Dawn Holden v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 2018
• Docket: 16-35872
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 23 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAWN HOLDEN, No. 16-35872

Plaintiff-Appellant, D.C. No. 3:16-cv-05003-BHS

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

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Submitted April 19, 2018**

Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

Dawn Holden appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of Holden’s application for supplemental

security income under Title XVI of the Social Security Act. We have jurisdiction

* 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). under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review de novo, Attmore v.

Colvin, 827 F.3d 872, 875 (9th Cir. 2016), and we reverse.

The ALJ did not err by discounting consultative psychologist Dr. Garrison’s

opinion that Holden suffers from marked limitation in concentration, persistence,

and pace. The ALJ supported this conclusion by citing to substantial evidence in

the record, namely Dr. Khaleeq’s opinion from a psychological evaluation that

Holden’s memory, thought content, and intellectual functioning were normal and

Dr. McClellan’s exam notes that Holden’s concentration, persistence, and pace

were within normal limits. Even if this evidence lends itself to more than one

interpretation, we will uphold the ALJ’s rational interpretation, see Ryan v.

Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008), and defer to the

ALJ’s resolution of ambiguities in the medical evidence, see Tommasetti v. Astrue,

533 F.3d 1035, 1041-42 (9th Cir. 2008).

Even if the ALJ erred by relying upon Dr. Khaleeq’s and Dr. McClellan’s

opinions, his finding that Holden was only moderately limited in concentration,

persistence, and pace is still supported by substantial evidence. The ALJ also

pointed to Holden’s own statements that she participated in activities such as

crocheting and could follow spoken instructions and pay attention for half an hour,

as well as the psychiatric evaluation for the Washington Department of Social and

2 Health Services by Dr. Quinci, who concluded that Holden “had no limitation in

her ability to understand, remember, and follow simple instructions or to follow

complex instructions.” Thus, the ALJ sustained this finding with other substantial

evidence, rendering any error in this portion of the decision harmless. See Molina

v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).

However, the ALJ erred in assigning “little weight” to Dr. Garrison’s

opinion that Holden’s condition equaled Listing 12.04(C). In reasoning that Dr.

Garrison had undermined his own opinion by indicating that Holden had not had

any episodes of decompensation in the past, the ALJ improperly conflated the

requirements of the first and second clauses of Listing 12.04(C). While the first

clause of Listing 12.04(C) requires evidence of repeated episodes of

decompensation, the second clause requires only a prediction of decompensation

occurring in the future and does not mention evidence of decompensation in the

past. See 20 C.F.R. Part 404, Subpt. P, App. 1, 12.04(C) (2014); Webb v. Smart

Document Solutions, LLC, 499 F.3d 1078, 1084 (9th Cir. 2007) (“As a general

interpretive principle, the plain meaning of a regulation governs.” (citation and

internal quotation marks omitted)). Because the ALJ erroneously incorporated the

requirements of the first clause of Listing 12.04(C) when determining whether

Holden fulfilled the criteria in the second clause of the listing, the ALJ misapplied

3 the regulation. See Pitzer v. Sullivan, 908 F.2d 502, 505 (9th Cir. 1990) (reversing

an SSA decision that a claimant was not disabled and did not meet or equal a listed

impairment where the agency “added new requirements to [the] medical listing . . .

other than those required by the plain language of the regulation”). After finding

that Holden was not presumptively disabled under the listing, the ALJ “proceeded

to question four and five in the sequential inquiry . . . , rather than stopping at

question three.” Id. at 505-06. This error therefore affected the ultimate

nondisability determination and was not harmless. See Molina, 674 F.3d at 1115.

The other reasons that the ALJ proffered for discounting Dr. Garrison’s

opinion lack specificity and support in the record. The ALJ’s statement that Dr.

Garrison’s opinion “not only lacks substantial support in the record, but . . .

contrasts sharply with the other evidence, which renders it less persuasive,”

without further explanation or citation to specific evidence in the record, “does not

achieve the level of specificity our prior cases have required.” Embrey v. Bowen,

849 F.2d 418, 421 (9th Cir. 1988). The ALJ’s remark that Dr. Garrison had

observed that Holden had been sober for a little over a year at the time of the

hearing and that Dr. Garrison had “minimized the claimant’s substance use

disorder throughout his testimony” also lacks specificity. See id.

4 Where “(1) the record has been fully developed and further administrative

proceedings would serve no useful purpose; (2) the ALJ has failed to provide

legally sufficient reasons for rejecting evidence, whether claimant testimony or

medical opinion; and (3) if the improperly discredited evidence were credited as

true, the ALJ would be required to find the claimant disabled on remand,” the court

may remand for payment of benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th

Cir. 2017) (citation and internal quotation marks omitted). All three requirements

are met here: the record includes two consultative examiner opinions, in addition to

Dr. Garrison’s expert medical testimony, and the record therefore has been fully

developed; the ALJ proffered insufficient reasons for rejecting Dr. Garrison’s

opinion that increases in mental demands or changes in the environment would

likely cause Holden to decompensate, as required under Listing 12.04(C); and if

this evidence were credited as true, the ALJ would be required to find Holden

disabled on remand, as she would fulfill the criteria of Listing 12.04(C). See id.;

see also Pitzer, 908 F.2d at 506 (finding these requirements met where agency

committed legal error by imposing “a higher standard than the plain language of

the [listing] regulation permits” and where no further proceedings were necessary).

Furthermore, the record as a whole does not leave serious doubt as to whether

Holden is actually disabled. Holden’s mental health impairments and their effects

5 on her functionality are well documented in the record. We therefore reverse and

remand for an immediate award of benefits.

REVERSED AND REMANDED.