Soren Stiehl v. Nancy Berryhill , 706 F. App'x 892 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOREN A. STIEHL, No. 14-35718
Plaintiff-Appellant, D.C. No. 1:13-cv-00237-AA
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted August 25, 2017**
Before: NELSON, TROTT, and SILVERMAN, Circuit Judges.
Soren Stiehl appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Stiehl’s application for supplemental
security income under Title XVI of the Social Security Act. Stiehl alleged
*
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).
disability due to various mental and physical impairments. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Molina v. Astrue, 674 F.3d 1104,
1110 (9th Cir. 2012), and we reverse and remand for further proceedings.
The Administrative Law Judge (“ALJ”) erred by rejecting the contradicted
opinion of Stiehl’s treating psychologist, Dr. Greene, without providing “specific
and legitimate reasons supported by substantial evidence.” Orn v. Astrue, 495 F.3d
625, 632 (9th Cir. 2007) (internal citations and quotations omitted). The ALJ gave
no weight to the mental RFC report that Dr. Greene completed in June 2011,
reasoning that the mental RFC report was inconsistent with Dr. Greene’s January
2011 report which found “only moderate difficulty in social, occupational, or
school functioning.” The ALJ also explained that Dr. Greene’s mental RFC report
failed to describe the four incidents of decompensation that Dr. Greene claimed
Stiehl suffered. The ALJ’s reasoning is not supported by substantial evidence in
the record as a whole.
First, Dr. Greene’s January report described results of several
neuropsychological tests, including findings of “extremely low processing speed
index, 0.3%ile,” “extremely low range bilaterally” on a test of fine motor speed,
and “severely impaired executive functioning.” The ALJ’s finding of only
moderate limitations was based entirely on a single GAF score contained in the
January report, which the ALJ improperly relied upon to reject Dr. Greene’s
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mental RFC report. See Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014)
(concluding that the ALJ improperly rejected a treating physician’s opinion based
on isolated notes of improved mood and energy level when the overall diagnostic
picture of the treatment notes was far more severe). Moreover, Dr. Greene’s
October letter, submitted to and considered by the Appeals Council, explained that
the GAF score was assigned for treatment purposes and was not inconsistent with
the conclusions in the mental RFC report. See Brewes v. Comm’r of Soc. Sec.
Admin., 682 F.3d 1157, 1160 (9th Cir. 2012) (holding that when the appeals
council considers new evidence, that evidence becomes part of the record and this
court must consider it “in determining whether the Commissioner’s decision is not
supported by substantial evidence”).
Second, Dr. Greene’s October letter clarified that her conclusions regarding
episodes of decompensation in the mental RFC report were based on her findings
from the January report regarding PTSD and anxiety. Based on the full record
before this Court, substantial evidence does not support the ALJ’s reasoning that
Dr. Greene failed to describe the source of her conclusions regarding episodes of
decompensation. See Ghanim, 763 F.3d at 1161-62. The Commissioner contends
that the ALJ could reject Dr. Greene’s explanation for episodes of decompensation
because the explanation was based on Stiehl’s unreliable self-reports. This
contention lacks merit because this Court can only review the ALJ’s decision
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based on the reasoning and factual findings offered by the ALJ. See Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009). Because the
ALJ’s finding that Stiehl did not meet listing 12.06 depended on the ALJ’s
improper rejection of Dr. Greene’s mental RFC report, the ALJ should reconsider
this finding on remand if necessary.
The ALJ erred by giving less than full weight to Stiehl’s testimony regarding
the intensity and limiting effects of his symptoms. Because the ALJ found that
medically determinable impairments could reasonably be expected to cause
Stiehl’s symptoms and no evidence of malingering, the ALJ was required to offer
specific, clear, and convincing reasons for rejecting Stiehl’s testimony. Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The ALJ reasoned that “the medical
evidence of record reflects on irregular treatment for the claimant’s mental
impairments [and] no treating provider offered a functional assessment of the
claimant’s mental residual functional capacity.” The ALJ improperly relied on
Stiehl’s lack of treatment to reject his testimony without discussing evidence in the
record showing that Stiehl could not afford treatment and missed medical
appointments due to cognitive issues. See Orn, 495 F.3d at 638 (concluding that an
ALJ must consider evidence in the record explaining lack of treatment before
relying on lack of treatment to discredit claimant testimony).
We reverse and remand for further administrative proceedings, including
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consideration of Dr. Greene’s opinions, Dr. Greene’s October letter submitted to
the Appeals Council, and Stiehl’s testimony regarding the intensity and limiting
effects of his symptoms. See Dominguez v. Colvin, 808 F.3d 403, 408-09 (9th Cir.
2015) (remanding to the ALJ for further proceedings to resolve outstanding issues
in the record).
REVERSED AND REMANDED.
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