NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 30 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT


  SCOTT CAMPBELL,                               No. 19-36015

                     Plaintiff - Appellant,     D.C. No. 6:18-cv-1738-BR
    v.
  ANDREW M. SAUL, Commissioner                  MEMORANDUM*
  of Social Security,

                    Defendant - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                           Submitted October 27, 2020**
                                Portland, Oregon

Before: GRABER and IKUTA, Circuit Judges, and BENITEZ,*** District Judge.

      Scott Campbell appeals the district court’s order affirming the denial of his



      *
        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).
      ***
         The Honorable Roger T. Benitez, Senior United States District Judge for
the Southern District of California, sitting by designation.
application for disability insurance benefits by an Administrative Law Judge

(ALJ). We have jurisdiction under 28 U.S.C. § 1291, and we reverse. We review

the district court’s order affirming the ALJ’s denial of benefits de novo. Trevizo v.

Berryhill, 

, 674 (9th Cir. 2017). We will set aside a denial of benefits

if the denial is not supported by substantial evidence in the administrative record or

is based on legal error. Marsh v. Colvin, 

, 1172 (9th Cir. 2015).

      Because the parties are familiar with the facts of this case we need not

recount them in detail. In April 2015, Campbell was hospitalized with congestive

heart failure. He was treated regularly by Dr. Frederic Van Dis, a cardiologist,

over the following two years. The physician expressed a consistent opinion that

Campbell’s cardiomyopathy was unexpectedly hard to treat and that Campbell was

disabled. Specifically, Dr. Van Dis opined that Campbell had cardiomyopathy,

congestive heart failure, and post-traumatic stress syndrome which were chronic

and would require long-term treatment, probably for the rest of his life. With

respect to functional limitations, Dr. Van Dis opined that Campbell would have to

lie down approximately one hour a day in the A.M. and P.M. In response to the

question “[h]ow often would Mr. Campbell’s medical problems prevent him from

being able to maintain a regular work schedule,” Dr. Van Dis opined “[m]ore than

4 days per month.” When the Vocational Expert was asked whether there were


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jobs that a person with these functional limits could perform, the Vocational Expert

stated there were none; such limitations “would eliminate all work.”

      The ALJ gave little weight to this opinion. The ALJ did not include the

limitation that Campbell would miss “more than 4 days per month” in Campbell’s

RFC. Nor did the ALJ give any reason for not including this limitation. The

ALJ’s reasons for giving little weight to the treating physician are not supported by

substantial evidence. If the treating physician’s opinion is given full weight,

Campbell is entitled to disability benefits because the Vocational Expert has

already opined that no jobs exist for one with Campbell’s limitations.

      Normally, “[t]he opinion of a treating physician is given deference because

‘he is employed to cure and has a greater opportunity to know and observe the

patient as an individual.’” Morgan v. Comm’r, 

, 600 (9th Cir. 1999)

(quoting Sprague v. Bowen, 

, 1230 (9th Cir. 1987)). “As a general

rule, more weight should be given to the opinion of a treating source than to the

opinion of doctors who do not treat the claimant. At least where the treating

doctor’s opinion is not contradicted by another doctor, it may be rejected only for

‘clear and convincing’ reasons.” Lester v. Chater, 

, 830 (9th Cir. 1996)

(citations omitted). “We have also held that ‘clear and convincing’ reasons are

required to reject the treating doctor’s ultimate conclusions.”

this appeal, “[t]he opinion of a nonexamining physician cannot by itself constitute

substantial evidence that justifies the rejection of the opinion of . . . a treating

physician.”

      Dr. Van Dis was the only treating doctor cited by the ALJ. Other than Dr.

Van Dis, the only medical sources cited were non-treating, nonexamining,

consulting sources. Two doctors consulted on physical limitations and two

psychologists consulted on mental limitations. The ALJ noted that the consulting

physicians “never saw the claimant,” and he gave their opinions “partial weight.”

The opinions of the consulting psychologists were also given “partial weight.”

Because the opinion of a nonexamining medical source cannot by itself constitute

substantial evidence that justifies the rejection of the opinion of a treating

physician, the ALJ erred. See

evidence support the ALJ’s

rejection of Dr. Van Dis’ functional limitations on the ground that Campbell

regained the ability to walk up to 2.2 miles. The record makes clear that those

exertions consistently required Campbell to sleep for hours afterwards.

Campbell’s ability to walk before sleeping does not contradict Dr. Van Dis’

functional limitations. Had the opinion of the only treating physician correctly

been given full weight, Campbell would have been found to have been disabled

during the claimed period of disability.


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      The usual rule is to remand to develop the record. Dominguez v. Colvin, 

, 407 (9th Cir. 2016). Here, however, all three requirements are met for

remanding for the payment of benefits. See Burrell v. Colvin, 

, 1141

(9th Cir. 2014). First, the record has been fully developed, “is free from conflicts

and ambiguities, and all essential factual issues have been resolved.” 

(internal quotation marks omitted). Further administrative

proceedings would serve no useful purpose.

failed to provide

legally sufficient reasons for rejecting the treating physician’s opinion and the

claimant’s testimony. Third, if the treating physician’s opinion is credited as true,

the ALJ would be required to find Campbell disabled on remand.

      Therefore, we reverse and remand with instructions to remand to the

Commissioner of Social Security for the calculation and award of benefits for the

period from the amended disability onset date of April 14, 2015 to the date of the

ALJ’s decision, October 27, 2017.

      REVERSED AND REMANDED.




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