NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 12 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONNA MARIE GALLANT, No. 18-35425

Plaintiff-Appellant, D.C. No. 3:16-cv-00258-SLG

v.

MEMORANDUM*

ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Alaska Sharon L. Gleason, District Judge, Presiding

Argued and Submitted June 13, 2019 Anchorage, Alaska

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

Because of a traumatic brain injury in September 2018 and preexisting

mental health conditions, Donna Marie Gallant was found disabled by the Social

Security Administration in April 2009. Three years later, in April 2012, the Social

Security Administration determined that Gallant was no longer disabled, and thus

no longer eligible for benefits. An Administrative Law Judge (“ALJ”) agreed, and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. a district court upheld the ALJ’s decision. We reverse. The ALJ committed two

legal errors during the adjudication of Gallant’s case that require reconsideration of

whether Gallant was in fact disabled as of April 2012.

1. To conclude that a claimant is no longer disabled under the Social

Security Administration’s regulations, the Commissioner must show that the

claimant has experienced medical improvement since he or she was determined to

be disabled. 20 C.F.R. § 404.1594(a), (b)(1). The Commissioner must then show

that the claimant’s “medical improvement is related to [the claimant’s] ability to

work.” Id. § 404.1594(a), (b)(3). These are separate, albeit related, inquiries.

To assess whether a claimant has experienced medical improvement, an ALJ

must compare the current “medical severity of [the] impairment(s) . . . present at

the time of the [claimant’s] most recent favorable medical decision . . . to the

medical severity of [those] impairment(s)” at the time of that prior decision. Id. §

404.1594(b)(7). In making that comparison the ALJ must examine “the symptoms,

signs and/or laboratory findings associated with [the claimant’s] impairment(s)” on

each date. Id. § 404.1594(b)(1). If the ALJ determines that the claimant

experienced medical improvement, the ALJ then considers whether that

improvement is related to the claimant’s ability to work, assessing whether the

improvement has increased the claimant’s “functional capacity to do basic work

activities.” Id. § 404.1594(b)(3).

2 Here, the ALJ did not properly analyze whether there was medical

improvement in Gallant’s preexisting impairments between April 2009 and April

2012. Nothing in the ALJ’s opinion addresses the medical severity of Gallant’s

impairments in April 2009. Instead, the ALJ concluded there was medical

improvement because Gallant suffered only “minimal limitations” from her mental

health impairments in 2012 and had received less treatment for her impairments

between 2009 and 2012 than before. But, as discussed, the ALJ was first required

to compare the medical severity of Gallant’s traumatic brain injury and mood

disorder in 2009 and 2012, by considering the symptoms, signs, and laboratory

findings associated with those impairments in both those years. Neither frequency

of treatment nor the limitations caused by an impairment are a symptom, sign, or

laboratory finding. See id. § 404.1594(b)(1)–(2) (distinguishing medical severity

of impairment from limitations caused by impairment).

2. The ALJ further erred in giving no weight to the report submitted by Dr.

Russell Cherry, a psychologist who examined Gallant in August 2013. Dr. Cherry

diagnosed Gallant with a mood disorder caused by a traumatic brain injury, and

opined that Gallant could not engage in competitive employment because of that

disorder.

The ALJ did not state specific and legitimate reasons supported by

substantial evidence for entirely disregarding Dr. Cherry’s report. See Garrison v.

3 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ noted that Dr. Cherry found

that Gallant had “average intellectual and academic functioning” and suggested

that this finding was not consistent with Dr. Cherry’s conclusion that Gallant had a

disabling mood disorder. But a person’s intelligence has no bearing on whether or

not that person has a mood disorder. See Diagnostic and Statistical Manual of

Mental Disorders, 293.83 Mood Disorder Due to a General Medical Condition

401–05 (4th Ed. 2000).

The ALJ also provided the following explanation for not crediting Dr.

Cherry’s opinions:

[W]hile ‘[Traumatic Brain Injury] literature’ may describe persisting mood and personality changes despite normal MRI findings, this is not necessarily the case here, though I acknowledge that the claimant continues to experience related limitations, if not as severe as Dr. Cherry believes.

This statement provides little reason to discredit Dr. Cherry’s opinion. It notes that

Dr. Cherry’s opinion was consistent with the medical literature regarding traumatic

brain injuries, and that the ALJ nonetheless disagreed with Dr. Cherry’s

conclusion, without expressing any reason for the disagreement.

Finally, the ALJ appeared to discredit Dr. Cherry’s opinion because Dr.

Cherry’s opinion largely relied on Gallant’s subjective reports, as well as the

reports of Gallant’s mother. It is completely appropriate for mental health

professionals to rely on their patient’s subjective reports. Thus, a psychologist’s

4 reliance on subjective reports, without more, is not a legitimate reason for

discrediting the psychologist’s opinion. See Buck v. Berryhill, 869 F.3d 1040,

1049 (9th Cir. 2017) (“[T]he rule allowing an ALJ to reject opinions based on self-

reports does not apply in the same manner to opinions regarding mental illness.”).

A mental health practitioner’s reliance on a claimant’s subjective reports can

be a legitimate basis for discrediting the practitioner’s opinions if the ALJ also

provides legally sufficient reasons to discredit the claimant’s testimony. Id. But

here, the ALJ did not provide clear and convincing reasons for discrediting

Gallant’s testimony regarding her irritability, frustration, and ability to persist in a

competitive workplace environment, stemming from her mood disorder and

traumatic brain injury. Many of the ALJ’s reasons for discrediting Gallant’s

testimony did nothing to undermine Gallant’s testimony. See Lester v. Chater, 81

F.3d 821, 834 (9th Cir. 1995). For example, it is not surprising or unusual that the

majority of Gallant’s complaints related to her mood were also “related to

relationship issues between the claimant and her mother, the claimant’s feelings

towards the individuals who allegedly caused the motor vehicle accident in which

the claimant was involved, relationship issues between the claimant and her

significant other, and the claimant’s issues with parenting.” People usually

describe their mood within the context of their relationships and experiences.

5 Other reasons provided by the ALJ for discrediting Gallant mischaracterize

the record. For example, the ALJ stated that Gallant had stopped counseling in

September 2011, but the record indicates that Gallant had seen a counselor in

January 2012. In addition, the ALJ stated that “Dr. Woods’ examination records

reveal no significant mental status abnormalities.” But these records do not

include any mental status examinations; it is thus unsurprising that those records

did not reveal “significant mental status abnormalities.”

* * *

As the ALJ committed legal error during his consideration of whether

Gallant had experienced medical improvement and during his evaluation of Dr.

Cherry’s opinions, we reverse the judgment of the district court with instructions to

remand to the ALJ for reconsideration consistent with this disposition.

REVERSED AND REMANDED.

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