FILED

NOT FOR PUBLICATION JUN 21 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

REBECCA I. MORGAN, No. 12-35107

Plaintiff-Appellant, D.C. No. 2:11-cv-00422-JLR

v.

MEMORANDUM *

CAROLYN W. COLVIN, ACTING

COMMISSIONER OF SOCIAL

SECURITY,**

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Argued and Submitted June 4, 2013 Seattle, Washington

Before: MCKEOWN and IKUTA, Circuit Judges, and CARNEY, District Judge.***

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** Carolyn W. Colvin is substituted for her predecessor as Commissioner of Social Security, pursuant to Fed. R. App. P. 43(c)(2). *** The Honorable Cormac J. Carney, United States District Judge for the Central District of California, sitting by designation. Rebecca Morgan appeals the district court’s order affirming the

Commissioner of the Social Security Administration’s (“the Commissioner”)

denial of disability insurance benefits under Title II of the Social Security Act, 42

U.S.C. §§ 401 et seq. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review the district court’s order de novo. Hiler v. Astrue, 687 F.3d 1208, 1211 (9th

Cir. 2012). The scope of our review of the Commissioner’s denial of disability

benefits is limited. “We may set aside a denial of benefits only if it is not

supported by substantial evidence or is based on legal error.” Bray v. Comm’r of

Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc.

Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). However, even if the

administrative law judge (“ALJ”) committed a legal error, we will not reverse “for

errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

Morgan contends that the ALJ erred by improperly according “substantial

weight” to the opinion of a non-physician single decision maker (“SDM”),

discounting the opinions of her treating physicians, considering symptoms

unrelated to fibromyalgia, and finding that she could still perform past relevant

work as a general office clerk and other jobs that exist in significant numbers in the

national economy, including housekeeper, mail clerk, and small products

assembler. We reverse and remand for further proceedings.

2 The ALJ erred in according substantial weight to the opinion of Wayne S.

Rhodes, a non-physician SDM, in determining Morgan’s residual functional

capacity. An ALJ may not accord any weight, let alone substantial weight, to the

opinion of a non-physician SDM. See Program Operations Manual System DI

24510.050 (“SDM-completed forms are not opinion evidence at the appeal

levels.”).1 The ALJ mistakenly believed that Mr. Rhodes was a physician, and

made four references to him as “Wayne S. Rhodes, M.D.” or “Dr. Rhodes” in her

written decision.

The ALJ’s error was not harmless because the ALJ’s reliance on Mr.

Rhodes’ opinion was consequential to the ultimate nondisability determination.

See Molina v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 2012). Indeed, the ALJ

herself stated that she gave the opinion “substantial weight.” Furthermore, central

to the ALJ’s ultimate nondisability determination was the finding that Morgan had

the residual functional capacity to perform work at a light level. Without such a

finding, the ALJ could not have determined at later steps in the sequential

evaluation process that Morgan was capable of performing past relevant work and

other jobs that exist in significant numbers in the national economy. Mr. Rhodes’

1 “The [Program Operations Manual System] does not have the force of law, but it is persuasive authority.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1005 (9th Cir. 2006).

3 opinion was the only “medical” opinion to find that Morgan was physically

capable of performing work at a light level. No other physician, treating or

otherwise, directly opined that Morgan was physically able to perform light work.

Mr. Rhodes’ opinion was also the only “medical” opinion to directly controvert

Morgan’s self-reported physical limitations. In contrast, Morgan’s treating

physicians, Dr. Ihle and Dr. Olson, described her reported limitations as

reasonable.

The fact that Mr. Rhodes’ opinion was affirmed by Robert Hoskins, M.D.,

does not render the ALJ’s error harmless. A reviewing court must limit itself to the

evidence actually mentioned or relied on by the ALJ, not evidence that the ALJ

could have relied on to support her decision. See Bray, 554 F.3d at 1225 (“Long-

standing principles of administrative law require us to review the ALJ’s decision

based on the reasoning and factual findings offered by the ALJ — not post hoc

rationalizations that attempt to intuit what the adjudicator may have been thinking.”).

The dissent is correct that the ALJ was required to consider Dr. Hoskins’ opinion.

On remand she should do so. We cannot know now whether the ALJ would give the

same “substantial weight” to a physician’s opinion summarily affirming a non-

physician’s opinion as she gave to what she mistakenly believed to be a physician’s

opinion.

4 An ALJ must evaluate a physician’s explanations for his opinion, and the

weight given to an opinion depends on the strength of such explanations. See 20

C.F.R. § 404.1527(c)(3) (“The better an explanation a source provides for an

opinion, the more weight we will give that opinion.”). This is particularly true for

the opinions of nonexamining physicians, like Dr. Hoskins. See id. (“[B]ecause

nonexamining sources have no examining or treating relationship with you, the

weight we will give their opinions will depend on the degree to which they provide

supporting explanations for their opinions.”). Dr. Hoskins’ entire opinion consists

of one sentence: “This is to affirm that I have noted the data in this file and the

assessment of 9/29/05 is affirmed as written.” The ALJ may very well decide to

give less than substantial weight to such a cursory opinion.

Because the ALJ erred in according substantial weight to a non-physician

SDM’s opinion, we need not consider Morgan’s remaining grounds for appeal.

However, we note that on remand, the ALJ should consider her decision in light of

Benecke v. Barnhart, 379 F.3d 587 (9th Cir. 2004), and Vertigan v. Halter, 260 F.3d

1044 (9th Cir. 2001).

REVERSED AND REMANDED.

5

FILED

JUN 21 2013

Morgan v. Astrue, No. 12-35107

MOLLY C. DWYER, CLERK

U .S. C O U R T OF APPE ALS

IKUTA, Circuit Judge, dissenting:

The ALJ accorded substantial weight to the report of Wayne S. Rhodes, but

mistakenly referred to Rhodes as a physician. In deciding whether this mistake

was harmless, we must “‘apply the same kind of harmless-error rule that courts

ordinarily apply in civil cases.’” Molina v. Astrue, 674 F.3d 1104, 1118 (9th Cir.

2012) (quoting Shinseki v. Sanders, 556 U.S. 396, 406 (2009)). Thus, an ALJ’s

errors are harmless “if they are inconsequential to the ultimate nondisability

determination.” Id. at 1121 (internal quotation marks omitted). Here, the ALJ’s

mistake in referring to Rhodes as a physician was inconsequential because

Rhodes’s report was affirmed “as written” by a physician, Dr. Robert Hoskins,

who reviewed the same information as Rhodes did.

Because Dr. Hoskins affirmed the Rhodes report “as written” the report

served as Dr. Hoskins’s opinion and findings. Accordingly, the ALJ was required

to consider the report. 20 C.F.R. § 404.1527(e)(2)(i) (“[A]dministrative law judges

must consider findings and other opinions of State agency medical and

psychological consultants . . . .”). Although the ALJ mistakenly attributed the

report’s opinions and findings to a “Dr. Rhodes,” nothing in the record suggests

that the ALJ would have given any less weight to the identical opinions and findings of Dr. Hoskins regarding the same medical evidence.

The majority asserts that internal agency guidance prohibited the ALJ from

considering the report of a Single Decision Maker like Rhodes. Maj. Op. at 3. But

that guidance is not relevant here, because the findings and opinions in this case

were affirmed and adopted by a physician, and thus constitute medical source

evidence that the ALJ was required to consider. See § 404.1527(e)(2)(i).

Moreover, internal agency guidance is not binding on this court or on ALJs.

Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1072–73 (9th Cir. 2010).

Because the ALJ’s error was inconsequential to the ultimate nondisability

determination, I respectfully dissent.

2