NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 1 2021

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

CU NGUYEN, No. 19-56134 Plaintiff-Appellant, D.C. No. 3:18-cv-00590-H-KSC

v.

MEMORANDUM*

ANDREW M. SAUL, Commissioner of Social Security, Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding

Argued and Submitted December 9, 2020 Pasadena, California

Before: BEA, THAPAR,** and COLLINS, Circuit Judges.

Cu Nguyen appeals the district court’s judgment affirming the Social

Security Administration’s denial of Nguyen’s applications for disability insurance

benefits and supplemental security income. We review the district court’s decision

de novo and the agency’s decision for substantial evidence. Benton v. Barnhart,

331 F.3d 1030, 1035 (9th Cir. 2003). We reverse and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Amul R. Thapar, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1. Where there are conflicting medical opinions, the ALJ must provide

“specific and legitimate” reasons, supported by substantial evidence, for rejecting

one opinion in favor of another. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th

Cir. 2005). The ALJ failed to do so.

a. The record contains opinions from at least three medical professionals

attesting to the significant limitations associated with Nguyen’s long-standing

mental illness. Dr. Henderson, a treating psychiatrist, opined in August 2015 that

Nguyen’s severe mental impairments left him with numerous deficiencies,

including a “severe inability to comprehend and follow instructions,” to “maintain

a work pace appropriate to given workload,” and to “perform complex and varied

tasks.” Examining psychologists Dr. Lessner and Dr. Miller administered a

number of psychological tests in 2014 and 2016, respectively, and they produced

detailed reports that similarly concluded that Nguyen had significant mental and

social limitations. Dr. Miller concluded that it was unlikely, “due to the regressed

state of this patient, that there will be any time in the future that he will be able to

return to work, even a sedentary job with low stress, due to his concentration

problems, his anxiety and his short term memory problems.”

In discounting these opinions, the ALJ instead placed “significant weight”

on the opinion of psychologist Dr. Ning. The ALJ noted that, in contrast to Dr.

Henderson’s conclusions, Dr. Ning had opined in May 2013 that Nguyen’s

2 “symptoms have stabilized and improved with treatment.” The ALJ also noted that

Dr. Ning had similarly concluded in August 2013 that Nguyen’s condition “has

been stable with the help of medications.” In explaining why he gave significant

weight to Dr. Ning’s opinion, the ALJ stated that “Dr. Ning has had the

opportunity to treat [Nguyen] over time and is familiar with [Nguyen’s] full mental

condition.” By contrast, the ALJ noted, Dr. Miller “only examined the claimant

during a single session” and Dr. Lessner only conducted a “one-time examination.”

The ALJ therefore concluded that these opinions did “not merit the same weight

that would be given to a treating physician with a treating relationship of a longer

duration.” The ALJ also pointed out that Dr. Ning’s opinion was supported by a

“progress note” from January 2014 in which, according to the ALJ, a nurse

practitioner reported “some improvement.”

We conclude that the ALJ’s resolution of the conflicting medical evidence

was not based on a “legitimate” reason that is supported by substantial evidence.

The administrative record contains only two evaluations from Dr. Ning, one in

May 2013 and the other in August 2013. Both of these involved the completion of

state or county questionnaires, and only the May 2013 report affirmatively

mentions that it was based on a personal session with Nguyen. (The August 2013

report was completed by Dr. Ning on behalf of the clinic, drawing at least in part,

if not entirely, on the clinic’s records.) The ALJ did not point to any other record

3 evidence to support the assertion that “Dr. Ning has had the opportunity to treat the

claimant over time” and had a “treating relationship of a longer duration.” By

contrast, the ALJ acknowledged elsewhere in his decision that Dr. Henderson

treated Nguyen “approximately once a month” in the 16-month period between

June 2014 and September 2015. Because Dr. Henderson indisputably had a long-

term treating relationship with Nguyen, the ALJ’s stated reason for favoring Dr.

Ning’s opinion provides no grounds for rejecting Dr. Henderson’s. If anything,

that rationale would favor accepting Dr. Henderson’s views rather than Dr. Ning’s.

And given the record evidence of only two evaluations by Dr. Ning—one of which

may not have been based on a personal examination—the ALJ’s rejection of the

detailed assessments made in single sessions by Dr. Lessner and Dr. Miller is

likewise not based on a legitimate reason that is supported by substantial evidence.

b. Moreover, the ALJ failed adequately to address the difference in the time

frame reflected in the conflicting medical testimony. The evaluations made by Dr.

Ning occurred in May 2013 and August 2013, and the nurse’s treatment notes were

from January 2014. But Dr. Henderson treated Nguyen from June 2014 through

September 2015; the examination of Dr. Lester occurred in July 2014; and Dr.

Miller’s examination was in April 2016. The ALJ dismissed this temporal

disparity on the ground that, after Dr. Ning’s reports and the nurse’s treatment

notes, there were “no further reports in the record that document such a severe

4 decrease in mental functioning.” But this amounts to little more than bootstrap

reasoning, because the later reports that the ALJ rejected did document severe

limitations in mental functioning in that later time frame. And the ALJ completely

ignored the June 2015 report completed by Dr. De Guzman, another treating

psychiatrist, which described significant impairments.

2. Because the ALJ relied on his flawed evaluation of the medical evidence

in rejecting the testimony of Nguyen and his family members, “the ALJ did not

properly discount” that testimony. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir.

2014) (simplified). The same is true of the ALJ’s consideration of the testimony of

Dr. Simonds, a reviewing psychiatrist: in particular, the ALJ rejected portions of

his testimony on the ground that they were “largely based on the findings of other

doctors” whose opinions the ALJ had discounted. Any such testimony will need to

be reevaluated on remand.

3. In view of the foregoing, “we remand to the district court with

instructions to remand to the ALJ on an open record for further proceedings,” and

“we express no view as to the appropriate result on remand.” Id. at 1142.

REVERSED and REMANDED.

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