NOT FOR PUBLICATION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 district court’s order affirming the Social Security 

Commissioner’s denial of disability benefits. This appeal arises after our prior 

review of an earlier appeal, in which we remanded the decision to the agency with 

* 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 APPEALS
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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 second Administrative Law Judge (“ALJ”) erred when he denied disability 

benefits because his findings were not supported by substantial evidence.

Specifically, Fleenor contends that the second ALJ did not adequately assess medical 

opinion evidence 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 district 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). 

The first ALJ found that Fleenor’s “allegations of disabling symptoms [were] 

not consistent with her daily activities.” Reviewing 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’ 
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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 

opinions “in accordance with the factors listed in 20 C.F.R. § 404.1527(c)(2)-

(6).” Id. at 453. However, contrary to our instructions, the second ALJ did not 

evaluate the length, nature, 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 acknowledging 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 second 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 it
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recognize that Dr. Atteberry is a neurosurgeon, a specialty that increases 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 individual 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 standard 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 drawn 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, because the second ALJ did not follow our previous instructions, 

we 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 rejecting 
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the medical opinions of Drs. Atteberry and Prier should be accompanied by 

“‘specific, clear, and convincing reasons.’” Burrell v. Colvin, 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 REMANDED.