FILED

NOT FOR PUBLICATION

JUL 2 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAYMOND GREPPI III, No. 19-16030

Plaintiff-Appellant, D.C. No. 3:18-cv-05576-TSH

v.

MEMORANDUM*

ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Hon. Thomas Hixson, Magistrate Judge, Presiding

Argued and Submitted June 10, 2020* San Francisco, California

Before: THOMAS, Chief Judge, and SCHROEDER and BUMATAY, Circuit Judges.

Raymond Greppi appeals the district court’s order affirming the denial of his

application for disability insurance benefits by the Administrative Law Judge

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. parties are familiar with the facts of this case we need not recount them here. We

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

Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). We will affirm the

ALJ’s decisions that were supported by substantial evidence and not based on an

erroneous application of the law, Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th

Cir. 2005), and we may only reverse the ALJ’s decision where the error was not

harmless, see Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Here, the

ALJ disregarded relevant, consistent medical evidence, which means the ALJ’s

decision was not supported by substantial evidence; this error was not harmless, so

we reverse.

The ALJ erred in rejecting the opinion of Dr. Montgomery, Greppi’s treating

physician. The ALJ purported to identify specific ways in which Dr.

Montgomery’s opinion was inconsistent with material aspects of his own treatment

notes. However, “[t]he primary function of medical records is to promote

communication and recordkeeping for health care personnel—not to provide

evidence for a disability determination.” Orn v. Astrue, 495 F.3d 625, 634 (9th

Cir. 2007). Here, the “inconsistencies” in Dr. Montgomery’s treatment notes were

founded on recordings of Greppi’s self-described symptoms, while there was no

inconsistency between Dr. Montgomery’s own observations and his opinion. See

2 Molina, 674 F.3d at 1111 (“In order to reject the testimony of a medically

acceptable treating source, the ALJ must provide specific, legitimate reasons based

on substantial evidence in the record.”). Additionally, Dr. Montgomery’s

treatment notes repeatedly noted Greppi’s inability to work with others, which is

consistent with his opinion that Greppi was markedly impaired in his ability to

interact with others.

Thus, the ALJ should have afforded Dr. Montgomery’s opinion more weight

because he was a treating physician and his opinion was consistent with other

medical evidence in the record. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

1995) (a treating physician’s opinion is typically given more weight than the

opinion of an examining or non-examining physician); see also Morgan v.

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (“The 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.’”) (citation

omitted).

Additionally, the ALJ erred in not affording more weight to the opinion of

Dr. Abraham, one of Greppi’s examining physicians. See Lester, 81 F.3d at 830

(the ALJ typically gives greater weight to the opinion of an examining physician

than to the opinion of a nonexamining physician). To reject the opinion of an

3 examining physician, the ALJ must provide “specific and legitimate reasons that

are supported by substantial evidence.” See Bayliss, 427 F.3d at 1217. Here, the

ALJ rejected Dr. Abraham’s opinion for the same reasons that he rejected Dr.

Montgomery’s opinion. Because the reasons for rejecting Dr. Montgomery’s

opinion were erroneous, those reasons are also erroneous as applied to Dr.

Abraham’s opinion. In addition, Dr. Abraham’s conclusions were independent

from Dr. Montgomery’s; therefore, the ALJ should have assessed those opinions

separately and provided “specific and legitimate reasons” for rejecting each

opinion, rather than simply referring to the reasons given for rejecting Dr.

Montgomery’s opinion as justification for rejecting Dr. Abraham’s opinion.

The errors were not harmless because this error was not “inconsequential to

the ultimate nondisability determination.” Molina, 674 F.3d at 1115. Therefore,

we reverse the district court’s conclusion that the ALJ did not err in weighing the

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

the agency on the remaining issues after properly weighing the medical evidence.

Given this result, we need not—and do not—reach any other issues urged by the

parties.

REVERSED and REMANDED.

