                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 28 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DANIEL B. LAYTON,                                No.   15-15671

              Plaintiff-Appellant,               D.C. No. 2:13-cv-02635-MHB

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

              Defendant-Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Michelle H. Burns, Magistrate Judge, Presiding

                       Argued and Submitted March 14, 2017
                            San Francisco, California

Before: FERNANDEZ, MURGUIA, and WATFORD, Circuit Judges.

      1. The administrative law judge (ALJ) did not provide specific, legitimate

reasons for rejecting the opinion of Daniel Layton’s treating physician, Dr. Stumpf.

See Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). The ALJ merely offered

unexplained assertions that the opinions of the state agency physicians were more


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                            Page 2 of 3
persuasive than Dr. Stumpf’s, and suggested that Dr. Stumpf had improper

motives, without citing any evidence of actual impropriety. These do not qualify

as specific, legitimate reasons. See Garrison v. Colvin, 759 F.3d 995, 1013 (9th

Cir. 2014); Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995). Absent such

reasons, the ALJ should have credited Dr. Stumpf’s opinion over those of the non-

examining state agency physicians. See Garrison, 759 F.3d at 1012. The failure to

do so was error.

      2. The ALJ’s hypothetical questions to the vocational expert did not capture

Layton’s limitations in the areas of concentration, persistence, and pace. See

Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). Substantial evidence,

such as the opinions of the state agency physicians, supported inclusion of these

limitations in Layton’s residual functional capacity. The ALJ therefore erred by

not including them in the hypothetical.

      3. Although the ALJ cited the applicable two-step test for assessing the

credibility of a claimant’s subjective symptom testimony, he did not apply that test

correctly. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007).

First, an ALJ must determine whether the claimant’s diagnosed impairments could

reasonably be expected to produce the symptoms alleged. Id. at 1036. Second, if

the first step is satisfied and there is no evidence of malingering, the ALJ can reject
                                                                          Page 3 of 3
the claimant’s symptom testimony only on the basis of specific, clear, and

convincing reasons supported by substantial evidence. Id.

      Here, the ALJ concluded that Layton’s impairments could reasonably be

expected to cause only some of his alleged symptoms, but did not specify which

symptoms he was referencing. The ALJ then concluded that Layton’s limitations

were not as disabling as alleged because Layton’s hobbies included reading,

watching television and movies, and playing video games. These activities require

significantly less concentration, stamina, memory, and interpersonal skills than the

jobs identified by the vocational expert. Layton’s hobbies are not clear and

convincing reasons for rejecting his symptom testimony, especially because the

ALJ failed to specify which symptoms could reasonably be caused by Layton’s

impairments. See Burrell v. Colvin, 775 F.3d 1133, 1137–38 (9th Cir. 2014).

      The ALJ’s decision denying Layton’s claim was not supported by

substantial evidence. We remand to the district court with instructions to remand

to the Commissioner for further proceedings.

      REVERSED and REMANDED.
