own costs

. VACATED AND REMAND ED .