4

FILED

Raymond Greppi III v. Saul, No. 19-16030

JUL 2 2020

BUMATAY, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

We are a court of appeals, not a court of first instance. Where the

Administrative Law Judge’s decision is supported by substantial evidence, our

duty is to affirm—even if we think the evidence could be interpreted differently.

42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to

any fact, if supported by substantial evidence, shall be conclusive[.]”); Tackett v.

Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

In finding that the ALJ wrongly rejected the opinions of Greppi’s examining

and treating physicians, the majority commits a two-fold error. First, the majority

takes a turn as the trier of fact, ignoring the applicable standard of review in the

process. Then, without skipping a beat, it blows past the substantial evidence in

the record supporting the ALJ’s reasoning, and overturns its findings.

Prior to this decision, we have explained that where “the evidence can

support either outcome, the court may not substitute its judgment for that of the

ALJ.” Tackett, 180 F.3d at 1098; see also Molina v. Astrue, 674 F.3d 1104, 1111

(9th Cir. 2012) (“Even when the evidence is susceptible to more than one rational

interpretation, we must uphold the ALJ’s findings if they are supported by

inferences reasonably drawn from the record.”). Purporting to apply this standard,

the majority heads off in search of any evidence to overturn the ALJ’s finding, and

1 unsurprisingly, finds it. The ALJ, in discrediting Greppi’s examining and treating

physicians, pointed to specific statements in their treatment notes which conflicted

with their opinions. The majority, in turn, highlights a few other treatment notes

suggesting that the physicians’ evidence was not so self-contradictory. 1 But this is

a classic example of evidence being “susceptible to more than one rational

interpretation.” Molina, 674 F.3d at 1111. And in such cases, the ALJ only has to

clear the bar, and a low one at that. See Andrews v. Shalala, 53 F.3d 1035, 1039

(9th Cir. 1995) (“Substantial evidence means more than a mere scintilla but less

than a preponderance; it is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”). So “disregard[ing] relevant,

consistent medical evidence”—which happens often as ALJs balance competing

facts—is no basis for reversal so long as substantial evidence supports doing so.

Second, and more problematically, the majority ignores the rest of the

record in reversing the ALJ’s determination. The majority focuses solely on the

ALJ’s finding that the examining and treating physicians’ opinions were internally

inconsistent, ignoring the fact that the ALJ is entitled to weigh medical opinion

evidence in light of the record as a whole. See 20 C.F.R. § 404.1527(c)(3)–(4). In

1 And even some of the “consistent” evidence pointed to by the majority is conflicting. For example, despite the majority’s insistence that Dr. Montgomery found Greppi’s concentration “markedly impaired,” the underlying treatment notes merely state that his concentration was “impaired”—not “markedly” impaired. 2 so doing, the majority conveniently ignores that Greppi’s favorable medical

opinion evidence conflicted with, at a minimum, several of his own statements

regarding his disability, the “most recent consultative evaluation’s IQ and other

intellectual functioning scores,” and the evidence of the other non-examining

physicians. See, e.g., Tommasetti v. Astrue, 533 F.3d 1035, 1041–42 (9th Cir.

2008) (affirming where the ALJ’s decision to discredit a treating physician’s

opinion was “supported by the entire record.”).

Finally, it’s worth pointing out one curious effect of the majority’s holding:

on remand, the ALJ must give more weight to Dr. Abraham’s opinion that

Greppi’s impairments could reflect his “continuous use” of controlled substances.

An opinion, incidentally, confirmed by Greppi’s own testimony. Perhaps it bears

noting that the Social Security Act was not designed as a backstop for harms

resulting from substance abuse. See 42 U.S.C. § 423(d)(2)(C) (“An individual

shall not be considered to be disabled for purposes of this subchapter if alcoholism

or drug addiction would . . . be a contributing factor material to the

Commissioner’s determination that the individual is disabled.”); Parra v. Astrue,

481 F.3d 742, 744 (9th Cir. 2007).

I respectfully dissent.

3